Opinion
Civil Action 20-cv-01049-PAB-MEH
10-09-2020
WILLIAM MONTGOMERY, Plaintiff, v. STEPHEN HOLWEGER, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Michael E. Hegarty, United States Magistrate Judge.
Defendant Officer Stephen Holweger (“Defendant”) moves for summary judgment (ECF 28) on Plaintiff William Montgomery's (“Plaintiff”) Complaint (ECF 1). Plaintiff asserts two claims against Defendant pursuant to 42 U.S.C. § 1983 for alleged violations of his Fourth Amendment rights. Plaintiff contends Defendant improperly detained him as he attempted to leave a store with purchased, unbagged items. Defendant asks the Court to grant his motion for summary judgment (“Motion”) based on qualified immunity. The Motion is fully briefed, and Chief Judge Philip A. Brimmer has referred it to this Court for a recommendation. ECF 30. Based on the record herein and for the reasons that follow, the Court respectfully recommends granting the Motion.
BACKGROUND
The Court makes the following findings of fact viewed in the light most favorable to Plaintiff, who is the non-moving party in this matter. The Court also does not consider evidence submitted by either party which is not material to the Motion, properly objected to and/or admissible.
1. On or about April 8, 2018, Plaintiff entered a Walmart store. Exh. A.
2. Plaintiff began an audio recording on his cell phone at or near the time he entered the store. Id.
3. On the recording, Plaintiff can be heard interacting with a cashier. Id. at 5:34-6:24.
4. Plaintiff purchased a computer mouse at the electronics counter. He told the cashier that he refuses a bag, because he wants to “save a plastic tree.” Id. at 6:20-7:18; Exh. B.
5. Sometime after the purchase, Plaintiff “secreted” the receipt by folding it and putting it between his cell phone and cell phone case. Exh. B; Exh. C-2.
6. The recording demonstrates footsteps until Plaintiff interacts with another salesperson, buys juice, and again declines a bag. Id. at 7:18-9:54.
7. Instead of exiting as would normally occur, Plaintiff headed away from the registers into the store interior with his purchases. Exh. D, Walmart videos, POS134.8.2018.19:154.8.20.19: 32 at 0:26-1:19.
8. Plaintiff then articulated, for his audio recording, that he has his mouse and juice, and “both have been paid for.” Exh. A at 10:50-10:54.
9. A video recorded Plaintiff attempting to leave the store from an area of the store away from the registers, through a door marked “Enter, ” with the unbagged merchandise in his hands. Exh. D, Walmart videos, ENTRANCE4.8.201.19:154.8.20.19:32 at 2:17.
10. Standing near the doors, Defendant asked Plaintiff, “Hey sir, do you have your receipt?” Exh. A at 11:32.
11. Plaintiff responded, “I don't think I have to show you that.” Id. at 11:33-40.
12. Defendant stated that if Plaintiff has passed the point of sale he must have a receipt. Id. at 11:40-46.
13. Plaintiff asked if Defendant is detaining him. Id. at 11:46-11:55.
14. Defendant stepped in front of Plaintiff and told him that he could leave the store, “but let's see your receipt.” Id. at 11:55-59.
15. Defendant then stated that Plaintiff could leave the store but not with the unbagged merchandise, unless he produced a receipt. Id. at 11:49-12:22.
16. Defendant asked Plaintiff to leave his items on the floor, but Plaintiff did not comply. Id. at 12:09-12:13.
17. Defendant again explained to Plaintiff that he was free to leave but not with the unbagged merchandise. Id. at 12:22-15:40.
18. At some point, Defendant took Plaintiff's unbagged items. Id. at 12:22-12:50.
19. Plaintiff began yelling that Defendant stole his items. Id.
20. Defendant repeatedly asked to see Plaintiff's receipt. Id. at 12:10-13:28.
21. Defendant then instructed Plaintiff that he needed “to go.” Id. at 13:22.
22. Instead, Plaintiff returned into the store while being observed by Walmart security personnel, obtained similar items, and attempted to leave the store without paying for them. Id. at 12:22-17:45; Exh. B; Exh. E.
23. Upon attempting to leave, Defendant arrested Plaintiff. Exh. A at 17:46-18:57.
24. On-duty Aurora Police Department (“APD”) officers arrived. Id. at 15:40-1:43:20.
25. Officer Camerucci transported Plaintiff to jail. Exh. C-1; Exh. C-2.
26. While Plaintiff was at the jail being booked, Plaintiff made statements that he was “playing [officers] like a fiddle, ” and he wanted to see if “cops would fall for it, again.” Exh. C-2 at 31:00 37:00. Plaintiff also referenced that he has done this in Commerce City, Colorado. Id. at 37:0037:16.
27. Plaintiff announced he was going to do “the big reveal, ” and admitted to APD officers at the jail that he had a receipt for the first computer mouse hidden between his cell phone and cell phone case. Id. at 35:00-35:30.
