Free Brief in Support of Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2328-RPM-OES GREG JOSEPH GONZALES, by and through his next friend, JUNE BRAVO Plaintiff, v. OFFICER BRETT C. TITUS, in his official and personal capacity, and CITY AND COUNTY OF DENVER Defendants. ______________________________________________________________________________ DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Defendant, OFFICER BRETT C. TITUS, by his attorneys, ERIC M. ZIPORIN and ELLIOT J. SCOTT of the law firm of SENTER GOLDFARB & RICE, L.L.C., and DAVID BRUNO of the law firm of BRUNO BRUNO & COLIN, P.C., and pursuant to Fed.R.Civ.P. 56, hereby submits his Reply Brief in Support of Motion for Summary Judgment (hereinafter "Reply") as follows: I. INTRODCUTION

Plaintiff attaches several exhibits to his Response to Motion for Summary Judgment (hereinafter "Plaintiff's Response") which are in violation of Fed.R.Civ.P. 56 and should not be considered by the Court. According to Fed.R.Civ.P. 56(e), documents appended to a motion for summary judgment must be sworn or certified, and must be admissible in evidence. Unsworn statements submitted in response to a motion for summary judgment do not meet the requirements of Fed.R.Civ.P. 56(e). See, Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 no. 17,

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90 S.Ct. 1598, 1608 n. 17, 26 L.Ed.2d 142 (1970). The following exhibits not only fail to meet this requirement, but are also hearsay or contain hearsay statements and should not be considered by the Court: Exhibit 4; Exhibit 6; Exhibit 7. Exhibit 5, in addition to no foundation being laid to establish its admissibility, is wholly irrelevant as it depicts Jeffrey Pacheco-Dominguez on a date nearly three years after the events that led to this litigation. In addition to being hearsay, Exhibits 6 and 7 are irrelevant as they will not assist the Court in determining the questions of law before it; if anything, the photographs go to damages. Finally, since Plaintiff has withdrawn his Sixth and Eighth Amendment claims pursuant to 42 U.S.C. § 1983, this brief will only address the issues still pending before the Court. II. MATERIAL FACTS WHICH REMAIN UNDISPUTED

Within Plaintiff's Response, Plaintiff does not include a section which either admits or denies Titus' "Statement of Undisputed Facts." Instead, Plaintiff includes a thirteen-paragraph section entitled "Factual Discussion," some of which appear to indirectly dispute some of the undisputed facts set forth by Titus. Despite the facts presented by Plaintiff within this section of his brief, the following material facts set forth within Titus' "Statement of Undisputed Facts" remain undisputed, and in and of themselves, warrant the dismissal of Plaintiff's claims for relief: 1, 2, 3, 4, 5, 6 (except Plaintiff appears to dispute that Titus could identify that the driver of the Neon matched the description of the menacing suspect), 7, 8, 9, 10, 11, 12, 13, 14, 18, 19, 20, 21, 22, 23, 24, 26, 27, 28, 29, 30, 31, and 32.

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III.

RESPONSE TO "FACTUAL DISCUSSION"

In the body of Plaintiff's Response are a number of factual assertions and citations to his attached Exhibits, many of which are patently misleading. Titus will address these

misrepresentations in this section as well. Titus will also admit or deny Plaintiff's alleged facts below: 1. Admit in part and deny in part. Titus admits that he received the dispatch report about the felony menacing, but denies that no other description was given apart from "Hispanic male, bald head, tattoos." As Plaintiff admits in a different sentence, the description also contained information about the location of the crime and suspects. 2. Admit in part and deny in part. Titus admits that the vehicle in which Plaintiff traveled ran the red light and fled at a high rate of speed, but Titus denies that he could not have made a positive identification of the menacing suspect, because Titus did identify the driver as matching the description given by the dispatcher. Plaintiff's citation to Titus' deposition is deceptive because the referenced text indicates only that it was dark that night and does not address the issue of identification. The relevant portion of Titus' deposition can be found at Exhibit A, p. 43, lines 1-4. 3. Titus denies that he could only find one similarity in the description of the menacing suspect and the driver of the Neon. Here, Plaintiff seems to have made a computation error, as "male," "Hispanic," and "bald head" represent three similarities; the fourth is that the menacing suspect and the driver of the Neon were in the same neighborhood. The Plaintiff's citation to Titus' deposition is deceptive because Plaintiff cites to a question asked by Plaintiff's counsel, not to Titus' testimony.

