Free Brief in Opposition to Motion - District Court of Colorado - Colorado

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UNITED STATES DISTRICT COURT DISTRICT OF COLORADO Civil Action No. 03 CV 2328 (RPM) GREG JOSEPH GONZALES, by and through his next friend, JUNE BRAVO Plaintiffs, v.

OFFICER BRETT C. TITUS, in his official and personal capacity, and CITY AND COUNTY OF DENVER, Defendants.

PLAINTIFF'S RESPONSE TO CITY'S MOTION FOR SUMMARY JUDGMENT Comes now the Plaintiff, by and through counsel, and requests this Honorable Court to deny the Motion for Summary Judgment filed by Defendant City of Denver, and in support thereof states: I. Preliminary Issues 1. "Summary judgment is a drastic remedy and is never warranted except on a clear showing that there exists no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." C.R.C.P. 56(c); Churchey v. Adolph Coors Co., 759 P.2d 1336, 1339-40 (Colo. 1988). The court must liberally construe Plaintiff's complaint, presume all of his well-pleaded factual allegations as true, and view those allegations in a light most favorable to the non-moving party. Hall v. Bellmon, 935 F.2d 1106, 1109-10 (10th Cir. 1991). 2. In determining the propriety of summary judgment, the nonmoving party is entitled to all favorable inferences that may reasonably be drawn from the undisputed facts, and all doubts as

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to whether a friable issue of fact exists must be resolved against the moving party. E.g., Peterson v. Halted, 829 P.2d 373, 376 (Colo. 1992); "Summary judgment is appropriate when there is no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law." Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir. 1991). 3. A disputed fact is "material" if it might affect the outcome of the suit under the governing law, and the dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must construe the factual record and reasonable inferences therefrom in the light most favorable to the nonmovant. Gullickson v. Southwest Airlines Pilots' Assoc., 87 F.3d 1176, 1183 (10th Cir. 1996). 4. "Traditional "findings of fact" are inappropriate in a summary judgment order, because if summary judgment is proper, no findings of fact need be made and the case can be resolved as a matter of law. We read Anderson to mean only that it may be helpful when the district court summarizes undisputed facts." Id. See, Regalado v. City of Commerce City, 20 F.3d 1104, 1108 n.1 (10th Cir. 1994) (findings of fact are not required, but the reasons for granting summary judgment should be stated in the record. Allen v. Muskogee, 119 F.3d 837 (10th Cir. 07/17/1997). 5. Plaintiff in the interest of judicial economy incorporates the response filed to Defendant Titus' motion for summary judgment, and the extensive exhibits attached thereto, including: One. Deposition of Officer Brett Titus, pp. 41 to 149. Two. Deposition of Greg Gonzales, pp. 108 to 188. Three. Deposition of Jeffrey Pacheco-Dominguez, pp. 42 to 47. Four. Citation to Greg Gonzales by Brett Titus, with identification information.

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Five. Booking photos of Amparan, Pacheco, and Santistevan. Six. Photos of injuries.

Seven. Photo of Greg Gonzales, 8/27/2001. To this list is now added exhibits eight through twelve. Eight: Deposition of Sgt. Evan Hvizdak. Nine: Deposition of Roger Willard. Ten: Photograph of front, 2101 S. Harlan St.

Eleven:Satellite image of 1600 S. Zenobia to Sheridan and West Evans Avenue. Twelve:Denver Police K9 Unit Policy Manual Rev. 7/2001 II. Factual Discussion 1. Officer Titus received a dispatch report of a felony menacing involving a weapon, at a location of 1600 South Zenobia Street. Exh. One, 99:19-21. The reported suspect was a "Hispanic male, bald head, with tattoos." Exh. One, 41:12-13. No other description was provided, including age, complexion, facial hair, or color of clothing. 2. When Titus first noticed the purple Neon running the red light, he could not have made a positive identification of the driver as the felony menacing suspect because it was dark. Exh. One, 47:5-6) and the car was traveling at a "pretty decent high rate of speed." Exh. One, 42:2425. 3. In fact, Titus could only indicate one similarity from the description of the felony menacing suspect to the driver of the Neon; that they were both Hispanic, with a bald head. Exh. One,, 51:1-2. 4. Titus received no description of a suspect car involved in the felony menacing and therefore had no basis to believe that the purple Neon was suspect. Exh. One, 41:21-22.

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5. Titus's only valid basis for stopping the Neon was to investigate the traffic violation; committed by the driver only. 6. Gonzalez did not match the description of the felony menacing suspect. Exh. Four. 7. Titus never witnessed Gonzalez or any of the other occupants of the purple Neon carrying a weapon. Exh. One, 96:18 ­ 20; 47:22 ­ 25. 8. Titus did not have reason to believe that the passengers of the car had committed any crime. 9. All occupants of the car exited before Titus arrived and exited his own vehicle. Exh. One, 64:9 ­ 14. 10. Upon exiting the vehicle, Gonzales did not walk, but jogged, to the side of the street where the dog bit him. Exh. Two, 106:21-107:29. 11. He stopped at the side of the tree, near the front of the house. Exh. Two 109:9 ­ 10. He was ten feet away from the officer arresting Jeffrey Pacheco-Dominguez. Exh. Two 108:14 ­ 15. 12. Gonzales never heard the officer say anything about a dog. Exh. Two 109:1-3. 13. Gonzales did not hear the officer clearly, and is not sure what the officer said. Exhibit Two, 107:9-12. III. ARGUMENT A. Defendant Titus is not entitled to Qualified Immunity Once the defendant pleads qualified immunity, the burden shifts to the plaintiff to demonstrate (1) the defendant's conduct violated the law, and (2) the relevant law was clearly established when the alleged violation occurred. Clanton v. Cooper, 129 F.3d 1147, 1153 (10th Cir. 1997). "If the plaintiff fails to carry either part of his two-part burden, the defendant is entitled to qualified immunity." Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995). To show a right is clearly established, Plaintiff must cite to Supreme

