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 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 Titus, 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 to whether a friable issue of fact exists must be resolved against the moving party. E.g.,

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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. The following exhibits are attached: 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. Five. Booking photos of Amparan, Pacheco, and Santistevan. Six. Photos of injuries.

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Seven. Photo of Greg Gonzales, 8/27/2001. 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. 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.

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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 on any Federal Claims 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 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

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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. 04/29/2003). "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 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

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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 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 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;

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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. 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. 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 to detain Gonzales and therefore, the detention of Gonzales was unconstitutional.

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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 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 officer, 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, Id. 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, 160 L. Ed. 2d 537, U.S. , 125 S. Ct. 588, 593 (2004). Similarly, the officer's subjective intent is not relevant to a determination that he has reasonable suspicion to

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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. People v. Rodriguez, 945 P.2d 1351, 1360 (Colo. 1997); Altman, 938 P.2d at 147 . 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 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). 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

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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. 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.

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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. He 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 if 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 the driver, as a felony menacing suspect, the reckless driving of Pacheco, 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. An additional exception exists which could include the conduct here. That exception allows that if the official's conduct lies so obviously at the very core of what the Fourth Amendment prohibits that the unlawfulness of the conduct was readily apparent to the official, notwithstanding the lack of case law," the official is not entitled to the defense of qualified immunity. Id.; see also United States v. Lanier, 520 U.S. 259, 117 S. Ct. 1219, 1227-28, 137 L. Ed. 2d 432 (1997) ("the easiest cases don't even arise. There has never been... a section 1983 case accusing welfare officials of selling foster children

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into slavery; it does not follow that if such a case arose, the officials would be immune from damages [or criminal] liability.") (citations omitted); McDonald v. Haskins, 966 F.2d 292, 295 (7th Cir.1992)("It would create perverse incentives indeed if a qualified immunity defense could succeed against those types of claims that have not previously arisen because the behavior alleged is so egregious that no like case is on the books."). See, e.g. Priester v. City of Riviera Beach, 208 F.3d 919; 2000 U.S. App. LEXIS 6167 (11th Cir. 2000); the case went beyond the particularized case law requirement, and qualified immunity was denied to the defendants, when a surrendering suspect was confronted and then attacked by a police service dog while officers watched for two minutes, and officers threatened to shoot him if he kicked at the attacking dog. VI. 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. p. 187 22 What were you charged with criminally? 23 24 A. Interference. Q. And do you recall what the results of those charges

25 were?

p. 188 1 2 A. It was diversion. Q. Were you convicted? Did you plead guilty?

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3

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.

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Regardless of the state law concerning res judicata, see n. 2, supra, the § 1983 action will not lie. Heck, Id., at footnote 6. 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. VII. Character of the Detention

First, the use of a police service dog is a use of force by a police officer. In Denver, this is described in their policy manuals as a use of non-lethal force just above a chemical agent like mace, but below the use of a baton. Exh. One, 106:2 ­ 14. Second, the burden on Plaintiff shifts only after the Defendant pleads qualified immunity. The shift however is not as heavy as sifting through case law for a case specifically on point. A requirement of a case directly on point

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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. A. Even if Titus did have reasonable suspicion to detain Gonzales, the character of the detention was unreasonable in light of the purpose. "A police officer, having less than probable cause to arrest, may temporarily detain an individual for investigatory purposes if all of the following criteria exist: (1) there is reasonable suspicion that the individual has committed, or is about to commit, a crime; (2) (3) the purpose of the detention is reasonable; and the character of the detention is reasonable when considered in light of the purpose." See People v. Garcia, 11 P.3d 449, 454 (Colo. 2000), People v. Wilson, 784 P.2d 325, 327 (Colo. 1989). "The existence of these conditions must be judged against an objective standard that takes in consideration the facts and circumstances known to the officer at the time of the intrusion and evaluates the purpose, scope, and character of the intrusion in light of those facts." People v. Savage, 698 P.2d 1330, 1334-5 (Colo. 1985). At the time the facts and circumstance known to Officer Titus were as recited above. The purpose of the stop was allegedly investigatory even though Titus lacked reasonable suspicion to stop Gonzales. Beyond the investigatory purpose, Titus claims that the threat to his safety was an alternative purpose for the detention of Gonzales, despite never having witnessed any weapon amongst the individuals he arrested. In order to detain an individual who is a threat to an