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4.

Deny. Titus denies that he had no basis to believe the Neon "was suspect," as this is purely the opinion of Plaintiff's counsel. Plaintiff has admitted, supra, that the Neon was speeding and running a red light. The Plaintiff's citation to Titus' deposition is deceptive, as it supports only the fact that there was no description of the menacing suspect's vehicle, not the opinion of Plaintiff's counsel, as expressed in Paragraph 4.

5.

Titus denies Paragraph 5, which is merely an opinion of Plaintiff's counsel, not a factual allegation.

6.

Denied. Plaintiff's only citation to support this allegation is a hearsay document, Exhibit 4, which the Court should not consider.

7. 8. 9. 10.

Titus admits that he never saw Plaintiff or the other suspects carrying a weapon. Titus denies Paragraph 8, which is merely an opinion of Plaintiff's counsel. Titus admits that the occupants of the Neon exited the car before Titus arrived. Titus admits that Plaintiff jogged away from the car and was bitten, but denies that this occurred on the side of the street. Plaintiff's citation is deceptive, as the

referenced material does not address the factual allegation--and, in fact, there is no line 29 on pg. 107 of Plaintiff's Exhibit 2. 11. Though Plaintiff never identifies the person referenced by the pronoun "he" in Paragraph 11, Titus assumes that this refers to Plaintiff. As such, Titus denies that Plaintiff was at the side of the tree near the front of the house, as Plaintiff was in fact behind the tree. Plaintiff's citation is deceptive, as the referenced material only indicates that Plaintiff was in front of the house and does not mention the tree. Titus denies Plaintiff's approximation of the distance between Plaintiff and Titus.

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12.

Denied. In fact, Plaintiff admitted in his deposition that heard Titus say something similar to "Stop or I will release the dog." [See, section III of Defendants'

Memorandum Brief in Support of Summary Judgment (hereinafter "Titus' Brief") at ¶ 16]. 13. Denied. Plaintiff admitted in his deposition that he knew Titus was telling him to surrender, but he ignored the commands to stop running and show his hands and instead jogged away from Titus. [See, section III of Titus' Brief at ¶ 17]. Titus will now review some of the factual assertions in the body of Plaintiff's Response: 14. In Section III(A)(I), Plaintiff asserts that Titus only intended to contact the driver of the Neon. The citation to the record does not support this proposition: it shows Titus' intent to stop the driver, but not at the exclusion of other occupants of the vehicle. Titus therefore denies this alleged fact. 15. In Section III(A)(I), Plaintiff asserts that Titus did not identify any of the other passengers as matching the menacing description. The citation to the record is

deceptive because in it Titus states only that he did not recall if he saw the hairstyles of the other occupants of the vehicles when the Neon passed him at Sheridan and Evans. Titus therefore denies this alleged fact. 16. In Section III(A)(I), Plaintiff puts a phrase in quotes and attributes it to Titus ("shaved, clean heads"), then suggests that Titus corrected himself. Plaintiff's quoted text comes from Plaintiff's counsel's question, not anything to which Titus testified. Titus therefore denies this alleged fact.

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17.

In Section III(A)(VII)(B), Plaintiff asserts that Titus gave "perhaps two commands to stop." The citation for this proposition is one line from an unrelated question by Plaintiff's counsel. Titus' actual testimony is that he gave "far more than three warnings" about the dog and commands to stop. [See, Exhibit 1, p. 117, lines 10 ­ 20]. Titus therefore denies this alleged fact.

18.

In Section III(A)(VII)(B), Plaintiff asserts that "the suspects stopped at that point." Plaintiff's two citations for that phrase do not indicate anything of the sort. In the first citation, Titus actually says, "[the suspects] are standing in that corner, kind of meandering..." [Exhibit 1, p. 64, lines 8-10]. The second citation for Plaintiff's assertion is a question by Plaintiff's counsel that reads, "Towards you?" That

question is in response to Titus' statement that "At that point [the suspects] all decide to run towards me." [Exhibit 1, p. 68, lines 11-12]. As these alleged facts are unsupported by the record, Titus denies same. IV. 1. STATEMENT OF ADDITIONAL UNDISPUTED FACTS

The purple Neon ran a red light at the intersection of Sheridan Boulevard and Evans Avenue. [See, Plaintiff's Response at Section II, Paragraph 2].1

2.