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Court or Tenth Circuit decisions on point, or to weight of authority from other courts defining the contours of the right. Foote v. Spiegel, 118 F.3d 1416, 1424 (10th Cir. 1997). "The contours of the right [the official is alleged to have violated] must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987.) This circuit indicates that "the touchstone of our inquiry is whether the "'officers [were] on notice [that] their conduct [was] unlawful.'" (cit. om.) Although the best indicia of "fair notice" is whether the law was clearly established at the time of the constitutional violation, Harlow makes clear that other factors may be relevant in determining the "objective reasonableness" of the state actor's conduct. 457 U. S. at 819." Roska v. Peterson, 328 F.3d 1230 (10th Cir. 2003). "Although earlier cases involving 'fundamentally similar' facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding." (cit. om.). "A requirement of a case directly on point would quickly transform the qualified immunity standard into an absolute immunity standard in the vast majority of cases." Yvonne L. v. N.M. Dep't of Human Serv., 959 F.2d 883, 892 (10th Cir. 1992)." Roska, supra. In considering the "reasonable state actor," we must keep in mind that qualified immunity precludes the imposition of liability for "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U. S. 335, 341 (1986) (emphasis added). Where "officers of reasonable competence could disagree on th[e] issue, immunity should be recognized." Id. at 341. At the same time, where the right is clearly established, a defendant should only "rarely" be able to succeed with a qualified immunity defense. V-1 Oil Co. v. Wyoming Department of Environmental Quality, 902 F.2d 1482, 1488 (10th Cir. 1990). "The circumstances must be such that the defendant was so 'prevented' from knowing that his actions were unconstitutional that he should not be

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imputed with knowledge of a clearly established right." Cannon v. City & County of Denver, 998 F.2d 867, 874 (10th Cir. 1993) at 874. (cit. and footnote om.). The objective legal reasonableness of the officer's actions is a legal question. Sharrar v. Felsing, 128 F.3d 810, 828 (3d Cir. 1997). In exceptional circumstances historical facts may be so intertwined with the law that a jury question is appropriate as to whether a reasonable person in the defendant's position would have known that his conduct violated that right. Walker v. Elbert, 75 F.3d 592, 598 (10th Cir. 1996) (qualified immunity issues may be sent to the jury under special circumstances); see also Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1251 (10th Cir. 2003) ("The objective legal reasonableness of the [defendant's] actions is a legal question[,] [b]ut where the historical facts material to that issue are in dispute there is an issue for the jury.") In Fisher v. City of Memphis, 234 F.3d 312 (6th Cir. 2000), plaintiff brought a § 1983 claim, alleging Fourth Amendment violations, after a police officer shot her while she was driving. "[T]he district court had ruled that the factual dispute as to the behavior of the car driven by [plaintiff] as it approached [Officer] Taylor[, who claimed the car was driven threateningly,] prevented the granting of summary judgment on the issue of qualified immunity." Id. at 317. The Sixth Circuit held: Where, as here, the legal question of qualified immunity turns upon which version of facts one accepts, the jury, not the judge, must determine liability. In this case, the district court charged the jury to consider whether Officer Taylor's use of deadly force had been objectively unreasonable; that is, to resolve the continuing factual dispute as to the car's behavior as it came towards Officer Taylor. There was no error in such instructions. I. Officer Titus did not have reasonable suspicion to believe that the driver, much less any passenger, was a suspect in the felony menacing investigation. The interesting question is what exactly the officer believed he was doing in following this vehicle. He indicated he kept his overhead lights and siren off, Exh. One, 100:13-23, and continued to follow the vehicle in an attempt to contact the driver only. Exh. One, 100:11-12; 101:1-4. His

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indication was that he did not believe he had enough to arrest any of those individuals until after they `disobeyed his orders'. Exh. One, 101:5-11. He thought he could arrest the driver on traffic offenses only. Exh. One, 101:12-102:5. Even when he began giving orders to those individuals other than the driver, they had not committed any offense in his presence. Exh. One, 102:9-18; 103:1-4. He nevertheless believed he could detain them as "other suspects". Exh. One, 103:14-17. Under these circumstances, no officer could have affirmatively identified the driver as Hispanic, with a shaved head, and tattoos. No other information was available to this officer to corroborate his hunch that this vehicle was involved in a felony menacing. The time of viewing was too brief; and the traffic violations of the driver alone were insufficient to identify him as a felony menacing suspect. Besides the initial description of the felony menacing suspect, Titus never discovered other facts that could corroborate his unsupported suspicion that the driver of the purple Neon was the menacing suspect. No other fact can be added to the initial description of this driver as a Hispanic male with a "shaved head". In fact, this officer's criteria for identifying the individual driver as Hispanic was that he had "darker skin" and "just looked Hispanic". He identified no other passenger in the vehicle as possessing a shaved head, or Hispanic features, or darker complexions. Exh. One, 110:14 ­ 111:1. He later corrected his description of all the suspects as possessing "shaved, clean heads", and indicated none of the four in the vehicle had bald heads. Exh. One, 148:13-25. He also indicated "They all had short hair." Exh. One, 148:8. When Jeffrey Pacheco-Dominguez was deposed he indicated his hair was kept fairly short, much today as it was in 2001, and was a `buzz cut', not shaved or bald. Exh. Three, 42:1-24). See, Exhibit Five-1, booking photo.

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Officer Titus also agreed it was fairly common to see Hispanic males driving around West Denver with short haircuts in August. Exh. One, 149:13-22. Nothing about his initial observations of the male driver of the purple Neon corroborated his feeling that he was the menacing suspect. Additionally, a simple map of Denver streets can demonstrate there is no likelihood that the suspect vehicle in the menacing case would be the same vehicle turning south bound on Sheridan Boulevard at West Evans Avenue. Attached Exhibit Eight is a satellite image, available as a free service from GoogleEarth (earth.google.com). The attached map, verifiable with any other city map, demonstrates that the block lengths referred to by this officer are in fact long city blocks. The distance and path to travel from 1600 S. Zenobia to West Evans Avenue involves "T" intersections with turns to main roads other than West Evans. The pathway from Zenobia to West Evans westbound involves at least four specific turns and over half a mile of travel to arrive at the location the officer indicates. Jeffrey Pacheco-Dominguez indicated in his deposition that he operated the purple Neon, and did not turn on a red light. The officer actually stopped at the corner on a green light and refused to drive forward, watching the four males in the purple Neon and waiting for the light to change. Exh. Three, 47:12-48:13. After the police vehicle turned to follow them, the driver of the purple Neon, Jeffrey Pacheco-Dominguez, drove his vehicle southbound on Sheridan and fled. Id. II. Officer Titus did not have reasonable suspicion, or probable cause, to detain Gonzales and therefore, the detention of Gonzales was unconstitutional. Titus did not have reasonable suspicion to detain Gonzales for investigation of either the felony menacing or the traffic infraction. Under narrowly defined circumstances, a police officer may make a limited intrusion into an individual's personal security on less than probable cause. People v. Savage, 698 P.2d 1330, 1443 (Colo. 1985). The police can stop and briefly detain a person

