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

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UNITED STATES DISTRICT COURT DISTRICT OF COLORADO Civil Action No. 03-cv-2328-RPM-OES 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.

DEFENDANT'S MEMORANDUM BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Defendant, OFFICER BRETT C. TITUS, by his attorneys, ERIC M. ZIPORIN of the law firm of SENTER GOLDFARB & RICE, L.L.C., and DAVID BRUNO of the law firm of BRUNO BRUNO & COLIN, P.C., and pursuant to Fed.R.Civ.P. 56, hereby submits his Memorandum Brief in Support of Motion for Summary Judgment as follows: I. STATEMENT OF THE CASE

This case arises out of claims by Plaintiff, Gregory Joseph Gonzales, related to his arrest on August 23, 2001, in the City and County of Denver, Colorado. Plaintiff's Third Amended Complaint and Jury Demand1 sets forth the following claims for relief against Defendant Officer Brett C. Titus (hereinafter "Titus"): (1) First Claim for Relief: Willful and Wanton Negligence; (2) Second Claim for Relief: Assault; (3) Third Claim for Relief: Intentional Infliction of
On December 10, 2004, Plaintiff filed a Third Amended Complaint and Jury Demand which was in actuality his fourth set of amendments to his original Complaint and Jury Demand.
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Emotional Distress; (4) Fourth Claim for Relief: Outrageous conduct; and (5) Fifth, Sixth, and Seventh Claims for Relief: 42 U.S.C. § 1983 deprivation of civil rights for alleged violations of the Fourth Amendment (presumably to include the allegation of an investigatory stop without reasonable suspicion, an arrest without probable cause, and excessive force), Sixth Amendment, and Eighth Amendment. By way of stipulation, Plaintiff has agreed to voluntarily dismiss the entirety of his state claims for relief against all Defendants.2 Accordingly, this motion seeks the dismissal of the entirety of Plaintiff's remaining claims for relief under 42 U.S.C. § 1983. II. STATEMENT OF FACTS

This case arises from the arrest of Plaintiff on August 23, 2001, when a Denver K-9 Police Officer, Titus, initiated a traffic stop of a vehicle occupied by four Hispanic teenagers who matched the description of a suspect wanted for threatening an individual with a gun. Earlier that evening, Plaintiff, along with his brother, Jeffrey Pachecho-Dominguez, and two other passengers, Paul Amparan and Josh Santistevan, were out cruising around Denver in Pachecho-Dominguez's girlfriend's purple Dodge Neon. Pachecho-Dominguez was driving the entire evening. The group had met up with some girls at a park, and all passengers within the vehicle besides Plaintiff had consumed alcohol and smoked marijuana. The group was on their way to take one of the passengers home as they approached the intersection of Evans Avenue and Sheridan Boulevard heading westbound on Evans. At or about that time, Titus had received a dispatch over the radio of a bald, Hispanic male with tattoos who had put a gun to someone's head at 1600 S. Zenobia. Titus began to make

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The parties filed said Stipulation for Dismissal of All State Claims with Prejudice on November 4, 2005.

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his way to that location, and reached the intersection of Evans Avenue and Sheridan Boulevard within a couple of minutes of the dispatch. That intersection was located one block west and four blocks south of 1600 S. Zenobia. Titus was eventually stopped at the intersection in the northbound lane of Sheridan due to a red light, and once that light turned green, he continued northbound. At that same time, he witnessed a purple Dodge Neon heading westbound on Evans run a red light at the intersection turning southbound onto Sheridan. The driver of the vehicle, Pachecho-Dominguez, looked directly at Titus. The driver was a bald or closely-shaven The vehicle

Hispanic male and matched the description of the felony menacing suspect.

increased its speed through the intersection, blacked-out its lights, and took off at a very high rate of speed headed southbound on Sheridan. Titus cleared the intersection, made a u-turn, and followed the vehicle. The purple Neon made a very fast and out-of-control turn westbound on Warren Street into a residential neighborhood. While he was able to maintain a visual of the vehicle, Titus saw it run stop signs at a high rate of speed and hit dips in the road with such force that sparks were shooting out from underneath the vehicle and causing the vehicle to go airborne. Plaintiff estimates that the vehicle was traveling at about 80 miles per hour through the neighborhood. Titus eventually lost sight of the vehicle as it had outrun him, but he again obtained visual when he saw the vehicle approach a dead-end cul-de-sac, come to an abrupt stop, with all four passengers bailing out and running away. Upon reaching the privacy fence in the north corner of the cul-de-sac, one suspect climbed over the fence while the remaining three turned and proceeded in the direction of Titus. Plaintiff was one of the three who approached Titus. Titus was accompanied by his Police

