Opinion
Civil Action 19-cv-02042-PAB-MEH
08-18-2020
DAVID MONTGOMERY, and WILLIAM MONTGOMERY, Plaintiffs, v. MARK BLILEY, WAYNE LOLOTAI, and KEEGAN CARRICK, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Michael E. Hegarty, United States Magistrate Judge
Before the Court is Defendants' Motion for Summary Judgment (ECF 33). Plaintiffs, proceeding pro se, initiated this lawsuit on July 15, 2019, alleging two claims for relief. ECF 1. During initial review, the Honorable Lewis T. Babcock dismissed Plaintiffs' second claim for false arrest in violation of the Fourth Amendment. ECF 8, 10. Plaintiffs allege the remaining claim pursuant to 42 U.S.C. § 1983, asserting that the individual Defendants violated their Fourth Amendment rights to be free from an unlawful seizure. See id. Defendants filed an Answer in response to the Complaint, then filed the present motion on June 15, 2020, arguing that Plaintiffs' claim should be dismissed because Defendants, in their individual capacities, are entitled to qualified immunity. ECF 31, 33. For the following reasons, the Court respectfully recommends that the Honorable Philip A. Brimmer grant Defendants' motion.
FINDINGS OF FACT
The Court makes the following findings of fact viewed in the light most favorable to the Plaintiffs, who are the non-moving parties in this case. Unless otherwise cited, these facts are undisputed.
1. At approximately 6:30 p.m. on Friday, July 14, 2017, Defendant Officer Mark Bliley (“Bliley”) of the Boulder Police Department, while driving his marked patrol vehicle, observed the Plaintiffs, David Montgomery (“David”) and William Montgomery (“William”), standing on raised medians on Walnut Street in Boulder, Colorado. Bliley perceived that the Plaintiffs were panhandling. Public Peace Offense Report of Officer Mark Bliley, July 14, 2017, ECF 33-2.
2. The medians on which Plaintiffs stood were located in the middle of Walnut Street at the intersection of Walnut and 28th Street in Boulder, Colorado.
3. David stood on the median on the west side of the intersection and William stood on the median on the east side of the intersection.
4. Both Walnut Street and 28th Street are paved asphalt roads in the City of Boulder that provide pedestrian, bicycling, and vehicle access to various locations within the City.
5. At the relevant time, on Walnut Street, near the locations where Plaintiffs were standing, were visible signs reflecting that Walnut was a “private street, no city maintenance.” ECF 39-1; 33-11. Defendants “do not dispute on this Motion that posted signs in close proximity to the medians indicate that the medians Plaintiffs panhandled on were located on private property and publicized restrictions on public use of and access to that property.” Reply at 3.
6. The raised medians located on Walnut Street, on which Plaintiffs stood, physically separated vehicles travelling east and west on Walnut, were surrounded by concrete curbing, and were less than five feet wide.
7. U.S. Highway Route 36 runs concurrently with 28th Street in Boulder, including at the intersection of 28thStreet and Walnut Street.
8. Bliley first contacted David and requested that he move off the median, because Bliley believed David was not permitted to panhandle there.
9. David refused to move, arguing that Walnut Street was a private street and, thus, he had a right to be there.
10. Bliley repeated that it was illegal to panhandle on the median and ordered David to move off the median and sit on the curb on the northwestern corner of Walnut Street and 28th Street.
11. David complied and continued to argue that he had a right to stand on the median.
12. As Bliley spoke with David about the citation process for a municipal violation, William crossed 28th Street from the median on which he stood, approached Bliley, and interrupted the discussion.
13. Bliley asked William for identification; William complied and argued that the medians on which he and David stood were on a “private drive.”
14. At that point, Bliley directed William to sit on the curb next to David; William complied and asked additional questions regarding Bliley's identification and authority.
15. Bliley explained to Plaintiffs that he had detained them because he “was worried about both of yours [sic] safeties [sic] because you were panhandling on a median.” See Video, July 14, 2017, at 02:19Z - 03:00Z, ECF 33-8; see also ECF 33-2 at 3.
16. Bliley had observed Plaintiffs standing on portions of the medians that put them in direct view of drivers passing through or making a tum at the intersection of Walnut Street and 28th Street.