Titus believed that once Plaintiff took a position of cover, in the dark, on Titus' exposed flank, Plaintiff posed not only a threat, but the greatest threat of any of the occupants of the Neon. [See, Exhibit A at p. 107, lines 7 ­ 18].

3.

While the police dog engaged Plaintiff, Titus maintained verbal control over the animal at all times. [See, Exhibit A at p. 141, lines 10-24].

Plaintiff admits that the Neon ran a red light in Plaintiff's Response [see, Plaintiff's Response at section II, ¶ 2], yet also cites to testimony of Pacheco-Dominguez that the light was not red.

1

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V.

ARGUMENT

As a preliminary matter, Titus must address the legal basis for summary judgment, as Plaintiff's response seems to have confused the issue. In discussing the standard for summary judgment, Plaintiff attempts to find authority in the Colorado Supreme Court and the Colorado Rules of Civil Procedure. These state law sources are not binding on this Federal District Court. The Court should look to Titus' recital of the Federal Rules of Civil Procedure and federal case law, found in Titus' Brief. This Reply will succinctly respond to Plaintiff's constitutional arguments and thereby further demonstrate that Titus is entitled to qualified immunity. Since Titus pled qualified immunity in his Motion for Summary Judgment, the burden shifted to Plaintiff to demonstrate that (1) the defendant's conduct violated the law, and (2) the relevant law was clearly established when the alleged violation occurred.2 Migneau v. Peck, 158 F.3d 1131, 1139 (10th Cir. 1998). Plaintiff has not met that burden because he failed to allege either a true violation of Constitutional law, or that such a purported violation was of clearly established law. The sections below will respond to each allegation of a constitutional violation with the qualified immunity standard in mind.

2

For a full discussion of the standard for qualified immunity, see Titus' Brief at pp. 10-12.

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A. TITUS IS ENTITLED TO QUALIFIED IMMUNITY, AS PLAINTIFF CANNOT ESTABLISH A CONSTITUTIONAL VIOLATION. 1. Titus had probable cause to stop the driver of the purple Neon.

The lynchpin of Plaintiff's Response is the contention that there could be no reasonable suspicion for stopping the purple Neon, in which Plaintiff was a passenger. Yet the record is replete with uncontested facts that establish that Titus had more than even reasonable suspicion--he had probable cause to stop Plaintiff's vehicle. The Neon ran a red light. [See, Section IV of this Reply at ¶ 1]. The Neon then extinguished its headlights at night in an attempt to evade Titus. [See, Section III of Titus' Brief at ¶ 8]. The Neon sped and drove recklessly through a residential neighborhood. [See, Section III of Titus' Brief at ¶ 10]. Federal case law is clear that a police officer may stop a vehicle when the officer has "probable cause to believe that a traffic violation has occurred." Whren v. United States, 517 U.S. 806, 809-10 (1996). Plaintiff does not contest--indeed, his "Factual Discussion" appears to admit--that the driver of the Neon committed numerous violation of traffic laws, including speeding and running a red light. [Plaintiff's Response, Section II, Paragraph 2]. Because Titus observed these violations of traffic laws, he had probable cause to stop the purple Neon in which Plaintiff was a passenger. Though Titus had probable cause that a traffic violation had occurred, he also had reasonable suspicion to believe that the occupants of the purple Neon were the suspects in the felony menacing. As discussed above, the driver of the Neon matched four key descriptive elements included in the description from the menacing dispatch. The Neon's obvious flight

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from a marked police car only added to the Titus' reasonable suspicion that the driver and occupants of the vehicle had been involved in the felony menacing.3 Therefore, on this issue, Plaintiff cannot mount a qualified immunity argument, as Titus had both reasonable suspicion and probable cause when he decided to stop the Neon. 2. Because Plaintiff fled a legitimate traffic stop, Titus had reasonable suspicion to detain him. Plaintiff's Response is insistent that even if Titus had cause to stop the Neon, Titus could not have had constitutional justification to detain Plaintiff. Plaintiff's citations to the Colorado Supreme Court notwithstanding, the federal law is that Titus had reasonable suspicion to detain Plaintiff because Plaintiff fled the scene of a valid police stop. Titus had reasonable suspicion that the driver of the purple Neon was a suspect in a felony menacing. This meant that Titus reasonably assumed that the gun used in the menacing was somewhere inside the car, possibly with one of the passengers, i.e., possibly with Plaintiff. The Supreme Court and several Circuit courts, including the Tenth, have ruled that when an officer stops a vehicle, the objective danger of traffic stops gives the officer authority to control the movements of the passengers in the vehicle. Maryland v. Wilson, 519 U.S. 408 (1997) (holding that officer may order any passengers out of the car); U.S. v. Holt, 264 F.3d 1215, 1223 (10th Cir. 2001) (holding that officers may order a passenger to remain in the vehicle, or exit the vehicle and keep hands raised during the stop); See also, U.S. v. Moore, 375 F.3d 580, 583 (7th Cir. 2004) (holding that the passenger in a lawfully stopped vehicle becomes "subject to the officers' custody and control until their safety can be assured"); Bonner, 363 F.3d 213, 216 (3rd