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Service Dog, Oscar. Titus drew his firearm and gave repeated warnings to get down on the ground, show their hands, or he would release his dog. Eventually, two of the suspects got down on the ground in front of Titus, while Plaintiff continued to run toward the southeast corner of the lot. Titus released Oscar who engaged Plaintiff behind a large pine tree on the south side of a home. Once Titus confirmed that the two individuals in the front yard were cooperating in getting onto the ground, he proceeded around the tree to the area where Oscar had engaged Plaintiff. At that time, Titus was in a position to maintain a visual on all three suspects. Plaintiff was fighting with Oscar, and Titus repeatedly told him to stop doing so and he would release the dog. Once Plaintiff complied, Titus released Oscar from Plaintiff, who had sustained several injuries to his legs. The total time frame from the dog being deployed until being released from Plaintiff was under thirty seconds. An ambulance was called and cover officers began to arrive immediately thereafter. Eventually the fourth suspect was located by another K-9 officer. Plaintiff was taken to Denver Health Medical Center and treated for his injuries. All suspects were charged with interference pursuant to Denver Municipal Code 38-31 and the driver, Pacheco-Dominguez, was also charged with vehicular eluding. It was later determined that Plaintiff and the other passengers in the purple Neon were not involved in the felony menacing. In his criminal case, Plaintiff entered into a plea agreement with the prosecutor. III. STATEMENT OF UNDISPUTED FACTS

The following facts are established by the pleadings filed in this case and the discovery conducted. With regard to the facts set forth below pertaining to the seizure and arrest of

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Plaintiff on August 23, 2001, while Titus disputes some of Plaintiff's version of those facts, he accepts Plaintiff's version of those facts as undisputed for purposes of this Motion only. Although there are, of course, some other factual disputes between the parties, the following material, dispositive facts are undisputed: 1. On August 23, 2001, Titus received a dispatch of a female stating that a Hispanic

male, bald, with tattoos had held a gun to her husband's head. [See, deposition of Brett Titus appended hereto as Exhibit A at p. 40, line 24 ­ p. 41, line 13]. 2. Titus began to respond to the location of the dispatch and was able to arrive close

to that area in less than a couple of minutes. [See, Exhibit A at p. 42, lines 6 ­ 11]. 3. While in the area of the dispatch, Defendant noticed a purple Dodge Neon directly

in front of him heading westbound on Evans Avenue at a pretty decent rate of speed go through the intersection of Evans Avenue and Sheridan Boulevard. [See, Exhibit A at p. 42, lines 15 ­ 25]. 4. According to Plaintiff, who was inside the vehicle, the purple Neon sped off as

soon as they saw the police officer and was soon traveling 80 to 90 miles per hour. [See, deposition transcript of Gregory Joseph Gonzales appended hereto as Exhibit B at p. 76, lines 17 ­ 23; Exhibit B at p. 78, lines 14 ­ 15]. 5. The location of the felony menacing dispatch was one block east and four blocks

north of the intersection of Evans and Sheridan. [See, Exhibit A at p. 99, lines 19 ­ p. 100, line 4]. 6. The driver of the purple Neon was a Hispanic male with a closely-shaved head

(Pacheco-Dominguez), and as he passed in front of Titus, he looked right at Titus who then

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identified him as matching the description of the suspect in the felony menacing. [See, Exhibit A at p. 43, lines 1 ­ 4]3. 7. Titus made a u-turn on Sheridan to follow the purple Neon, and upon doing so,

the purple Neon picked-up speed. [See, Exhibit A at p. 46, line 11 ­ p. 47, line 3; Exhibit A at p. 48, lines 1 ­ 4]. 8. The purple Neon made a fast and wild turn westbound onto Warren Street off of

Sheridan and Pacheco-Dominguez extinguished his head lights as he wanted to outrun the police officer. [See, Exhibit B at p. 80, lines 12 ­ 18; Exhibit B at p. 80, line 25 ­ p. 81, line 6]. 9. Warren Street is a residential neighborhood with houses on each side and the

purple Neon was traveling at about 80 miles per hour through the neighborhood. [See, Exhibit B at p. 82, lines 17 ­ 20]. 10. Titus followed the purple Neon as it turned westbound and continued along at a

high rate of speed, running two stop signs, and hitting dips in the road with such force that sparks were shooting out from underneath the vehicle and causing the vehicle to go airborne. [See, Exhibit A at p. 53, lines 6 ­ 16; Exhibit B at p. 84, lines 6 ­ 18; Exhibit B at p. 87, lines 7 ­ 15]. 11. Titus lost sight of the purple Neon, but upon stopping at an intersection, saw the

vehicle's brake lights at a dead-end. [See, Exhibit A at p. 55, lines 6 ­ 15].

Pacheco-Dominguez is Hispanic and testified in his deposition that his hair at the time of the incident was very closely shaved and was a "buzz cut." [See, deposition transcript of Jeffrey Pacheco-Dominguez appended hereto as Exhibit C at p. 42, lines 18 ­ 21].