17. Bliley further explained to Plaintiffs that by panhandling on the medians, they engaged in prohibited conduct under an “ordinance” that barred such conduct on “any medians less than thirty feet in width” for “safety” reasons. See Video, July 14, 2017, at 03:11Z - 03:22Z.
18. Plaintiffs responded that they were justified in standing on the medians because the medians were located on a privately owned and maintained road, and they repeatedly sought to prove Walnut Street's privately owned and maintained status.
19. Defendants Officers Keegan Carrick (“Carrick”) and Waylon Lolotai (“Lolotai”) arrived at the scene to cover Bliley after he detained Plaintiffs.
20. Carrick and Lolotai stood with Plaintiffs while Bliley returned to his patrol vehicle, investigated Plaintiffs' identifications, and issued to both Plaintiffs citations for violating Section 5-6-16 of the Boulder Revised Code (“B.R.C.”).
21. As Carrick and Lolotai stood with them, Plaintiffs continued to argue that they were justified in standing on the medians because Walnut Street was a privately owned and maintained road.
22. When Bliley approached from his patrol vehicle, he handed the citations to the Plaintiffs and explained their content; the Plaintiffs continued to argue over the justification for their detention and refused to sign the citations. Bliley then released the Plaintiffs.
LEGAL STANDARDS
A motion for summary judgment serves the purpose of testing whether a trial is required. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). A court shall grant summary judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). “A dispute is genuine if there is sufficient evidence so that a rational trier of fact could resolve the issue either way. A fact is material if under the substantive law it is essential to the proper disposition of the claim.” Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011) (internal citations and quotation marks omitted).
It is the movant's burden to demonstrate that no genuine dispute of material fact exists for trial, whereas the nonmovant must set forth specific facts establishing a genuine issue for trial. See Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010). The moving party bears the initial responsibility of providing to the court the factual basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[W]here the moving party has the burden of proof-the plaintiff on a claim for relief or the defendant on an affirmative defense-his[, her, or its] showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.” Leone v. Owsley, 810 F.3d 1149, 1153 (10th Cir. 2015) (quoting Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986)).
If the movant properly supports a motion for summary judgment, the non-moving party has the burden of showing there are issues of material fact to be determined. Celotex, 477 U.S. at 322. That is, the opposing party may not rest on the allegations contained in his complaint but must respond with specific facts showing a genuine factual issue for trial. Fed.R.Civ.P. 56(e); Scott v. Harris, 550 U.S. 372, 380 (2007) (“The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”); see also Hysten v. Burlington N. & Santa Fe Ry., 296 F.3d 1177, 1180 (10th Cir. 2002). These specific facts may be shown “‘by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.'” Pietrowski v. Town of Dibble, 134 F.3d 1006, 1008 (10th Cir. 1998) (quoting Celotex, 477 U.S. at 324); see also Mountain Highlands, LLC v. Hendricks, 616 F.3d 1167, 1170 (10th Cir. 2010) (“On those issues for which it bears the burden of proof at trial, the nonmovant “must go beyond the pleadings and designate specific facts so as to make a showing sufficient to establish the existence of an element essential to [its] case in order to survive summary judgment.”) (quoting Cardoso v. Calbone, 490 F.3d 1194, 1197 (10th Cir. 2007)).
In considering the evidence, the court cannot and does not weigh the evidence or determine the credibility of witnesses. See Fogarty v. Gallegos, 523 F.3d 1147, 1165-66 (10th Cir. 2008). Further, the court may consider only admissible evidence, see Gross v. Burggraf Const. Co., 53 F.3d 1531, 1541 (10th Cir. 1995), though the evidence need not be in a form that is admissible at trial; only the content or substance must be admissible at trial, see Brown v. Perez, 835 F.3d 1223, 1232 (10th Cir. 2016) (“The requirement is that the party submitting the evidence show that it will be possible to put the information, the substance or content of the evidence, into an admissible form.”) (citation omitted). Indeed, “[t]o determine whether genuine issues of material fact make a jury trial necessary, a court necessarily may consider only the evidence that would be available to the jury.” Argo v. Blue Cross & Blue Shield of Kansas, Inc., 452 F.3d 1193, 1199 (10th Cir. 2006). “The court views the record and draws all inferences in the light most favorable to the nonmoving party.” Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. Pepsico, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005); see also Zia Shadows, L.L.C. v. City of Las Cruces, 829 F.3d 1232, 1236 (10th Cir. 2016).