For a full discussion of a suspect's flight as a suspicious circumstance, see the case law cited below in subsection B.

3

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Cir. 2004) (holding that "it is well settled that a police officer executing [a valid vehicle] stop may exercise reasonable superintendence over the car and its passengers"). The Tenth Circuit recognized that control of the passengers in a stopped vehicle is essential to officer safety. See, Holt, 264 F.3d at 1222-24. The Holt Court observed that thousands of police officers are assaulted during routine traffic stops. On every routine vehicle stop, an officer "never knows in advance which motorists" are prepared to assault or kill a policeman--and that uncertainty extends to passengers. Id. at 1223. In Holt, the Tenth Circuit described the real dangers apparent in even the ordinary police stop. Yet when Titus stopped the purple Neon, his concern for his own safety was even greater than ordinary because of his reasonable suspicion that the driver had just committed a gun crime. Thus, as in many other Terry cases, the "individual-privacy-interests side of the Fourth Amendment balancing is weaker" and gives way to the state's interest in officer safety. Id. at 1222 (citing Pennsylvania v. Mimms, 436 U.S. 105, 110 (1977)). Furthermore, Plaintiff fled from a valid police stop, increasing the reasonable suspicion that fell on Plaintiff individually. The United States Supreme Court has determined that flight can be a factor in the formation of reasonable suspicion. Illinois v. Wardlow, 528 U.S. 119 (2000). The Court outlined other factors that can put a suspect's flight in a sufficiently

suspicious context to qualify for reasonable suspicion, including the time day, the number of people in the area, whether the officer was in uniform, the direction of flight, and other aspects of the suspects behavior. Id. at 129-130. In essence, the Court ruled that flight must be judged in the context of the "circumstances in which it occurs." Wardlow, 528 U.S. at 135. The context in the instant case also goes undisputed by Plaintiff: Plaintiff's flight occurred in the midst of a

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police chase, at night, when the officer was uniformed and in a marked car, with multiple occupants of the car joining the flight. These factors clearly amount to reasonable suspicion sufficient to detain Plaintiff individually. The Tenth Circuit and other circuits have made the explicit finding that a passenger's flight from a valid police stop of a vehicle is sufficient to give an officer reasonable suspicion. U.S. v. Trimble, 986 F.2d 394, 397-98 (10th Cir. 1993) ("The district court observed that when [the passenger] exited the [vehicle] and proceeded to walk away, he was leaving the scene of a police stop. The court reasoned, and we agree, that Officer Ford was within his authority to stop [the passenger] for identification-questioning, as in Terry"). U.S. v. Bonner, 363 at 216 (ruling that "flight from a non-consensual, legitimate traffic stop...gives rise to reasonable suspicion"). In the context of the instant case, Titus observed the flight of Plaintiff and the other passengers of the vehicle that he had validly stopped. Plaintiff and the other suspects ran into the cover of darkness, abandoning their vehicle in the middle of a public street. The above cited case law, like the officer's common sense, yields reasonable suspicion to detain every person who fled the car, including Plaintiff. That independent reasonable suspicion to stop Plaintiff was in addition to the fact that blocks away an individual, matching the description of the driver of the Neon, had threatened someone with a gun. Because he had reasonable suspicion to stop and question Plaintiff, Titus gave lawful commands for the occupants of the Neon to surrender immediately. 3. Because Plaintiff failed to obey lawful police commands, Titus had probable cause to arrest him. It is an uncontested fact Plaintiff did not heed the lawful commands of Titus, and instead remained hidden in the shadows of a nearby tree. [See, Section III of Titus' Brief at ¶¶ 17 and