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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. Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed. 2d (1968). Titus "seized" Gonzales under the Fourth Amendment by pointing his gun in Gonzales's direction. A person has been "seized" when a reasonable person would have believed that he was not free to leave. United States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980). Although chasing a fleeing suspect alone does not constitute a seizure, the display of a weapon, especially combined with language used to compel submission of the fleeing suspect is a seizure. See California v. Hodari D., 409 U.S. 621, 626, 113 L. Ed. 2d. 690, 111 S. Ct. 1547 (1991). "Examples of circumstances that might indicate a seizure would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with officer's request might be compelled." Mendenhall, 446 U.S. 544.. This full and complete seizure however was unconstitutional because Titus cannot even state any specific, articulable facts that would lead a reasonable officer to believe that Gonzales was a suspect in his investigation of felony menacing, or was engaging in any other form of criminal activity. The subjective intention of an officer is "irrelevant to the existence of probable cause" for an arrest. Devenpeck v. Alford, 543 U.S. 146, 160 L. Ed. 2d 537, 125 S. Ct. 588, (2004). Similarly, the officer's subjective intent is not relevant to a determination that he has reasonable suspicion to conduct an investigatory stop. People v. Rodriguez, 945 P.2d 1351, 1360 (Colo. 1997); People v. Altman, 938 P.2d 142, 145 (Colo. 1997). What is relevant is the existence of specific and articulable facts and the rational inferences from those facts that create a reasonable suspicion of criminal activity. Rodriguez, 945 P.2d 1351, 1360 ;Altman, 938 P.2d at 147 .

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In Heilman, the Colorado Supreme Court held that an officer's command to "show your hands," directed at an occupant of a parked van, effected a seizure because the circumstances did not create a reasonable suspicion of criminal activity. People v. Heilman, No. 01SA360, slip op. at 5 (Colo. April 22, 2002). The court ruled that reasonable people would not feel free to disobey an order to "raise their hands to plain view" when directed at them by an armed police officer. Plainly, in the case at hand, the orders given and actions taken by the officer constituted a seizure. The holding of Heilman is consistent with the generally applicable rule that police orders, instead of requests for cooperation, usually effectuate a seizure of the person to whom the order is directed. People v. Jackson 39 P.3d 1174, 1179 (Colo. 2002)(identifying the demand/request distinction as an important factor in determining whether a police-citizen contact is a seizure); People v. Melton, 910 P.2d 672, 677, 25 Colo. Law. No. 4 181, 20 Brief Times Rptr. 170 (Colo. 1996) (no seizure where, inter alia, police "asked rather than demanded" defendant's name and address); Wayne R. LaFave, Search and Seizure § 9.3(a) at 100-08 (3d ed. 1996) (distinguishing between requests and orders, and indicating that the latter effectuate a seizure). This officer's supervisor, Sgt. Evan Hvizdak, admitted as much during his deposition when the question was asked of him in the following way: 32 14 In terms of effectuating the 15 apprehension of the plaintiff, did you feel that this 16 was an arrest situation or an investigatory stop? 17 A. Arrest. Exhibit 8:32-33. He reiterated the same thing when confronted with Titus' own answers during the deposition, a short time later.

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25 1 2 3 4 5 6 7 8 9 10 11 12

These are pages 101 to 104 of the 33 deposition that Mr. Titus gave. And if you follow, it's divided into four sections. Top right section is page 103. If you start with line 18, where I asked Mr. Titus the difference between an investigatory stop and an arrest, he indicated he understood what that was. And I asked him what he meant by detaining Mr. Gonzales with the dog, on line 6 of the next page, 104. It's right below that. He indicated by "detain," he meant investigatory stop. You've indicated that your understanding is that this was a full arrest? A. In my opinion.

In Jackson, the police stopped a car on reasonable suspicion that the driver committed a traffic infraction. 39 P.3d at 1177. The Supreme Court held that the police unconstitutionally seized a passenger in the car when the police temporarily confiscated the passenger's identification without reasonable suspicion. Id. at 1188-90. The court recognized that even if the police have sufficient reasonable suspicion to search the driver of a car, separate reasonable suspicion is required to perform an investigative stop of the passenger. Thus, Jackson recognized that a person's mere presence at the scene of a crime or search is not of itself sufficient to justify a search or seizure of that person. Jackson furthermore cited back to cases predating August 24, 2001 for this very basic proposition, and reviews with approval the Court of Appeals suppression of evidence seized from the juvenile in that case. People v. Jackson, 13 P.3d 838 (Colo. App. 2000). Greg Gonzales on the date of this offense was described in the police report by Officer Titus as a Hispanic male, 5' 4" with brown hair and brown eyes, and was born on July 6 of 1987. See, Exhibit Four. His hair on or about the date of the offense itself was short, but not even close to shaved or bald. See, Exhibit Seven.

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The description of the felony menacing suspect was a Hispanic male, with a shaved head and tattoos, not a fourteen year old boy. The distinctions should have been obvious that Gonzales did not match this description. Although Titus noted passengers in the purple Neon, Titus had no reason to believe that there were additional suspects involved in the felony menacing from his initial reports of that incident. No one from the vehicle matched the description of the suspect at all. See, Exhibits Five, booking photos 8/24/2001. At the time Officer Titus first encountered Gonzales in the cul de sac of Harlan Street, Titus had both his headlights as well as his ambient lighting pointed in the direction of the fleeing males, including Gonzales. He indicates he activated his overhead lights only as he entered the dead end cul de sac. Exh. One, 54:9 to 12). Officer Titus had ample opportunity to view Gonzales as he fled from the car, started to return to the car, and then "jogged away." Titus was sufficiently able to view Gonzales in order to describe Gonzales's specific movements. However, according to Titus, he nonetheless considered everyone to be a suspect. Exh. One, 103:10 ­ 17. This coincides exactly with the testimony of his own supervisor Evan Hvizdak. Sgt. Hvizdak testified thusly, in Exhibit 8:page 55; 11 12 13 14 15 16 17 18 19 20 21 22 What suspicious behavior did Officer Titus witness before the purple Neon turned at the red light? A. The occupants. Q. They're Hispanic males, but what beyond that was suspicious? A. Their description. Q. Again, Hispanic males, close haircuts. You can find a lot of those. What else did Officer Titus see that made the appearance of the purple Neon or its occupants suspicious? A. I think that's enough.