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12.

The purple Neon came to a stop and all four occupants bailed out with one

occupant jumping over a fence. [See, Exhibit A at p. 55, line 25 ­ p. 56, line 4; Exhibit A at p. 57, line 24 ­ p. 58, line 5; Exhibit A at p. 67, lines 3 ­ 6]. 13. At that time, Titus felt that he had reasonable suspicion to detain all occupants in

the vehicle to investigate whether they were involved in the felony menacing. [See, Exhibit A at p. 103, line 5 ­ p. 104, line 8]. 14. Titus exited his vehicle, drew and pointed his firearm, and made numerous

commands to the effect of "Stop! Show me your hands! Get down on the ground! Don't move! I'm going to send the dog!" [See, Exhibit A at p. 63, line 16 ­ p. 64, line 5]. 15. Plaintiff heard Titus say something like "Get down on the ground. Show your

hands. Freeze." [See, Exhibit B at p. 106, lines 21 ­ 25]. 16. Plaintiff also heard Titus say something similar to "Stop or I will release the dog."

[See, Exhibit B at p. 108, lines 22 ­ 25; Exhibit B at p. 186, lines 2 ­ 10]. 17. Plaintiff knew that Titus was telling him to surrender, but he ignored the

commands to stop running and show his hands and instead jogged away from Titus. [See, Exhibit B at p. 107, line 21 ­ p. 108, line 4; Exhibit B at p. 110, lines 22 ­ 25; Exhibit B at p. 111, lines 1 ­ 4]. 18. Pacheco-Dominguez heard Titus order them to show their hands and get to the

ground, but he did not comply with those orders. [See, Exhibit C at p. 65, lines 4 ­ 10].4

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The fourth occupant of the vehicle, Josh Santistevan, could not be located and was not deposed during discovery.

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19.

Pacheco-Dominguez heard Titus warn them two times that he had a dog with him

and would release the dog if they did not stop. [See, Exhibit C at p. 66, lines 3 ­ 8; Exhibit C at p. 66, lines 15 ­ 20]. 20. Paul Amparan heard Titus order them to "Stop!" but he was too drunk to

remember all that Titus said to them. [See, deposition transcript of Paul Herman Amparan appended hereto as Exhibit D at p. 40, lines 22 ­ 24; Exhibit D at p. 43, lines 10 ­ 21]. 21. Plaintiff went toward the southwest in the shadows between a large tree and the

corner of a nearby house. [See, Exhibit A at p. 68, lines 16 ­ 19; Exhibit B at p. 109, line 9 ­ p. 110, line 12]. 22. Titus considered Plaintiff to be a threat to his safety because Plaintiff was

flanking him and had a position of cover behind the tree. [See, Exhibit A at p. 107, lines 7 ­ 18]. 23. Due to Plaintiff disobeying his verbal commands, Titus felt that at a minimum, he

had sufficient probable cause to arrest Plaintiff for Interference with Police Authority. [See, Exhibit A at p. 150, lines 1 ­ 24]. 24. Titus also felt that Plaintiff was interfering with Titus' ability to arrest the other

suspects since he was hiding behind the tree and disobeying verbal commands. [See, Exhibit A at p. 150, line 25 ­ p. 151, line 10]. 25. Titus released the dog at the point when all three individuals (including Plaintiff)

were coming toward him which resulted in him losing his position of cover. [See, Exhibit A at p. 69, lines 17 ­ 19].

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26.

Once the two individuals who stopped running were on the ground, Titus moved

around the south end of the tree so that he could see all three suspects at the same time. [See, Exhibit A at p. 80, lines 7 ­ 13]. 27. Although Oscar was not always in sight of Titus, Titus could have easily called-

off Oscar through the use of voice commands. [See, Exhibit A at p. 141, lines 14 ­ 20]. 28. The first time that Titus saw Oscar engaging Plaintiff, Plaintiff was sitting up and

had Oscar by the head while Oscar was biting one of his legs. [See, Exhibit A at p. 83, lines 10 ­ 25]. 29. Plaintiff was trying to push Oscar off of him. [See, Exhibit B at p. 112, lines 16 ­

18; Exhibit B at p. 113, lines 19 ­ 21]. 30. Titus yelled commands to Plaintiff "to let go of his head and I'll release the dog!"

but Plaintiff ignored those commands. [See, Exhibit A at p. 85, lines 8 ­ 15; Exhibit B at p. 113, lines 7 ­ 10; Exhibit B at p. 115, lines 1 ­ 9; Exhibit C at p. 69, lines 18 ­ 21; Exhibit D at p. 49, lines 8 ­ 10]. 31. Plaintiff eventually complied with these commands, and Titus gave the command

to Oscar to release his bite. [See, Exhibit A at p. 85, lines 16 ­ 23]. 32. Plaintiff was subsequently charged with Interference with Police Authority, and

during his criminal case, reached a plea agreement with the prosecuting attorney. [See, Exhibit B at p. 187, line 22 ­ p. 188, line 8]. IV. STANDARD OF REVIEW