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21]. Disobeying a lawful command of a police officer is a crime, for which Titus had probable cause to arrest Plaintiff. Titus rightfully interpreted Plaintiff's refusal to surrender--his

continued hiding in a position of cover-- as an act of aggression. Titus was the only officer on the scene, at night, and found himself surrounded by non-compliant suspects whom he had probable cause to arrest. The officer certainly kept in mind the fact that a felony menacing had occurred only blocks away, by a person matching the description of the driver of the Neon. "An officer in today's reality has an objective, reasonable basis to fear for his or her life every time a motorist is stopped." Holt, 264 F.3d at 1223. That objective, reasonable fear was only And at that moment, Titus had

augmented by Titus' knowledge of the felony menacing.

probable cause to arrest Plaintiff with force sufficient to protect himself. To be sure, a private citizen not otherwise suspected of a crime is not required to heed the commands of the police to stop and answer questions. United States v. Davis, 94 F.3d 1465 (10th Cir. 1996). However, in Davis the passenger who walked away from an attempted Terry stop had just exited a vehicle for which the police did not have reasonable suspicion or probable cause. In the case before this Court, Titus had both reasonable suspicion and probable cause to stop the vehicle. Thus, Titus lawfully attempted to stop and question Plaintiff, and Plaintiff's refusal to heed Titus' commands gave Titus probable cause to arrest him. 4. Titus used constitutionally appropriate force to arrest Plaintiff. Titus reasserts the controlling Tenth Circuit case of Marquez v. City of Albuquerque, 399 F.3d 1216 (10th Cir. 2005) to respond to Plaintiff's excessive force claim. Plaintiff has not refuted the applicability of Marquez, nor Titus' analysis under Graham. As such, the full

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discussion of those issues in Titus' Brief need not be repeated. Yet there are a number of points that require Titus' response. Contrary to Plaintiff's suggestion, Titus released his police dog to effect an arrest, not a stop. Plaintiff does not dispute that the dog was released after Plaintiff refused to comply with Titus' commands. That refusal to respond to lawful commands gave Titus probable cause to arrest Plaintiff, and given that Plaintiff was hiding in the dark and other suspects were surrounding Titus, the use of the police dog was an obvious and reasonable method of arrest. Cf, Marquez, 399 F.3d at 1221; Robbinette v. Barnes, 854 F.2d 909, 913-14 (6th Cir. 1988). Plaintiff wrongly suggests that he did not pose a danger to Titus. It is essential to recall that the Court must evaluate the reasonableness of Titus' conduct "from the perspective of a reasonable officer on the scene," taking into account the necessity of making split-second decisions under the stress of a dangerous situation. Graham v. Conner, 490 U.S. 386, 396 (1989). The Tenth Circuit in Holt, supra, maintained that a police officer is in real danger every time he stops a vehicle. Yet Plaintiff posed a much more specific threat. Titus made an objectively reasonable determination that a gun was in the purple Neon, and that its driver had just wielded it in a felony menacing. Though any of the passengers could have been armed, Plaintiff posed the greatest danger of all of the Neon's occupants, as Plaintiff fled to a position of cover on Titus' exposed flank. [See, Section IV of this Reply at ¶ 2]. Therefore, based on Titus' reasonable judgment, Plaintiff not only posed a specific danger that required the use of force, he posed the greatest, most immediate threat of any of the occupants of the Neon. Additionally, Plaintiff conflates the physical and verbal control that Titus maintained over his police dog by alleging that Titus did not have any control over the dog while it engaged