II. Treatment of a Pro Se Plaintiff's Complaint
A federal court must construe a pro se plaintiff's “pleadings liberally, applying a less stringent standard than is applicable to pleadings filed by lawyers. [The] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.1997) (quotations and citations omitted). The Tenth Circuit interpreted this rule to mean “if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, this interpretation is qualified in that it is not “the proper function of the district court to assume the role of advocate for the pro se litigant.” Id.; see also Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir.2009). Accordingly, the Court must “not supply additional facts, nor construct a legal theory for plaintiff that assumes facts that have not been pleaded.” Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir.1998) (citing Dunn v. White, 880 F.2d 1188, 1197 (10th Cir.1989)).
ANALYSIS
The remaining claim for relief seeks recovery by both Plaintiffs for the Defendants' alleged violation of the Fourth Amendment for “unlawful seizure (detainment) absent reasonable suspicion.” Compl. ¶¶ 15-21; Order, ECF 10. Defendants seek summary judgment, arguing they are entitled to qualified immunity. Mot., ECF 33. Qualified immunity protects from litigation a public official whose conduct did not violate clearly established law at the time of the official's actions. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “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 (2009). Because qualified immunity is an immunity from suit, rather than a mere defense to liability, it is effectively lost if a case is erroneously permitted to go to trial. Id. at 231; Ahmad v. Furlong, 435 F.3d 1196, 1198 (10th Cir. 2006) (“The privilege is an immunity from suit rather than a mere defense to liability.”).
When a defendant asserts qualified immunity at summary judgment, the plaintiff has a twofold burden to overcome the asserted immunity: (1) “rebut the [defendant's] no-constitutionalrights arguments”; and (2) “demonstrate that any constitutional violation was grounded in then-extant clearly established law.” Cox v. Glanz, 800 F.3d 1231, 1245 (10th Cir. 2015) (citing Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009)); see also Felders v. Malcom, 755 F.3d 870, 877-78 (10th Cir. 2014) (“[T]he ‘record must clearly demonstrate the plaintiff has satisfied his heavy two-part burden; otherwise, the defendants are entitled to qualified immunity.'” (quoting Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001))). An official's conduct violates clearly established law when, at the time of the challenged conduct, “[t]he contours of [a] right [are] sufficiently clear” that every “reasonable official would have understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). To satisfy the clearly established prong of the test, the Tenth Circuit requires that “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.” Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010).
Traditionally, there has been a two-step process for resolving qualified immunity questions: “First, a court must decide whether the facts that a plaintiff has alleged . . . or shown . . . make out a violation of a constitutional right ....Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was clearly established at the time of the defendant's alleged misconduct.” Pearson, 555 U.S. at 232 (quoting Saucier v. Katz, 533 U.S. 194 (2001) (internal citations and quotation marks removed)). However, the Supreme Court has afforded courts the discretion to decide “which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Id. at 236; see also Christensen v. Park City Mun. Corp., 554 F.3d 1271, 1277 (10th Cir. 2009).
Plaintiffs allege that Defendants violated their Fourth Amendment rights against unreasonable seizure by unlawfully detaining them “without possessing arguable, reasonable, articulate, and particularized suspicion to fairly believe that either one of them had recently committed, were currently committing, or were about to commit any crimes.” Compl. ¶ 16. Defendants argue that Plaintiffs have failed to identify any “clearly established law” supporting their stated “right” and that the seizure of each Plaintiff was justified by reasonable, articulable suspicion. In the context of Defendants' asserted qualified immunity, Plaintiffs must carry the “heavy” two-part burden of showing Defendants' conduct violated their Fourth Amendment rights and that the rights were clearly established at the time of the violation. Riggins, 572 F.3d at 1107; see also Puller v. Baca, 781 F.3d 1190, 1196 (10th Cir. 2015).
I. Whether Defendants Violated Plaintiffs' Fourth Amendment Rights
The Supreme Court and the Tenth Circuit recognize three types of police/citizen encounters: consensual encounters, investigative detentions, and arrests. Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir. 2000). In this case Plaintiffs and Defendants characterize the initial encounters as investigative detentions. See Mot. at 9; Resp. at 1.