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The defendant cites to Marquez v. Albuquerque for support for the idea that at least a reasonable officer would conclude that a suspicion existed as to the passengers in the vehicle. Motion, §3. In that case the 10th Circuit ruled that the trial court was not required to grant the Plaintiff judgment as a matter of law, on the issue of whether the officer used excessive force during the arrest. The court believed that sufficient circumstances existed to justify a jury finding that the officer used reasonable and appropriate force. In other words, Marquez argued the evidence was such that the only rational conclusion was the defendant used excessive force in effectuating her arrest. However, the identification in the Marquez case was far more certain than in the case at hand. Marquez v. the City of Albuquerque, 399 F.3d 1216 (10th Cir. 2005). In Marquez, "a witness described two suspects, a 17 year old Hispanic male 5'4" tall and 145 lbs, and a tall, thin, and bald African-American male who was approximately 20 years old. The witness described the car the suspects used as a large, silver, older model vehicle and provided the license plate number, which belonged to a 1995 silver Pontiac." The vehicle description as a silver Pontiac was a match, and in the area of the reported burglary. The occupants of the vehicle were a rough match, with an African American female and a male with brown hair and a blue shirt. The driver of the vehicle was the female, who actively eluded police involved in the pursuit, who displayed lights and sirens. No factors like those listed in Marquez exists in this case to identify the purple Neon and its occupants as anything other than innocent drivers in west Denver. A person's choice to turn away from the scene of a police investigation is not grounds for reasonable suspicion. In Outlaw v. People, 17 P.3d 150, 157 (Colo. 2001), the state Supreme Court said "when a police officer approaches an individual in a public place and seeks to ask him questions, the individual may ignore the officer and proceed on his way." See People v. Padgett, 932

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P.2d 810, 814, 26 Colo. Law. No. 4 209 (Colo. 1997) ("An individual's attempt to avoid coming into contact with a police officer does not, without more, justify an investigative detention of the individual."). There is nothing more to the contact with Mr. Gonzales in this case but the officer's own admission he wanted to "contact" him. Titus stated during his deposition that he was going to detain them for an "investigatory stop", and that the contact was not consensual. Exh. One, 103:24104:8. Titus's suspicion was completely unfounded; and the individuals in the purple Neon were unconnected with the felony menacing Titus sought to investigate. Titus had already identified the driver as the felony menacing suspect, however, and chose to pursue them through city streets to contact all occupants of the vehicle. Officer Titus believed that he saw the driver of the purple Neon enough in "one or two seconds", Exh. One, at 51:19, that he was able to recognize him as matching the description of the felony menacing suspect. That implies however that Gonzales did not match this description in any way. Therefore, Titus had no reason to believe that Gonzales was the felony menacing suspect he was investigating. III. Officers must have independent reasonable suspicion that the passengers, not the driver, have themselves engaged in criminal activity Police officers must have independent reasonable suspicion to believe that the passengers in a car are engaged in criminal activity. Although the initial detention of the passengers in a traffic stop, "is merely coincidental with the detention of the driver," People v. H.J., 931 P.2d 1177, 182 (Colo. 1997), "the officer is required to have reasonable suspicion that the passengers were engaged in criminal activity, independent of the traffic infraction committed by the driver, before subjecting them to an investigatory stop." People v. Jackson, 39 P.3d 1174, 1183 (2002).

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Officer Titus's statements are inconsistent. Titus asserts that in the moment the purple Neon ran the red light, he was able to positively identify the driver as the felony menacing suspect, which he indicated was limited to a Hispanic male, with a shaved head, operating the Neon. Titus was able to do this even though it was dark and the car was traveling at a "pretty decent rate of speed." However, when Titus next contacted the purple Neon in the cul-de-sac, he was unable to identify which of the three remaining men was the person he had identified in the purple Neon even though Titus had his headlights and search light trained on the suspects and had ample time to observe and interact with them. Exh. One, 102:22 ­ 23; 105:11 ­ 106:1. According to Titus, he considered everyone a suspect, "They were all suspects. They were all armed, in my head." Exh. One, 94:21 ­ 24. This conclusion is only valid if it is reasonable. Titus was able to identify the driver as a suspect in the brief moment as he sped through a red light. Therefore, it is unreasonable that Titus could not positively identify anyone as the felony menacing suspect later in the cul-de-sac, or at the very least exclude the individuals as the primary suspect who was also potentially armed. IV. Without any other basis for reasonable suspicion, flight alone would not give Titus the authority to detain Gonzales. A suspect's `furtive gestures' or flight from an officer can be a factor in evaluating whether the officer has reasonable suspicion. Archuleta, 980 P.2d 509. However, flight alone or disregard for an officer's order cannot support reasonable suspicion for an investigatory stop. People v. Rahming, 795 P.2d 1338, 1342 (Colo. 1990); People v. Wilson, 784 P.2d 325, 327 (Colo. 1989); Thomas, 660 P.2d at 1275. The Tenth Circuit has "repeatedly held that nervousness is of limited significance in determining reasonable suspicion and that the government repetitive reliance on nervousness . . . `must be treated with caution.'" United States v. Salzano, 158 F.3d 1107, 1113 (10th Cir. 1998); see also Hall, 978 F.2d at 622 n.4. Even if the suspect's behavior arises to evasive, this is merely a factor

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in determining reasonable suspicion that must be supported by other articulable facts. See Illinois v. Wardlow, 528 U.S. 119, 124-5, 145 L. Ed. 2d 570, 120 S. Ct. 673 (2000) (headlong flight is suggestive of wrongdoing and helps supply reasonable suspicion supporting an investigative stop). The court must evaluate the validity of a stop based on the totality of the circumstances from the officer's objective point of view at the time of the stop. Even considering this discretionary standard, no reasonable officer would have a basis to believe that the flight of Gonzales amounted to reasonable suspicion. Because an innocent person may display a guilty reaction to the presence of police, furtive gestures alone cannot constitute reasonable suspicion. People v. Thomas, 660 P.2d 1272 (Colo. 1983) (overruled in part). "Even when the act of running is motivated by an effort to avoid contact with police, it still does not constitute the type of specific and articulable fact that is constitutionally sufficient to justify a stop." Id. at 1275. "It is only when a person's effort to avoid police contact is coupled with an officer's specific knowledge connecting that person to some other action or circumstance indicative of criminal conduct that the evasive action, whether running or otherwise, takes on a sufficiently suspicious character to justify a stop." Id. at 1276 (emphasis added). Titus had no reason to believe that Gonzales was a suspect in the felony menacing. Not only did Gonzales not fit the description of the felony menacing suspect, but there was no indication that the felony menacing suspect was accompanied by other suspects. Additionally, even if Titus's suspicion of the driver was valid, that suspicion cannot be imputed to the passengers of the car unless the officer has independent reasonable suspicion to believe that they are suspects of a crime as well. In fact, the only `suspicious' behavior that Titus witnessed was a traffic infraction, which does not implicate the passengers of the car. In fact, the traffic infractions like running through red lights or stop signs, amounts to a non-criminalized infraction. See, C.R.S. 42-4-603,