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Plaintiff. Though it is true that Titus did not have a leash on the dog while it engaged Plaintiff-- and thus did not have physical control--he did have verbal control over the dog. [See, Section IV of this Reply at ¶ 3]. By its very nature, the use of a police dog requires that a police officer release the animal from physical control so that it can apprehend a non-compliant suspect who is hiding or fleeing outside of the sight of the officer. Cf, Gutierrez v. Hackett, 131 Fed. Appx. 621 (10th Cir. 2003) (upholding a jury's decision of no excessive force where police dog was used to apprehend a suspect hiding inside of a car); Matthews v. Jones, 35 F.3d 1046 (6th Cir. 1994) (upholding summary judgment where police dog was used to apprehend a suspect hiding in the woods at night); Kuha v. City of Minnetonka, 365 F.3d 590 (8th Cir. 2003) (ruling that defendant police officer was entitled to qualified immunity where police dog was released to apprehend plaintiff, who was hiding in a swamp); Mendoza v. Block, 27 F.3d 1357 (9th Cir. 1994) (upholding qualified immunity for a police officer who released a K9 to apprehend plaintiff who was hiding on private property). Though outside of Titus' physical control, Oscar responded correctly to Titus' verbal command to apprehend Plaintiff. Plaintiff also mischaracterizes the facts from his own deposition by alleging that Titus dragged the dog "by the collar, which in turn held [Plaintiff] in his teeth." [Plaintiff's Response, Section III(A)(VII)(B)]. The cited page of Plaintiff's deposition reveals that Titus "yanked [the dog] off [Plaintiff]." [Exhibit 2, at p. 121, lines 15-16]. In his deposition Plaintiff says that Titus "yanked me and the dog at the same time." [Exhibit 2, at p. 120, line 6]. The most accurate way to characterize Titus' actions is to say that he did two things "at the same time": he yanked the dog and he yanked Plaintiff, i.e., he was not dragging only the dog, which in turn

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drug Plaintiff; rather, Titus pulled the dog and Plaintiff apart (it is essential to recall that Plaintiff was fighting the dog). Plaintiff cites Circuit court law that a police officer's failure to give a warning about the release of a dog can be excessive force, but Plaintiff fails to allege that Titus failed to give verbal warnings. It is undisputed that Titus gave verbal warnings about the release of the police dog. [See, Section III of Titus' Brief at ¶¶ 14, 16, and 19]. Thus, Plaintiff's reliance on this case law concerning warnings supports Titus' position that his use of the dog did not constitute excessive force. It is necessary to dispel Plaintiff's incorrect assumption that the reasonableness analysis under the Fourth Amendment belongs in the purview of the jury. Decades-old Ninth Circuit cases notwithstanding, the Tenth Circuit has ruled that the question of reasonableness in an excessive force case is a matter of law to be determined by the court. Medina v. Cram, 252 F.3d 1124 (10th Cir. 2001). In Medina, as in the many other cases in which the Tenth Circuit has upheld or ordered findings of summary judgment for the defendant in an excessive force case, when the material facts are not in dispute--as is the case here--the reasonableness of an officer's use of force is a question of law for the court. As is clear from Plaintiff's Response, the material facts at issue are not in dispute. All that remains is a legal question that properly resides with court. Titus has demonstrated that the law of the Supreme Court and Tenth Circuit compel summary judgment for Titus.

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B. TITUS IS ENTITLED TO QUALIFIED IMMUNITY BECAUSE PLAINTIFF CANNOT SHOW A VIOLATION OF CLEARLY ESTABLISHED LAW. Though it recites the rudiments of the qualified immunity inquiry, Plaintiff's Response does not engage the question in relationship to each of the alleged constitutional violations. The two step analysis requires to court to address whether a constitutional violation occurred, and whether Tenth Circuit or Supreme Court case law had clearly established the constitutional right allegedly violated. Plaintiff does address the first prong of the inquiry in his Response, but he utterly and completely fails to make arguments on the second issue. It is not enough to cite a case for the general proposition that a right exists. For example, the Supreme Court has said that merely reciting the standard for reasonableness under the Fourth Amendment "is not enough." Saucier v. Katz, 533 U.S. 194, 202 (2001). The Plaintiff must show "that the right the official is alleged to have violated must have been `clearly established' in a more particularized, and hence more relevant, sense." Saucier, 533 U.S. at 202. The arguments made in Titus' Brief and this Reply provide a clear answer to the first prong of the qualified immunity analysis: Titus did not violate the law in stopping the vehicle or arresting Plaintiff. Yet even if the Court were to find for Plaintiff on any of the constitutional allegations, Plaintiff's arguments could not rise to the threshold of the "clearly established" requirement of the qualified immunity analysis. Titus' Brief provides uncontested argument on the lack of clearly established law in K9 excessive force cases. The case law on the other constitutional issues, namely the propriety of the Terry stop, supports Titus' actions so thoroughly that if this Court were to find a constitutional violation, the law could not be said to be clearly established. The heart of the qualified immunity inquiry concerns notice to public