“The Fourth Amendment permits a police officer to ‘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.”'” Donahue v. Wihongi, 948 F.3d 1177, 1188 (10th Cir. 2020) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). 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, 209 F.3d at 1186.
“Reasonable suspicion must be more than an ‘inchoate and unparticularized suspicion or hunch.'” Donahue, 948 F.3d at 1188 (quoting Alabama v. White, 496 U.S. 325, 329 (1990)). “But it is a less demanding standard than probable cause and can be established with information differ[ing] in quantity or content or that is less reliable.” Id. (citations and internal quotation marks omitted).
To determine whether an officer had reasonable suspicion, “courts consider the totality of the circumstances”:
The determination “must be based on commonsense judgments and inferences about human behavior.” Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). “A determination that reasonable suspicion exists, however, need not rule out the possibility of innocent conduct.” [United States v.] Arvizu, 534 U.S. [266, ] 277, 122 S.Ct. 744 [(2002)]. “[R]easonable suspicion may exist even if it is more likely than not that the individual is not involved in any illegality.” Mocek v. City of Albuquerque, 813 F.3d 912, 923 (10th Cir. 2015) (quotations omitted).Id.; see also Vondrak v. City of Las Cruces, 535 F.3d 1198, 1206-07 (10th Cir. 2008) (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)) (‘officers [may] draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.'”).
In adjudicating a motion for summary judgment seeking dismissal of a claim for unlawful detention, courts must “draw all facts and inferences in [the non-movant's] favor and determine whether reasonable suspicion existed as a question of law.” Donahue, 948 F.3d at 1192; see also id. at 1187 (“‘where there are no disputed questions of historical fact . . . such as on summary judgment,' the court ‘make[s] the . . . determination [of reasonable suspicion, probable cause, or excessive force] on its own' as a question of law.”) (quoting Cavanaugh v. Woods Cross City, 718 F.3d 1244, 1253 (10th Cir. 2013)).
A. Did Defendants Have Reasonable Suspicion that Plaintiffs Violated B.R.C. § 5-6-16?
Here, Defendants assert that Bliley had reasonable, articulable suspicion that the Plaintiffs were violating Boulder Revised Code (“B.R.C.” or “Code”) § 5-6-16 when he detained them for standing on medians on Walnut Street. That ordinance provides:
5-6-16. - Staying on Medians Prohibited.
(a) No person shall stand or be upon a median of any street for longer than is reasonably necessary to cross the street.
(b) For the purposes of this section, median means:
(1) The area of a street, generally in the middle, which separates traffic traveling in one direction from traffic traveling in another direction, or which, at intersections, separates traffic turning left from traffic proceeding straight. Such an area is physically defined by curbing, landscaping, or other physical obstacles to the area's use by motor vehicles, or by traffic control markings which prohibit use of a portion of the pavement of a street by motor vehicles other than to drive generally perpendicularly across the markings, or to wait there awaiting the opportunity to cross or merge with the opposing lanes of traffic (also known as painted medians, which are wider thana double yellow line); or
(2) The area of a street at an intersection between the streets and a right turn only lane, roughly triangular in shape, and separated from the motor vehicular traffic lanes by curbing, landscaping, or other physical obstacles to the area's use by motor vehicles (also known as a right turn island).
(c) This section does not apply to medians which are thirty or more feet wide, to the medians on Mapleton Avenue between Fourth Street and Ninth Street, or to persons maintaining or working on the median for the government which owns the underlying right of way or for a public utility.B.R.C. § 5-6-16. Defendants assert that, even if Plaintiffs are correct that Walnut Street is a private road not subject to the ordinance's prohibition, Bliley reasonably suspected the possibility of a violation because the Code is vague in its definition of a “street” and any mistake by Bliley cannot negate that he acted reasonably in detaining the Plaintiffs. Plaintiffs counter that Bliley did not act reasonably, because the medians on which they stood were located on Walnut Street, which is clearly marked with signs saying “private street, no city maintenance” and both Plaintiffs repeatedly expressed to the Defendants during their detention that the signs made clear they were standing on a private street.
This subsection was amended by Ordinance No. 8382 on May 5, 2020, but the amendment is neither applicable nor relevant to the Court's analysis.