28. APD officers verified the receipt with Walmart personnel and released Plaintiff, returning the original merchandise and providing a ride to his choice of bus stop. Id. at 36:20-1:10:31.
LEGAL STANDARDS
I. Summary Judgment
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). The 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 fact is material if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
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). “The moving party may carry its initial burden either by producing affirmative evidence negating an essential element of the nonmoving party's claim, or by showing that the nonmoving party does not have enough evidence to carry its burden of persuasion at trial.” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002). Only admissible evidence may be considered when ruling on a motion for summary judgment. World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985).
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). “[T]he content of summary judgment evidence must be generally admissible and . . . if that evidence is presented in the form of an affidavit, the Rules of Civil Procedure specifically require a certain type of admissibility, i.e., the evidence must be based on personal knowledge.” Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005).
II. Treatment of a Pro Se Plaintiff's Complaint
A pro se plaintiff's “pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). “Th[e] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf.” Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009) (quoting Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997)). The Tenth Circuit interpreted this rule to mean, if a 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.” Diversey v. Schmidly, 738 F.3d 1196, 1199 (10th Cir. 2013) (quoting Hall, 935 F.2d at 1110). 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.” Garrett, 425 F.3d at 840 (quoting Hall, 935 F.2d at 1110).
ANALYSIS
Plaintiff's Complaint asserts two claims for relief against Defendant: (1) violation of the Fourth Amendment for unreasonable seizure of his person, and (2) violation of the Fourth Amendment for unreasonable seizure of his items “absent separate lawful justification for doing so.” ECF 1 at 8-10. Seeking summary judgment, Defendant raises the defense of qualified immunity, arguing he had reasonable suspicion to stop Plaintiff, and that he did not violate clearly established law.
I. Qualified Immunity
Qualified immunity protects from litigation a public official whose possible violation of a plaintiff's civil rights was not clearly a violation at the time of the official's actions. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). It is an entitlement not to stand trial or face the other burdens of litigation. Ahmad v. Furlong, 435 F.3d 1196, 1198 (10th Cir. 2006) (internal quotations and citations omitted). The privilege is an immunity from suit rather than a mere defense to liability. Id. The defense of qualified immunity requires that “(1) a reasonable jury could find facts supporting a violation of a constitutional right, which (2) was clearly established at the time of the defendant's conduct.” Estate of Smart by Smart v. City of Wichita, 951 F.3d 1161, 1169 (10th Cir. 2020). The Supreme Court in Pearson v. Callahan emphasized that courts have 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.” 555 U.S. 223, 236 (2009); see also Christensen v. Park City Mun. Corp., 554 F.3d 1271, 1277 (10th Cir. 2009). Here, the Court will begin by analyzing whether the law was clearly established at the time of Defendant's conduct.
A. Fourth Amendment
When analyzing whether a defendant is entitled to qualified immunity from a Fourth Amendment claim, courts must inquire whether the defendant had arguable reasonable suspicion-i.e., whether a reasonable officer could have believed that reasonable suspicion existed-to support the challenged detention. See Cortez v. McCauley, 478 F.3d 1108, 1120, 1123 (10th Cir. 2007) (“. . . law enforcement officials who reasonably but mistakenly conclude that probable cause [or, reasonable suspicion for an investigative detention] is present are entitled to immunity.”); see also Stoedter v. Gates, 704 Fed.Appx. 748, 755 (10th Cir. 2017) (“Accordingly, the only remaining question is whether the contours of that right were sufficiently clear that every reasonable official would have understood that what he is doing violates that right. . . . [T]he appropriate inquiry is whether the defendants had ‘arguable reasonable suspicion'-i.e., whether a reasonable officer could have believed that reasonable suspicion existed to support [plaintiff]'s seizure.” (internal quotations and citations omitted)). In other words, “police 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.” U.S. v. Denson, 488 Fed.Appx. 314, 316 (10th Cir. 2012) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). For the reasons that follow, the Court agrees that Defendant had arguable reasonable suspicion to detain Plaintiff, because it was not clearly established at the time that an officer, who observes an individual exiting a store with unbagged merchandise and no visible receipt, does not have reasonable suspicion to conduct an investigative detention for shoplifting.
At the second prong of qualified immunity, it is Plaintiff's burden to show that the relevant Fourth Amendment right Defendant allegedly violated was clearly established at the time of the encounter. Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010). “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Casey v. City of Federal Heights, 509 F.3d 1278, 1283-84 (10th Cir. 2007) (quoting Saucier, 533 U.S. at 207). For the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must support the position. Doe v. Woodard, 912 F.3d 1278, 1289 (10th Cir.), cert. denied sub nom., I.B. v. Woodard, 139 S.Ct. 2616 (2019); Quinn v. Young, 780 F.3d 998, 1005 (10th Cir. 2015).
The Supreme Court has also emphasized that the clearly established law may not be defined at “a high level of generality.” City of Escondido v. Emmons, 139 S.Ct. 500, 503 (2019). The Court stressed that factual “[s]pecificity is especially important in the Fourth Amendment context ....” Id. These analogous situations allow “an officer to determine how the relevant legal doctrine . . . will apply to the factual situation the officer confronts.” Id. Therefore, Plaintiff must identify clearly established law that put Defendant on notice that his conduct violated Plaintiff's rights in the situation he confronted.