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disobedience of traffic control devices is a class A traffic infraction; and C.R.S. 42-4-1701, indicating that such moving violations are `civil in nature' and fined up to one hundred dollars only. Therefore, Titus's sole basis for detaining Gonzalez was Gonzales's attempt to `jog away'. This is not a sufficient basis for reasonable suspicion, and could not even justify the officer's orders to `freeze'. The Defendant cites to United States v. Sokolow, 490 U.S. 1, 109 S. Ct. 1581, 104 L. Ed. 2d 1, and United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L. Ed. 2d 740 (2002) to establish the test for reasonable suspicion. The tests restated in Arvizu and Sokolow are in complete agreement with the Terry stop progeny establishing reasonable suspicion as the requisite basis for an investigatory stop. The only addition in Arvizu and Sokolow to the ordinary standard is recognition that in some cases innocent behavior could lead to reasonable suspicion if the behavior is significantly in accordance with a particular criminal activity, in these cases, drug smuggling. In United States v. Sokolow, Drug Enforcement Agency agents gathered information about Sokolow, which lead them to believe that he was smuggling cocaine on an airplane. Sokolow, at 3. Much of the information was lawful and would not have indicated criminal activity: Sokolow paid $2,100 for two airplane tickets from a roll of $20 bills; his destination was a city that was commonly known for illicit drugs; he stayed for only 48 hours; he appeared nervous; and he checked none of his bags. Id. However, the court reasoned that factors which are not by themselves proof of illegal conduct may give a police officer reasonable suspicion, and "there could, of course, be circumstances in which wholly lawful conduct might justify the suspicion the criminal activity is afoot." Sokolow, 109 S. Ct. at 1586. However, a "hunch," or an "inchoate and unparticularized suspicion" is not enough to give an officer reasonable suspicion to stop a suspect. Id. at 1585.

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Similarly, in United States v. Arvizu, the DEA agent witnessed a considerable amount of behavior that wasn't criminal alone but taken together led him to believe that Arvizu was smuggling drugs in his van. Arvizu was driving a mini-van, commonly used for drug smugglers, in an area just north of the Arizona-Mexico border a time when agents were known not to be patrolling the area. He was driving on back roads, which were difficult to pass in a mini-van, rather taking the highway, which had drug checkpoints. The officer noted that the children in the back of van had their knees raised as if they were resting their feet on a large object. Arvizu appeared stiff and nervous when he noticed the agent's car and once the agent started following the van, the children would wave at intervals without turning around, as if they were being instructed to do so. Finally, Arvizu abruptly turned at the last place before entering the highway, which allowed him to avoid a checkpoint. Presumably, the Defendant cites to Sokolow and Arvizu for the proposition that innocent behavior could still rise to the level of a reasonable suspicion. According to the Defendant, Titus had enough information that he could have reasonably concluded that Gonzales's lawful actions amounted to criminal activity. However, the quantum of information that the DEA agents in Sokolow and Arvizu used before stopping the suspects was significantly more than that which Titus possessed at the time he detained Gonzales. The only information that Titus used to base his belief that Gonzales was a criminal suspect was an unfounded identification of Pacheco-Dominguez the driver, as a felony menacing suspect, the reckless driving of Pacheco-Dominguez, and Gonzales jogging away from the purple Neon. Furthermore, as Arvizu points out, when evaluating the totality of the circumstances to see whether the detaining officer has a "particularized and objective basis" for suspecting legal wrongdoing, the court may look to the officer's own experience and specialized training to make inferences from and deductions about the cumulative information available to them that "might

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elude an untrained person." Arvizu, 534 U.S. at 273 (quoting United States v. Cortez, 449 U.S. 411, 4178, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981). The DEA agents in Arvizu and Sokolow possessed specialized training and experience in recognizing the behavior of drug smugglers specifically. Titus cannot state that his training and experience would allow him to recognize particular behavior of felony menacing suspects, or even Hispanic suspects apparently. Exh. One, at 110: 6 ­ 7. V. Because Titus did not have lawful authority to detain Gonzales in the first place, Titus did not have probable cause to arrest for interference with lawful arrest. The Fourth Amendment protects "[t]he right of the people," through the Fourteenth Amendment, "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U. S. Const. Amend. IV. The cases illustrating the scope of the interference charge itself is illustrated by: People v. Smith, 13 P.3d 300 (Colo. 2000) ­ pulling a Suburban behind a police car that had stopped another car and leaving the Suburban's light on is interference. People v. Pena-Flores, 63 P.3d 675 (Utah 2002) ­ telling detainees that they did not have to go with the police, answer questions, or have their picture taken was interference. City and County of Denver v. Howard, 622 P.2d 568 (Colo. 1981) ­ attempting to unlock police door to release detainee was interference. Interference does not have to rise to the level of "using or threatening to use violence, force, or physical interference, or obstacle." In addition, the section does not require specific intent to obstruct, impair, or hinder the performance of the officer. On the other hand, ignoring an officer's order does not give cause for arrest unless the officer has reasonable suspicion to believe that the person has or is committing a crime. United States v. Davis, 94. F.3d 1465, 1467 (10th Cir. 1996). In Davis, officers were patrolling an area with a

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history of criminal activity. They observed a car with four individuals inside it parked in front of a building known to be associated with criminal activity. As the officers arrived, one of the individuals in the car exited the vehicle, made eye contact with one of the officers, and began walking away with his hands in his pockets. The officers recognized the individual as a gang member, ex-convict, and seller of narcotics. The officers told the individual to stop and take his hands out of his pockets. When he continued walking, the officers seized him. The Tenth Circuit Court of Appeals found that the officers' conduct was not based upon "a reasonable suspicion that criminal activity was afoot." Id. at 1468. Because Titus did not have reasonable suspicion to believe that Gonzales was engaged in criminal activity, Titus did not have authority to detain Gonzales for disregarding Titus's order to `freeze'. This case is not one involving an affirmative act to interfere with a lawful order or duty of a police officer; instead, it constitutes the temporary ignoring of an officer's command at best to "freeze". The officer indicates in his deposition both that Greg Gonzales was "in a position of cover" when the dog was sent, and that he was still running to the tree at the time. Compare, Exh. One, at 107:7 ­ 18, to Exh. One, at 116:17 ­ 117:2, the dog was released while Gonzales was "still running" to the tree. The officer never indicates any aggressive move by the fourteen year old, who does nothing but move to a position ten feet away and stops. B. Heck v. Humphrey The actual entries from the transcript of Greg Gonzales' deposition appear below, and indicate the disposition of the juvenile ordinance violation alleged against Mr. Gonzales. This is the only evidence presented in Defendant Titus' Motion for Summary Judgment to prove that Mr. Gonzales was convicted.