Pursuant to the prevailing law, this Court recommends that Judge Brimmer find Defendants did not have reasonable, articulable suspicion that Plaintiffs were violating Boulder's ordinance. It is undisputed that the portion of Walnut Street on which Plaintiffs stood was marked with visible signs reflecting that the street was “private” and enjoyed “no city maintenance.” It is also undisputed that Plaintiffs repeatedly attempted to bring the Defendants' attention to the signs and argued that the ordinance did not apply. Under these circumstances, the Court finds that Defendants could not reasonably suspect the Plaintiffs were violating B.R.C. § 5-6-16.
The Court notes that Judge Brimmer recently adjudicated Fourth Amendment claims by these Plaintiffs in a different case, in which the Plaintiffs argued they were standing on medians on a private road and, thus, the officer did not have reasonable suspicion that Plaintiffs committed a violation of a city ordinance. Judge Brimmer found, “It does not matter, for purposes of the reasonable suspicion analysis, that the median at which David was standing turned out to be private. Plaintiffs' complaint states that there were no signs indicating whether the street was private or not.” Montgomery v. Valandra, No. 18-cv-02897-PAB, 2020 WL 1672761, at *3 (D. Colo. Apr. 6, 2020). Based on the undisputed visible signs here, the Court finds this case is distinguishable.
Defendants contend that Bliley's suspicion was reasonable because the ordinance is ambiguous, particularly with respect to the Code's definition of “street.” See B.R.C. § 5-6-16(a) (“No person shall stand or be upon a median of any street ....”). Pursuant to B.R.C. § 7-1-1, “street” is defined as “the entire width between the property boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel and includes, without limitation, alleys or the entire width of every way declared to be a public highway by any law.” Defendants assert that the term “publicly maintained” is modified by “when any part thereof is open to use of the public for the purposes of vehicular travel.” In other words, the definition may be construed as “a road is publicly maintained when it is open to use for driving by the public.” The Court finds such construction non-sensical; a street is not maintained by the government simply by being open to the public for vehicular travel. Rather, the only reasonable construction of the definition is that a “street” consists of publicly maintained property that provides a “way” on which the public is permitted to drive.
In coming to this conclusion, the Court relies on the plain language and common understanding of the word “maintain, ” which is defined by the Merriam-Webster Dictionary as “to keep in an existing state (as of repair, efficiency, or validity): preserve from failure or decline.” See https://www.merriam-webster.com/dictionary/maintain, last visited August 17, 2020.
Defendants also assert that the definition of “public right of way” in the Code demonstrates that “determining whether a road is ‘publicly maintained' under the B.R.C. is divorced from who owns or keeps the road open for the purpose of public vehicular travel.” Mot. 14. “Public right of way” is defined as “the entire area between property boundaries which is: owned by a government, dedicated to public use or impressed with an easement for public use; primarily used for pedestrian or vehicular travel; and publicly maintained, in whole or in part, for such use. Right of way includes, without limitation, the public street, shoulder, gutter, curb, sidewalk, sidewalk area, parking or parking strip and any other public way.” B.R.C. § 1-2-1. Defendants contend that the definition “distinguishes between roads on governmentally owned land and roads that are ‘publicly maintained,' and focuses the inquiry into the character of the road's use to determine whether a road is ‘publicly maintained.'” Again, the Court finds the latter half of this contention unsupported and unpersuasive; the former half is incorrect. The definition simply lists the characteristics of a public right of way: (1) property owned by a government and dedicated to public use; (2) which is primarily used for pedestrian or vehicular travel; and (3) publicly maintained, in whole or in part. The Court is not convinced that this definition renders the definition of “street” ambiguous.