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officials that contested conduct is illegal; the above cited case law on reasonable stops could give Titus no indication that his conduct violated the Constitution--indeed, the case law does exactly the opposite. Additionally, in support of the proposition that the reasonableness and qualified immunity inquiries overlap (and therefore qualified immunity is of supposedly less value in a Fourth Amendment context), Plaintiff relies on an overruled proposition in Quezada v. County of Bernalillo, 944 F.2d 710 (10th Cir. 1991). The Supreme Court in Saucier specifically rejected this argument, ruling not only that the lines of analysis used to evaluate a Fourth Amendment claim and a qualified immunity question were separate, but also that "qualified immunity applied in the Fourth Amendment context just as it would for any other claim of official misconduct." Saucier, 533 U.S. at 203. Because Plaintiff has failed to fully engage the argument of qualified immunity, and furthermore, because Titus has established that he would prevail on both steps of the analysis, Titus is entitled to qualified immunity. C. PLAINTIFF'S UNLAWFUL SEIZURE CLAIMS ARE BARRED BY HECK V. HUMPHREY. Every circuit court that has addressed the issue has concluded that a diversion-type program that avoids a guilty plea and conviction still bars a § 1983 claim under Heck v. Humphrey, 512 U.S. 477 (1994). See, Gilles v. Davis, 427 F.3d 197, 211-212 (3rd Cir. 2005); Taylor v. Gregg, 36 F.3d 453, 455-56 (5th Cir. 1994); Roesch v. Otarola, 980 F.2d 850, 853 (2nd Cir. 1992); see also, Uboh v. Reno, 141 F.3d 1000, 1004-05 (11th Cir. 1998) (holding that unlike diversion programs, actual dismissal without intent to prosecute in the future can constitute favorable termination). Central to all of these holdings is the conclusion that the strict

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probationary period required in diversion programs a) comes solely at the discretion of the prosecutor and b) cannot be construed as an outcome in favor of a criminal defendant. Probation generally requires strict limits on personal freedom and the payment of certain fees and costs that are "not consistent with innocence"; and perhaps more importantly, failure to abide by the strict conditions of the diversion agreement may result in the immediate imposition of a criminal sentence. See, Gilles, 427 F.3d at 211; Cf, Restatement (Second) of Torts § 660 cmt. a

("Proceedings are `terminated in favor of the accused' only when their final disposition is such as to indicate the innocence of the accused"). Furthermore, as the Second Circuit noted, allowing a § 1983 claim after the plaintiff has taken advantage of a diversion program would undermine the intent of the program "because the savings in resources from dismissing the criminal proceeding would be consumed in resolving the constitutional claims." Roesch, 980 F.2d at 853. Plaintiff has taken advantage of Colorado's pretrial diversion program, an act which is inconsistent with innocence and which bars a § 1983 claim. The opportunity for Plaintiff to participate in probationary diversion came at the sole discretion of the prosecuting authority. See, COLO. REV. STAT. 19-2-704 (2005). To participate in the program, Plaintiff had to, among other things "admit [his] guilt and/or involvement in the offense." See, Juvenile Diversion Eligibility for City and County of Denver.4 It is quite clear then that Plaintiff's participation in the program is entirely inconsistent with Heck's requirement that Plaintiff not "negate an element of the offense" to which he has already admitted guilt. As such, Plaintiff's Fourth Amendment claims regarding an unlawful seizure should be barred.

4

Found at http://www.denverda.org/html_website/denver_da/juvenile_diversion_info.html

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VI. CONCLUSION For the reasons set forth herein and in Titus' Brief, Titus respectfully requests that the Court dismiss all remaining § 1983 claims against him as a matter of law.

Respectfully submitted,

By: s/ Eric M. Ziporin Eric M. Ziporin, Esq.

s/ Elliot J. Scott Elliot J. Scott, Esq. SENTER GOLDFARB & RICE, L.L.C. Attorneys for Defendant Titus 1700 Broadway, Suite 1700 Denver CO 80290 Telephone: 303-320-0509 Facsimile: 303-320-0210 -andDavid Bruno, Esq. BRUNO, BRUNO & COLIN, P.C. Attorney for Defendant Titus 1560 Broadway, Ste. 1099 Denver, CO 80202-5143 Telephone: 303-831-1099

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 20th day of December, 2005, I electronically filed a true and correct copy of the above and foregoing DEFENDANT'S REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Brian DeBauche, Esq. [email protected] Thomas Bigler, Esq. [email protected]

s/ Barbara Ortell E-mail: [email protected] Secretary for Attorney Eric M. Ziporin

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00206017.DOC