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p. 187 22 What were you charged with criminally? 23 A. Interference. 24 Q. And do you recall what the results of those charges 25 were? p. 188 1 2 3 A. It was diversion. Q. Were you convicted? Did you plead guilty? A. No. I went to court and he gave me diversion.

Exh. Two, pp. 187 to 188. The holding in Heck v. Humphrey requires a bit more to preclude a plaintiff from bringing a lawsuit for damages. The actual holding states, "Held: In order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254." This is not an action for unconstitutional conviction or imprisonment, like the malicious prosecution suit in Heck. The court in a footnote explained that the "other harm" provision of this holding applied to a fairly narrow set of §1983 claims. " An example of this latter category -- a § 1983 action that does not seek damages directly attributable to conviction or confinement but whose successful prosecution would necessarily imply that the plaintiff's criminal conviction was wrongful -- would be the following: a state defendant is convicted of and sentenced for the crime of resisting arrest, defined as intentionally preventing a peace officer from effecting a lawful arrest. (This is a common definition of that offense. See People v. Peacock, 68 N.Y.2d 675, 496 N.E.2d 683 (1986); 4 C. Torcia, Wharton's Criminal Law § 593, p. 307 (14th ed. 1981). He then brings a § 1983 action against the arresting officer, seeking damages for violation of his Fourth Amendment right to be free from unreasonable seizures. In order to prevail in this § 1983 action, he would have to negate an element of the offense of which he has been convicted. Regardless of the state law concerning res judicata, see n. 2, supra, the § 1983 action will not lie. Heck, Id., at footnote 6.

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The concern was for the finality of convictions in state courts, and collateral proceedings like § 1983 actions and their affect upon such convictions. Here, there is no such concern. The result of any diversion program is the dismissal of the underlying case. There is no indication by the defendant Titus that there is an actual conviction of the Plaintiff for such charge. See, C.R.S. 19-1103(44) which states the definition of state wide diversion programs, (44) "Diversion" means a decision made by a person with authority or a delegate of that person that results in specific official action of the legal system not being taken in regard to a specific juvenile or child and in lieu thereof providing individually designed services by a specific program. The goal of diversion is to prevent further involvement of the juvenile or child in the formal legal system. Diversion of a juvenile or child may take place either at the prefiling level as an alternative to the filing of a petition pursuant to section 19-2-512 or at the postadjudication level as an adjunct to probation services following an adjudicatory hearing pursuant to section 19-3-505 or a disposition as a part of sentencing pursuant to section 19-2-907. "Services", as used in this subsection (44), includes but is not limited to diagnostic needs assessment, restitution programs, community service, job training and placement, specialized tutoring, constructive recreational activities, general counseling and counseling during a crisis situation, and follow-up activities. The authority to implement such programs is in C.R.S. 19-2-303, and is attached. Plainly, the idea behind the diversion programming is to avoid adjudications and convictions for minor offenders. Diversion, like any deferred adjudication program, does not operate as a conviction for any purpose other than impeachment during the period of probation. A "judgment of conviction" under Colo. Crim. P. 32(c) " ...shall consist of a recital of the plea, the verdict or findings, the sentence, the finding of the amount of presentence confinement, and costs, if any are assessed against the defendant." Since sentencing is deferred, a pending "deferred judgment" or diversion simply cannot, in that context, be a judgment of conviction. After completion of conditions of a deferred judgment, no conviction exists. See, Weber v. State Bd. Of Nursing, 830 P.2d 1128 (Colo. App. 1992). Hafelfinger v. District Court, 674 P.2d 375 (Colo. 1984) (after withdrawal of plea to deferred judgment, earlier acceptance of the guilty plea is vitiated) A plea and resulting order on

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such a deferred adjudication, during the pendency thereof, and only for purposes of impeachment of a witness by felony conviction is for that purpose and in that context, a conviction. See, e.g. People v. Flores, 902 P.2d 417 (Colo. App. 1994). The impeachment by felony conviction is clearly the only context within which a current deferral sentence is treated as a source of bias or motive, consistent with state court opinions on other existing conditions like probation or promises reached with the prosecution. Reading both the applicable rules and statutes together, and considering the longstanding and well-settled rule of statutory construction which holds that statutes [and rules of court authorized by statute] be read in pari materia (See C.R.S § 2-4-201(Intentions in the enactment of statutes). The operation of deferred judgments has one other limited application as a conviction; See, C.R.S. 18-19-102 which says that a deferred sentence is considered a conviction "as used in this article", to wit TITLE 18, ARTICLE 19 dealing with the drug offender surcharge. C. The City of Denver is liable for its policies and customs, and the direct consequences of such guidelines. In this case the City of Denver issued certain policy guidelines and statements. As in all cases of this type those guidelines are used by the rank and file members to guide their actions. However guidelines can be so vague or indeterminate as to provide no guidance at all. Municipal liability for section 1983 violations results if a deprivation of constitutional rights was inflicted pursuant to official custom or policy. Official policy is ordinarily contained in duly promulgated policy statements, ordinances or regulations. But a policy may also be evidenced by custom, that is: (2).. . . a persistent, widespread practice of City officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well-settled as to constitute a custom that fairly represents municipal policy. . . Actions of officers or employees of a municipality do not render the municipality liable under section 1983 unless they execute official policy as above defined.