Further, Defendants argue that, because the definition of “street” in the Code mirrors the definition of “highway” in Colo. Rev. Stat. § 42-1-102(43), this Court should follow Colorado law interpreting the statute for the proposition that “any way publicly maintained . . . means any road open and accessible to the general public for the purpose of vehicular travel.” Mot. 14-15. Notably, for support of their argument, Defendants cite to an opinion by Judge Brimmer in a criminal matter, in which he was asked to review this Court's finding as to an element of a misdemeanor, for the proposition that “the principal distinction between a public road and a private road is the extent to which the road is open for public use.” Mot. 15 (citing United States v. Jimenez, No. 16-cr-00370-PAB, (D. Colo. June 22, 2018)). In that case, unlike here, Judge Brimmer compared Colorado's definition of “highway” with its definition of “private road” or “driveway, ” which is set forth in Colo. Rev. Stat. § 42-1-102(73): “every road or driveway not open to the use of the public for purposes of vehicular travel.” See Jimenez, Order at 12. Here, Boulder's definition of “private driveway” is quite different: “every surface designed for vehicular travel and not owned by a public authority.” B.R.C. § 7-1-1. This definition undercuts Defendants' contention that a road open for vehicular travel must be “public” or “publicly maintained.” Moreover, a comparison of Boulder's definitions of “street” and “private driveway” demonstrates that a private street in Boulder is not “publicly maintained” as set forth in the Code. In fact, the signs located on Walnut Street make clear that the street is not maintained by the city.
In addition, Defendants contend that interpreting “streets” only as roads that are publicly maintained “patently conflicts with the legislative intent and purpose of Section 5-6-16 and B.R.C.'s vehicle and traffic regulatory regime.” Mot. at 15. Notably, Section 5-6-16 is found under Title 5, governing General Offenses, and under Chapter 6, governing Miscellaneous Offenses. The “legislative intent” listed for Title 5 states: “The provisions of this chapter apply to all prosecutions in municipal court for violation of this code, any ordinance of the City or rule promulgated pursuant thereto.” B.R.C. § 5-2-1. Nevertheless, even if the city council intended that Section 5-6-16 be enacted “to protect the health, safety, welfare, and convenience of the public” (B.R.C. § 7-2-1), the Court finds it is not inconsistent to construe Boulder's ordinances as applicable to publicly owned and/or maintained streets. As “owner” of public streets, it is incumbent upon the city to enact ordinances regulating them. In similar fashion, owners of private property typically impose restrictions as to public access. In fact, as demonstrated by Plaintiffs' photograph of a sign on Walnut Street, the owner of the property set forth its own prohibitions with respect to both pedestrians and vehicles on the property. See ECF 39-1.
The Court finds Defendants fail to demonstrate that Boulder's Code is ambiguous with respect to its definition of “street”; therefore, the Court rejects Defendants' contention that they had reasonable, articulable suspicion the Plaintiffs were committing or about to commit a crime based on an ambiguity of the ordinance. “If it is appropriate to presume that citizens know the parameters of the criminal laws, it is surely appropriate to expect the same of law enforcement officers-at least with regard to unambiguous statutes.” Northrup v. City of Toledo Police Dep't, 785 F.3d 1128, 1132 (6th Cir. 2015) (citing Heien v. North Carolina, 574 U.S. 54, 67 (2014)).
Defendants assert that, even if they were mistaken that Plaintiffs violated, or were about to violate, the ordinance, such mistake does not negate reasonable suspicion. The Court is mindful of the Tenth Circuit's admonition that “reasonable suspicion may exist even if it is more likely than not that the individual is not involved in any illegality.” Mocek v. City of Albuquerque, 813 F.3d 912, 923 (10th Cir. 2015); see also United States v. Johnson, 364 F.3d 1185, 1194 (10th Cir. 2004) (“as long as he has a particularized and objective basis for suspecting an individual may be involved in criminal activity, [an officer] may initiate an investigatory detention even if it is more likely than not that the individual is not involved in any illegality.”). However, the cases cited by Defendants and reviewed by the Court do not involve circumstances in which evidence is clearly visible that Plaintiffs were not violating the median ordinance. Defendants admit that the signs identifying Walnut Street as “private” were in close proximity to the medians on which Plaintiffs stood. In addition, the video submitted by Defendants reveals that the Plaintiffs repeatedly pointed to the signs and argued they were standing on private property. This is not a case in which Bliley had initially received a complaint or was otherwise informed by a third party of a potential violation (see, e.g., Donahue, 948 F.3d at 1192; Mocek, 813 F.3d at 923; United States v. McHugh, 639 F.3d 1250, 1256 (10th Cir. 2011)), or the Plaintiffs admitted at the time that they were “staying” on the medians (see, e.g., Vondrak, 535 F.3d at 1207), or the Plaintiffs refused to provide identification and left the scene (see, e.g., Oliver, 209 F.3d at 1187-88).