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officer, the officer must have a reasonable, articulable suspicion that officer safety is in fact compromised. See Jackson, 948 P.2d at 507-08. However, Titus never witnessed any of the occupants of the car carrying weapons; Gonzales never acted aggressively toward Titus. In fact, Titus acknowledged that Gonzales was the least aggressive of the group. He was certainly, according to their individual descriptions, the shortest and smallest. The purpose of detaining Greg Gonzales with the dog should be measured against the escape of the fourth individual who jumped over the fence. This individual was later found by another dog team, hiding under a shrub, and was not injured at all. Even though Titus did not have reasonable suspicion to stop Gonzales nor did he have a reasonable belief that his safety was compromised, Officer Titus, nonetheless, effected a full blown arrest of Gonzales when Gonzales was violently mauled and tackled to the ground by his canine Oscar. The very character of such a detention is unreasonable in light of the purpose here, which the Officer indicated was an investigatory detention. The officer was plainly mistaken in saying that such a detention did not amount to an arrest. Regardless, the detention was effected in such a manner as to wound and injure an otherwise uninvolved witness to a traffic violation. Therefore, the character of the detention was not supported by the legal requirement of probable cause. B. The scope of the force used was excessive This officer was unable to disengage his canine from the fourteen year old, for an extended period of time while the dog attacked. The exhibits to Titus' deposition demonstrated the extent of the injuries to the child. First and foremost, however, the officer failed to take reasonable steps to protect against his initial use of the dog. He for example admitted he did not use the public address system to tell the fleeing males to stop. Exh. One, at 63.12. He gave perhaps two commands to stop, with other language to convey they should stop. Exh. One, at 63.4. His police service dog was

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barking this whole time Exh. One, at 70:7. He told the individuals to get on the ground. Exh. One, 75.8., and after more commands, Exh. One, 98:5, the suspects stopped at that point, Exh. One at 64.8, 68.13. His dog made a "Target ID", Exh. One at 72:12, 76.14-79.24 and Titus gave the command to release the dog in German. At least one circuit has held that "failure to give a warning before releasing a police dog is objectively unreasonable in an excessive force context." See Vathekan v. Prince George's County, 154 F.3d 173, 179 (6th Cir. 1998) and this case was cited for the same proposition in Bey v. Cimarossa, 2000 U.S. App. LEXIS 169 (7th Cir. 2000). The Fourth Amendment protects against unreasonable seizures, not seizures that "shock the conscience" or cause "severe injuries." If, under the totality of circumstances, a police officer unreasonably seizes a person by using excessive force, he has violated that person's Fourth Amendment rights. The objectively unreasonable seizure itself (regardless of the officer's motive or whether any injury inflicted was severe) crosses the constitutional threshold. Lester v. City of Chicago, 830 F.2d 706, 712 (7th Cir. 1987). Officer Titus did not call the dog off after the other suspects were neutralized; they were laying down and compliant with commands Exh. One, at 85.6, and Titus allowed the dog to continue to bite and hold the fourteen year old Plaintiff. Titus was aware for example that the fleeing suspect was never openly aggressive. Titus o Never saw a weapon. Exh. One, 89.22; o Titus indicated Gonzales was disobeying orders and walking toward Titus, while Gonzales indicated he walked away, then stood still. He did not know he was even bitten by a dog until he heard the growling after he was knocked down. Exh. Two at 111:7-10.

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The officer refused to release the dog until the suspect stopped holding the dog's head. Exh. One, 85.10. The suspect meanwhile was screaming to get the dog off of him. Titus refused until Greg Gonzales complied with his commands to keep his hands off the dog. Officer did not have control of the dog while he was behind the tree, Exh. One, 91.8. The

officer must have reasonable suspicion that the suspect has committed a crime and/or is a danger to the public or officer and should make every effort to ensure that the canine uses only the force necessary to effect the apprehension. Titus did not have leash control of the dog, and believed he could control the dog by voice. Exh. One, at 92. The dog was "engaging" the suspect, meaning he bit and held the boy until told to stop. Exh. One, 122.4. Titus could not see the level of force being used, and could only hear Greg Gonzales screaming. Exh. One, 122, 141. Titus had to put a hand on the dog's collar, and pull the dog away from Gonzales, when it would not disengage. Exh. Two, 142:4 ­ 16. A claim that a law enforcement officer used excessive force in the course of an arrest must be analyzed under the "reasonableness" standard of the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989). "The 'reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 397. This inquiry must be made "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight," and with "careful attention to the facts and circumstances of each particular case." Id. at 396. The 10th Circuit established three factors in determining whether force was excessive within the meaning of the Fourteenth Amendment: (1) the relationship between the amount of force used and the need presented;