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Bryan County v. Brown, 520 U.S. 397 (1997) 520 U.S. at 405-07, 117 S.Ct. at 1387. An unconstitutional official policy renders a municipality culpable under § 1983,(21) even a facially innocuous policy will support liability if it was promulgated with deliberate indifference to the "known or obvious consequences" that constitutional violations would result. Bryan County, 520 U.S. at 407, 117 S.Ct. at 1389, 1390.(22) Deliberate indifference of this sort is a stringent test, and "a showing of simple or even heightened negligence will not suffice" to prove municipal culpability In City of Canton the Supreme Court held that deliberate indifference was the minimum standard of culpability necessary to maintain a S 1983 due process action against a municipality for a policy or custom of inadequate training of police officers. City of Canton v. Harris, 489 U.S. 378, 388 (1989. The Court reasoned that a municipality's inadequate training of its employees can only constitute a "policy or custom" when such inadequate training "evidences a `deliberate indifference' to the rights of its inhabitants." Id. at 389. But the Court also specified that the deliberate indifference standard "does not turn upon the degree of fault (if any) that a plaintiff must show to make out an underlying claim of a constitutional violation." Id. at 388 n.8. To be liable, the municipality must have had 1) an "official municipal policy of some nature," id. at 691, 2) that was the "direct cause" or "moving force" behind the constitutional violations. City of Oklahoma City v. Tuttle, 471 U.S. 808, 820 (1985); Pembaur v. City of Cincinnati, 475 U.S. 469, 480-85 (1986) (finding municipal liability even when the "policy" was evinced by a single incident. Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003). In addition to culpability, there must be a direct causal link between the municipal policy and the constitutional deprivation. Monell describes the high threshold of proof by stating that the policy

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must be the "moving force" behind the violation. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). See also Canton, 489 U.S. at 389. [l]ocal governing bodies . . . can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. See, Gonzales v. City of Castle Rock, No. 01-1053 (10th Cir. 09/02/2005)(City may be liable for inaction of officers pursuant to policy or custom). A claim of municipal liability under section 1983 is sufficient to withstand a motion to dismiss 'even if the claim is based on nothing more than a bare allegation that the individual officers' conduct conformed to official policy, custom, or practice.' " Karim- Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 624 (9th Cir. 1988) (quoting Shah v. County of Los Angeles, 797 F.2d 743, 747 (9th Cir. 1986)). A municipality may be liable for actions resulting in violations of constitutional rights only when the conduct of its official or agent is executed pursuant to a government policy or custom. Monell, 436 U.S. 658. To establish municipal liability under S 1983, a plaintiff must show that (1) he was deprived of a constitutional right; (2) the municipality has a policy; (3) the policy amounts to deliberate indifference to plaintiff's constitutional rights; and (4) the policy is the moving force behind the constitutional violation. Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992); see also City of Canton, 489 U.S. at 388. The Supreme Court has emphasized that the unconstitutional acts of a government agent cannot, standing alone, lead to municipal liability; there is no respondeat superior liability under S 1983. Monell, 436 U.S. at 692-95. A municipality may only be liable where its policies are the "`moving force [behind] the constitutional violation.'" City of Canton at 389 (quoting Monell at 694).

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[w]here a municipal officer operates pursuant to a local custom or procedure, the Parratt/Hudson doctrine is inapposite: actions in accordance with an "official policy" under Monell can hardly be labeled "random and unauthorized," . . . . [W]here employees are acting in accord with customary procedures, the "random and unauthorized" element required for the application of the Parratt/Hudson doctrine is simply not met. Id. at 165 (citations omitted). Likewise, in Wilson v. Civil Town of Clayton, 839 F.2d 375 (7th Cir. 1988), the court stated: [w]hen it is the Town itself that is being sued, and the suit is allowed under Monell because the action was executed in accordance with "official policy," the tortious loss of property can never be the result of a random and unauthorized act. Therefore, a complaint asserting municipal liability under Monell by definition states a claim to which Parratt is inapposite. Here the supervising officer Hvizdak indicated the use of force in this case was entirely justified, and pursuant to policy. He also indicated the very scope and extent of the force used was entirely appropriate. 72 Okay. Having looked at the photographs of the injuries that resulted from the deployment of the dog, is it still your opinion that the force deployed against Mr. Gonzales was reasonable and appropriate? A. Yes. Can I elaborate on that last question? I don't want to take up your time. Q. No. That's fine. A. Of course, you know, given the attendant circumstances and the reasonable beliefs that Officer Titus had, it's absolutely a reasonable deployment. Matthias v. Bingley, 906 F.2d 1047, 1058 (5th Cir. 1990) ("rationale of Parratt . . . does not apply when the challenged actions comply with City policy"); Sullivan v. Town of Salem, 805 F.2d 81, 86 (2d Cir. 1986) (if conduct of official was pursuant to town policy, Parratt not applicable); Sanders v. Kennedy, 794 F.2d 478, 482 (9th Cir. 1986) (Parratt does not apply in § 1983 action against individual
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officers and chief of police where plaintiff alleged property damage incurred during course of arrest was result of official policy, practice or custom); McKee v. Heggy, 703 F.2d 479, 482-83 (10th Cir. 1983) (where record suggested plaintiff's seized car was sold by police department pursuant to customary procedures treating seized vehicles as abandoned, city could be held liable for violation of procedural due process claims). In this case the policy of the Denver police department completely sanctioned the actions of the Defendant Titus here, through both policies, and the customary procedures of the K9 unit. This much was established by the supervisor Sgt. Evan Hvizdak during his deposition. The officer testified: 1. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 19 Okay. Can you distinguish the difference for me? A. Direct deployment or pursuit, as you term it, would be if you know where the suspect is and you want to stop the suspect. The biggest difference there that differentiates that from a search is that in a search, we do not know where the suspect is hiding. Q. Okay. So is it your opinion that when Oscar, the canine unit in this case, was deployed August 23 of 2001, that he was a direct deployment in pursuit of a suspect or it was a search? A. The first.

Exhibit One, page 19. Sergeant Hvizdak, the supervising Denver officer, indicated that the deployment of the dog against suspects who flee was entirely appropriate under the Denver policy manuals. 87 2 Let me ask this: It appears from all 3 the documents you reviewed and listed in your report 4 that no action was taken against Officer Titus for

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5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

his actions that night? A. That's my understanding. I don't think there has been since then. Q. Would it have been a violation of any Denver Police Department policy to have not deployed the dog against Mr. Gonzales that night? A. This might be a lengthy answer. No, he wouldn't have violated any policy. But I think he would have -- I think you would have to call into question his judgment had he not deployed the dog and been able to stop the suspect before he escaped. When you consider his training and his expertise and his control over the dog, I would have -- and his ability to stop that suspect and prevent an open-area search for two suspects, I would have called into question his judgment.