“The Fourth Amendment tolerates only reasonable mistakes, and those mistakes-whether of fact or of law-must be objectively reasonable.” Heien, 574 U.S. at 66 (emphasis in original). Considering the totality of the circumstances, the Court cannot conclude that a reasonable police officer, who knows that the Code regulates city “streets, ” would be reasonably suspicious of a violation on a street that is clearly and indisputably marked, “private - no city maintenance.” See id. at 67 (“an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce”). The Defendants here were not faced with a situation in which the existence of a violation was ambiguous. See United States v. Cortez-Galaviz, 495 F.3d 1203, 1206 (10th Cir. 2007) (“Indeed, the resolution of particularized and objective yet still ambiguous- potentially lawful, potentially unlawful-facts is the central purpose of an investigative detention.”). Therefore, the Court respectfully recommends that Judge Brimmer deny Defendants' motion based on a reasonable suspicion of a violation of B.R.C. § 5-6-16.
Notably, the Court in Heien, while assessing whether an officer had acted reasonably when engaging in a mistake of law during a traffic stop, stressed that “qualified immunity . . . depends on an inquiry distinct from whether an officer has committed a constitutional violation” and that “the [constitutional-violation] inquiry is not as forgiving as the one employed in the distinct context of deciding whether an officer is entitled to qualified immunity for a constitutional or statutory violation.” Heien, 574 U.S. at 63, 67. While these findings may be interpreted to limit the Court's holding to cases involving motions to suppress as opposed to §1983 claims, this Court notes that the Tenth Circuit has applied Heien to § 1983 cases. See Attocknie v. Smith, 798 F.3d 1252, 1257 (10th Cir. 2015) (citing Heien for the proposition that “[t]he Fourth Amendment tolerates only reasonable mistakes, and those mistakes-whether of fact or of law-must be objectively reasonable. We do not examine the subjective understanding of the particular officer involved.”); see also Scott v. City of Albuquerque, 711 Fed.Appx. 871, 877 n.6 (10th Cir. 2017). Moreover, at least one court has interpreted the Supreme Court's statements as distinguishing between the two prongs necessary to prove qualified immunity rather than between § 1983 cases and cases involving motions to suppress: “What ‘every reasonable' official would have understood to be ‘clearly established' in case law is not the same question as what is ‘objectively reasonable' for purposes of determining a Fourth Amendment violation.” Corrigan v. District of Columbia, 841 F.3d 1022, 1046 (D.C. Cir. 2016) (Brown, J., dissenting).
See also United States v. Guerrero, 472 F.3d 784, 787 (10th Cir. 2007) (concluding that an officer's observations can provide reasonable suspicion even if the conduct is “susceptible to innocent explanation” (quoting Arvizu, 534 U.S. at 273)); see also Terry v. Ohio, 392 U.S. 1, 2223 (1968) (ambiguous behavior, susceptible to an innocent interpretation, may give rise to a reasonable suspicion of criminal activity depending on the totality of the circumstances).
B. Was There Reasonable Suspicion that Plaintiffs Violated B.R.C. § 5-4-3?
Defendants also argue that Plaintiffs' admission in their response brief that they “were likely in violation of whatever private property policy . . .” demonstrates that Bliley had a reasonable suspicion the Plaintiffs were violating Boulder's ordinance prohibiting trespassing. Defendants assert that Bliley's belief that he observed Plaintiffs in violation of the median ordinance, rather than the trespassing ordinance, is “immaterial under applicable Fourth Amendment and qualified immunity analysis.” Reply at 4-5.
In arguing that Walnut Street was clearly marked as “private” by visible signs, Plaintiffs assert in their response brief: “Now, to be sure, both Plaintiffs were likely in violation of whatever private property policy may have existed relating to ‘loitering' - but that would only mean that they would have had to leave the respective properties upon being told to leave by the respective property owners/managers (and to which, never happened, and whereby this is obviously not a trespassing case we are dealing with today).” Resp. at 3-4. The Court finds that whether Plaintiffs admit to such violation is immaterial; a Boulder police officer observing two individuals “panhandling” on a street marked “private” would have reasonable, articulable suspicion that the individuals were committing or about to commit a violation of Boulder's trespassing ordinance.