To provide clearly established law, Plaintiff cites to Walmart Stores, Inc. v. Odem, 929 S.W.2d 513 (Tex. App. 1996) in his Complaint as “a case factually identical to this one.” ECF 1 at ¶ 23. That case is neither a Supreme Court nor Tenth Circuit decision; therefore, it alone cannot demonstrate that the law was clearly established. Woodard, 912 F.3d at 1289. Regardless, the case is materially different. In Odem, a store greeter grabbed the plaintiff by the arm, reached into the plaintiff's purse, and retrieved a blue package thought to be unpaid merchandise. In this case, Defendant, a police officer, witnessed Plaintiff attempt to walk out of the store with unbagged items. There are no allegations of physical contact, save for Defendant taking Plaintiff's items after he repeatedly refused to produce a receipt.
In his response, Plaintiff argues “it would naturally be difficult (if not impossible) to find ‘clearly established case law' . . . because none would naturally exist.” Resp. at 9. In doing so, Plaintiff contends that only “more generalized principles have the capacity of being applied to a situation like this.” Id. Nevertheless, Plaintiff cites to Chelette v. Wal-Mart Stores, Inc., 535 So.2d 558 (La. Ct. App. 1988) for the proposition that established law dictates there is no reasonable suspicion when a customer does not attempt to conceal merchandise. Resp. at 10. This case, though, is not from the Supreme Court or the Tenth Circuit, and the Court finds there is “no clearly established weight of authority from other courts” to support the stated position. Woodard, 912 F.3d at 1289. Additionally, the Court will not define a clearly established law through “a high level of generality.” Emmons, 139 S.Ct. at 503. Accordingly, the Court finds Plaintiff has not provided citation to any case demonstrating that police officers lack reasonable suspicion to stop individuals leaving stores with unbagged items and no visible receipt.
As to Plaintiff's claim for seizure of his items, Plaintiff has also failed to demonstrate clearly established law. He cites to a Supreme Court concurring opinion in United States v. Place, for the proposition that “[w]hile Terry [v. Ohio, 392 U.S. 1 (1968)] may authorize seizures of personal effects incident to a lawful seizure of the person, nothing in the Terry line of cases authorizes the police to seize personal property . . . independent of the seizure of the person.” 462 U.S 696, 716 (1983) (Brennan, J., concurring). A concurring opinion, even from the Supreme Court, is not a sufficient basis to find clearly established law; yet, even if it was, the cited principle cuts against Plaintiff's contention. As explained above, the Court finds no clearly established law supporting that Defendant's stop of Plaintiff was a constitutional violation. Thus, the seizure of property does not rely on an independent justification from the detention of Plaintiff's person. Moreover, “[i]f, while conducting a legitimate Terry search[, ] . . . the officer should . . . discover contraband other than weapons, he clearly cannot be required to ignore the contraband.” Michigan v. Long, 463 U.S. 1032, 1050 (1983). Defendant stopped Plaintiff, in large part, based on the unbagged items. Plaintiff's refusal to produce a receipt prompted Defendant's confiscation of those items, until that time when Plaintiff would produce a receipt. Plaintiff has reference (and the Court finds) no case clearly establishing that such conduct constitutes a constitutional violation.
The Court is mindful of the Tenth Circuit's admonition that a plaintiff bears the burden of citing to the Court clearly established law. See Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010). The cases following this requirement typically involve plaintiffs who are represented by counsel. See, e.g., Gutierrez v. Cobos, 841 F.3d 895, 903 (10th Cir. 2016); Rojas v. Anderson, 727 F.3d 1000, 1005-06 (10th Cir. 2013); Smith v. McCord, 707 F.3d 1161, 1162 (10th Cir. 2013). However, the Tenth Circuit has reversed a trial court's dismissal of a pro se plaintiff's excessive force claim-where the trial court found the plaintiff had failed to identify a case demonstrating his right was clearly established-by itself pointing to a Supreme Court case sufficiently similar to the facts alleged and finding the plaintiff's right was clearly established. See Ali v. Duboise, 763 Fed.Appx. 645, 651-52 (10th Cir. 2019). Therefore, the Court has conducted an additional inquiry to determine whether the relevant law was clearly established as of the dates of these events, finding no authority concluding that an officer who observes an individual exiting a store with unbagged merchandise and no visible receipt, accompanied by a direct refusal to produce a receipt, does not have reasonable suspicion to conduct an investigative detention for possible shoplifting and seize the merchandise until a receipt is produced. Absent this clearly established law, Defendant is entitled to qualified immunity.
CONCLUSION
The Court respectfully RECOMMENDS Defendant's Motion [filed August 6, 2020; ECF 28] be GRANTED.
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)).
Entered and dated this 9th day of October, 2020, at Denver, Colorado.