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(2) the extent of the injury inflicted; and (3) the motives of the state actor. Hannula v. City of Lakewood, 907 F.2d 129, 131-32 (10th Cir. 1990). Force inspired by malice or by "unwise, excessive zeal amounting to an abuse of official power that shocks the conscience . . . may be redressed under [the Fourteenth Amendment]." Hewitt v. City of Truth or Consequences, 758 F.2d 1375, 1379 (10th Cir.1985). Because the reasonableness inquiry overlaps with the qualified immunity analysis, "a qualified immunity defense [is] of less value when raised in defense of an excessive force claim." Id. (citing Quezada v. County of Bernalillo, 944 F.2d 710, 718 (10th Cir. 1991). Whether an officer acted reasonably in using deadly force is "heavily fact dependent." Romero v. Board of County Comm'rs, 60 F.3d 702, 705 n.5 (10th Cir. 1995) (quoting Wilson, 52 F.3d at 1553). Olsen v. Layton Hills Mall, 312 F.3d 1304 (10th Cir. 12/11/2002) "Consequently, this court will not approve summary judgment in excessive force cases -based on qualified immunity or otherwise -- if the moving party has not quieted all disputed issues of material fact." Allen v. Muskogee, 119 F.3d 837, 840-842 (10th Cir. 1997). Here, Plaintiff described the gulf in the facts in paragraphs above, but would add to this analysis under excessive force claims. Dogs can pose a particular danger in arrest situations. Excessive force can be present for example when an arrestee testifies that he surrenders and lies down spread eagle, and a dog is released on him without further control. In Burrows v. City of Tulsa, 1994 U.S. App. LEXIS 12662 (10th Cir. 1994), the court found that dismissal of the excessive force claims was improper, based on the failure to warn or otherwise guard against the severe bites to Plaintiff. Here, there is no dispute

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that the officer failed to warn of the impending use of force in a way that was accurately communicated; and his conduct in unleashing and ordering the dog to detain the smallest of the suspects, out of sight and control of the handler, amounts to such an excessive use. The dog in this case was allowed unfettered access to the child behind the tree, biting him repeatedly in three different areas, and removing skin from his leg. The dog was eventually released from Greg Gonzales after the officer dragged both dog and boy across the yard, holding the dog by the collar, which in turn held Greg in his teeth. Exh. Two, at 121:1-17. Because questions of reasonableness are not well suited to precise legal determination, the propriety of a particular use of force is generally an issue for the jury. See Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991), cert. denied, 120 L. Ed. 2d 872, 112 S. Ct. 2995 (1992); White by White v. Pierce County, 797 F.2d 812, 816 (9th Cir. 1986). Plaintiff indicates that the excessive force claim based on use of the police service dog is also a jury issue. VIII. Sixth and Eighth Amendment Claims Plaintiff did not assert either A Sixth or an Eighth Amendment claim in the third and final amended complaint in this case.

Wherefore Plaintiff requests that the §1983 claims be tried to a jury, and that defendant's motions for summary judgment be denied.

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Respectfully Submitted, Brian DeBauche & Associates, L.L.C.
By: /s/ Brian DeBauche Brian DeBauche, Esq. 401 Kalamath St. Denver, CO 80204 (303) 571-5023 FAX: (303) 571-5043 Email: [email protected] Attorney for Plaintiff

CERTIFICATE OF MAILING I HEREBY CERTIFY that on December 5, 2005 a true and correct copy of the foregoing Response to Defendant Titus' Motion for Summary Judgment was served by electronically filing this document, addressed to: Thomas Rice, Esq. Eric Ziporin Senter Goldfarb & Rice, L.L.C. P.O. Box 22833 Denver CO 80222-0833 [email protected] David Bruno, Esq. Bruno, Bruno & Colin, P.C. 1560 Broadway, Ste. 1099 Denver, CO 80202-5143 [email protected] Thomas Bigler, Esq. Assistant City Attorneys Civil Litigation Practice Group 201 W. Colfax Ave., Dept. 1108 Denver, CO 80202 [email protected]

/s/ Brian DeBauche

00173767