Plaintiffs do not rebut Bliley's characterization of them as “panhandling” at the time he observed them.
Section 5-4-3(a) of the B.R.C provides in pertinent part that “[n]o person shall . . . [e]nter or remain upon land or premises other than a dwelling of another in defiance of a legal request or order by the owner or some other authorized person.” As established above, it is undisputed that a sign on Walnut Street indicates that the owner prohibits “trespassing, ” “solicitation, ” and “loitering” on the property. Thus, a Boulder police officer, presumed to know the Code he enforces, would reasonably suspect upon observing Plaintiffs panhandling on Walnut Street that Plaintiffs were violating B.R.C. § 5-4-3.
Granted, it is undisputed that Bliley not only told Plaintiffs on July 14, 2017 that he believed they were violating B.R.C. § 5-6-16, he also cited them for such violations. In addition, Defendants Lolotai and Carrick “covered” for Bliley by detaining Plaintiffs while Bliley ran a background check and prepared the citations; they also would have seen the “private street” signs and heard Plaintiffs' exhortations that they were not violating the median ordinance. However, “[a] stop is supported by reasonable suspicion if, as here, the facts known to the officer indicate that an ordinance is being violated even if the officer mistakenly believes that another ordinance is the one that is being violated.” United States v. Haskins, 430 Fed.Appx. 727, 729 (10th Cir. 2011) (citing United States v. Eckhart, 569 F.3d 1263, 1271 (10th Cir. 2009)). “The officer's actual motivations or subjective intentions and beliefs are irrelevant.” Id. at 728 (citing Whren v. United States, 517 U.S. 806, 813 (1996)). In Haskins, the criminal defendant sought to suppress evidence, arguing that an initial stop was not justified at its inception in violation of the Fourth Amendment. Id. A Wichita police officer stopped the defendant for an inoperable taillight prohibited by a city ordinance requiring taillights to be illuminated after dark. Id. at 729. The defendant argued that the stop was made in broad daylight and, thus, the officer had no reasonable suspicion that a violation of the ordinance had occurred or was occurring. Id. The court concluded that, because the inoperable taillight violated other sections of the city's code, the officer had an objectively reasonable suspicion that the defendant had committed a violation when he initiated the stop. Id. at 728-29 (“if the facts known to the officer support reasonable suspicion of a traffic offense, it does not matter that the officer was motivated by a belief that a different offense (even one for which there was not reasonable suspicion) had been committed.”).
In addition, in Eckhart, the Tenth Circuit held that an officer, who “observed a violation of Utah law before he made the stop” but was “incorrect about which provision of law had in fact been violated, ” had reasonable suspicion to stop the defendant. Eckhart, 569 F.3d at 1271. The officer “believed Utah law required license plates to be visible up to 100 feet at any time. He was mistaken-the 100-foot limitation is only applicable in daylight.” Id. The court concluded that, because what the officer observed was actually a violation of a different provision in the code, the officer reasonably suspected that a violation had occurred or was occurring. See id. (“That [the officer] was wrong about the particulars of the law is not fatal.”).
This Court concludes that, because the undisputed facts demonstrate that Plaintiffs, by panhandling on Walnut Street, were violating B.R.C.§ 5-4-3(a), Defendants had a reasonable, articulable suspicion that a violation was occurring or was about to occur. Therefore, the Court recommends that Judge Brimmer find Defendants did not violate Plaintiffs' Fourth Amendment rights against unreasonable investigative detentions, and grant Defendants' motion for summary judgment on this basis.
Because the Court has found no Fourth Amendment violations, it need not proceed to determine whether the law supporting Plaintiffs' alleged rights was clearly established.
CONCLUSION
Although Defendants failed to demonstrate they had reasonable suspicion that Plaintiffs were violating Boulder's “median” ordinance, the Court finds Defendants establish they had reasonable, articulable suspicion that Plaintiffs were violating Boulder's trespassing ordinance. Accordingly, the Court respectfully recommends that Judge Brimmer find Defendants are entitled to qualified immunity and grant Defendants' Motion for Summary Judgment [filed June 15, 2020; ECF 33].
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72. The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Duffield v.Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)).