Exhibit Eight at 87. This is in direct conflict with the testimony of the expert for Plaintiff, former deputy chief of police Roger Willard. Mr. Willard provided a clear summary of the Plaintiff's version of this case during his deposition: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 89 Okay. And you also stated in your Paragraph 4 that the use of Oscar, the police service dog in this case, was an "improper deployment of a police service dog." A. Yes. Q. And explain to me the basis for your conclusion in that regard. A. It is my opinion that Officer Titus knew or should have known that the four people who fled from that car did not match the description given of the original incident. The original incident talked about one person who had a gun, who had a bald head and tattoos, and does not mention more than one person in the original incident. Officer Titus had an opportunity to clearly see the driver of the purple car, knew or should have known that the operator of that car did not have a bald head, albeit he may have had a close haircut; that Officer Titus' information at the time he encountered that car and the four occupants on Harlan Street was that he had a traffic situation; that there

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90 1 were traffic violations, running a red light, driving without 2 proper lighting equipment, exceeding the speed limit, 3 apparently, although Titus never gives an estimation of the 4 speed of the car, other than he believed it was excessive. 5 That when he released his police service dog, he was 6 not being threatened by any one of the occupants of the car; 7 that that use of force to effect an arrest for a traffic 8 infraction or even to detain them and investigate the stop for 9 any other offense was outside the reasonable and prudent 10 standard, in my opinion, for the deployment and the use of 11 that force. The actual policy of the Denver Police K9 Unit is contained in Exhibit Twelve, and the relevant portion consists of two pages. The Denver Policy states on page five, ¶4. Before deploying the Police Service Dog, the canine officer should evaluate the utilization under Graham v. Connor guidelines. ¶5. Canine officers will issue three (3) verbal warnings before releasing the dog. The same policy states on page six: ¶2 PSD technicians must have reasonable suspicion the suspect has committed a crime and/or is a danger to the public or officer and should make every effort to insure that the canine uses only the force necessary to affect the apprehension. See, Exhibit Thirteen. Officer Titus displayed no awareness of the guidelines under Graham v. Connor, 490 U.S. 386, 395 (1989). He additionally had little idea what the dog was doing once it went behind the tree. See, Exh. One pp. 121-122. There was no assessment of a lesser degree of force to be used by the officer, and in fact another suspect was captured without incident by a separate dog handler. The Plaintiff indicated no mention was made of a dog until it actually bit him. The other passengers of

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the vehicle heard the dog mentioned perhaps one time, and no lay witness from the surrounding houses heard any mention made of a dog being released. See, Exh. Thirteen Statements of Connie Archuleta and Martha Theurer. The guidelines announced in Graham v. Connor are now sixteen years old, with several cases announced since that time dealing with use of force, reasonable suspicion and probable cause. In particular, the nature of the crime being investigated was disobedience to a lawful order, not menacing as Gonzales was not a reasonable suspect in that investigation. The use of force to apprehend a person disobeying an officer's command to stop should not have risen to the level of severe bites and permanent injury. This particular officer used the police K9 as an extra version of himself, sending the dog out to bite and hold an unknown party for a minimal violation of law, and could not control the dog once it was out of his sight and biting the Plaintiff. The dog bit the Plaintiff several times, switching his hold and engaging each leg at times for a better grip. The officer was unable to respond to the screams of the Plaintiff for minutes. See, Exh. Two at 117:13 ­ 16. In that vein, the court can also consider the unreasonableness of the officer's conduct in this case in reaching findings against the request to dismiss these claims. The 10th Circuit indicated it must consider "'whether [the officers'] own reckless or deliberate conduct during the seizure unreasonably created the need to use such force.'" Allen v. Muskogee, 119 F.3d 837, 840 (10th Cir. 1997) (quoting Sevier v. City of Lawrence, 60 F.3d 695, 699 (10th Cir. 1995)). An officer's conduct before the suspect threatens force is therefore relevant provided it is "immediately connected" to the seizure and the threat of force. Id.; Romero v. Bd. of County Comm'rs, 60 F.3d 702, 705 n.5 (10th Cir. 1995). The officer here plainly reacted unreasonably to the original menacing call, pursuing an unconnected vehicle down city streets without verifying any other detail of the original menacing

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call. The officer corners the car and without backup or use of his own intercom, deploys a police service dog with no real warning against a juvenile suspect. Here there was no threat of force by the Plaintiff himself; only the short lived attempt at flight and the inability to surrender to the officer once the dog began to attack him. The policies of the Denver Police Department indicate only reasonable suspicion is necessary to engage a suspect with a police service dog. This statement appears to be incorrect, in light of the factors in Graham v. Connor and the statements in cases since that time. The seriousness with which one would investigate any crime would seem to be mitigated by the lack of a nexus between one's chosen suspects, and the crime allegedly committed. The 10th Circuit recognized this type of connection when it stated that " the reasonableness inquiry in excessive force cases overlaps with the qualified immunity question, which also requires the application of a reasonableness standard in order to determine whether an officer violated a clearly established right. E.g., id.; Quezada v. County of Bernalillo, 944 F.2d 710, 718 (10th Cir. 1991)." Medina v. Cram, 252 F.3d 1124(10th Cir. 06/12/2001). The interesting thing about this case is Officer Titus and Sergeant Hvizdak do not agree on even the character of the initial purpose for detention of Plaintiff in this case. The standards to be applied to the use of the dog vary depending on the purpose of this initial determination. The policy in the Police K9 Unit manual mentions only "reasonable suspicion" as necessary for deployment of the dog; but every use of a police weapon is simultaneously governed by state statute, including C.R.S. 18-1-107 which states, ". . . a peace officer is justified in using reasonable and appropriate physical force upon another person when and to the extent that he reasonably believes it necessary: (a) to effect an arrest. . . ."

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This section does not admit of ambiguity, and represents another source of clearly established law. The section does not allow for use of force upon those who are suspicious or merely being investigated. They do not allow for uses of force against those who are merely driving while Hispanic. This state law informs peace officers that uses of force are authorized in instances of arrest, hopefully premised on probable cause and not one's speculation based on skin color alone. See, Exhibit One at 110:6 ­ 11. The defendant City in their Motion for Summary Judgment makes the following claim: Finally, contrary to the allegation in the Complaint, Plaintiff's retained expert, Roger Willard, can not identify an unconstitutional policy and custom. The actual text of the deposition contains a different question: 115 6 Is it your opinion in this case that the Denver 7 Police Department K-9 policy was insufficient or deficient or 8 is it your opinion in this case that Officer Titus did not 9 follow a policy which you believe to be sound? The more correct statement on policy from the deposition is reproduced below: 17 18 19 20 21 22 23 24 25 1 2 3 4 92 Are you aware of any policies of the Denver Police Department and Metro K-9 Unit that allowed for the conduct alleged in this case? A. I'm not sure I understand the question. Q. Let me rephrase that. Are you aware of any policies adopted by the Denver Police Department or Metro K-9 Unit that allowed for Officer Titus to do what Plaintiff allege he did wrong in this case? A. I think the only way I can answer that is that there 93 were no specific policies that I read that prohibited him from deploying his K-9 in this circumstance. As I recall, the policy, it recommends that a supervisor authorize the deployment