Summary judgment should be granted where, taking the facts in the light most favorable to the non-moving party, there is no genuine issue of material fact, and the moving party is

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entitled to judgment as a matter of law. Deepwater Investments, Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110-11 (10th Cir. 1991). Upon a motion for summary judgment, the moving party bears the burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d. 265 (1986). The burden then shifts to the non-moving party to produce evidence creating a genuine issue of material fact to be resolved at trial. Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993). To avoid summary judgment, the non-moving party must present more than "a mere scintilla of evidence." Vitkus, 11 F.3d at 1539. There must be enough evidence to allow a reasonable jury to find for the non-moving party. Id. The non-movant "may not rest upon mere allegations or denials" of the pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d. 202 (1986), but must "set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc., v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). V. A. ARGUMENT

TITUS IS ENTITLED TO QUALIFIED IMMUNITY ON PLAINTIFF'S CLAIMS OF FALSE ARREST AND EXCESSIVE FORCE. 1. Concept of Qualified Immunity and Plaintiff's Burden.

The qualified immunity doctrine shields governmental officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Medina v. Cram, 252 F.3d 1124, 1127 (10th Cir. 2001) (citing

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Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). Qualified immunity "not only shields a defendant from liability, but is also intended to protect the defendant from the burdens associated with trial." Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 645 (10th Cir. 1988). "These burdens include distraction of officials from their governmental responsibilities, the inhibition of discretionary decision making, the deterrence of able people from public service, and the disruptive effects of discovery on governmental operations." Hannula v. City of Lakewood, 907 F.2d 129, 130 (10th Cir. 1990). "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." Migneault v. Peck, 158 F.3d 1131, 1139 (10th Cir. 1998) (citing Clanton v. Cooper, 129 F.3d 1147, 1153 (10th Cir. 1997)). "If the plaintiff fails to carry either part of [her] two-part burden, the defendant is entitled to qualified immunity." Migneault, 158 F.3d at 1140 (citing Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995)). In order to overcome the defense of qualified immunity, Plaintiff must make a particularized showing that the law is sufficiently clear that the particular Defendant would have known that his conduct was unconstitutional. See, Patrick v. Miller, 953 F.2d 1240 (10th Cir. 1992). Although the standard does not require an exact or precise factual correlation between existing law and the circumstances of the case at bar, it does require that the law be reasonably well-developed to inform the state official that his conduct would violate the law. Hilliard v. City and County of Denver, 930 F.2d 1516, 1518 (10th Cir. 1991); see also Brosseau v. Haugen, 543 U.S. 194 (2004). In order for the law to be sufficiently clear, "there must be a Supreme

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Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Medina v. City & County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992). In the face of a summary judgment motion, a plaintiff must produce evidence that would allow a trier of fact to find that no reasonable person in the defendant's position would have thought the facts justified the defendant's acts. Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993). "The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct." Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2158, 150 L.Ed.2d 272 (2001). "If the officer's mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense." Saucier, 121 S.Ct. at 2158; see also, Holland ex rel. Overdorff v. Harrington, 268 F.3d 1178, 1196 (10th Cir. 2001). For the reasons set forth below, Plaintiff cannot meet either part of his two-part burden with regard to her § 1983 false arrest and excessive force claims against Titus. 2. Fourth Amendment: Unreasonable Seizure Claim.

Plaintiff alleges in his Third Amended Complaint that his seizure was unreasonable, and that his rights were violated as Titus apparently did not have probable cause for his detention. [See, Third Amended Complaint at ¶ 44.a.]. While Plaintiff's Third Amended Complaint is somewhat unclear as to the nature of his unreasonable seizure claim, discovery in this case has revealed that Titus initially intended to seize Plaintiff in order to conduct an investigatory stop, and then subsequently seized Plaintiff as he reasonably believed that probable cause existed for an arrest. The appropriateness of Titus' actions under both scenarios will be addressed below. a. Reasonable suspicion for investigatory stop.

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A police officer making an investigatory stop must have reasonable suspicion to believe that criminal activity "may be afoot." United States v. Arvizu, 534 U.S. 266, 273 (2002) (citing United States v. Sokolow, 490 U.S. 1, 7, 104 L.Ed.2d 1, 109 S.Ct. 1581 (1989)). Based upon the undisputed facts, Titus clearly had reasonable suspicion to stop and detain Plaintiff. i. No constitutional violation.

The following undisputed facts establish the constitutionality of Titus' decision to conduct an investigatory stop: (1) Titus responded to the intersection of Evans and Sheridan within a couple of minutes, a location which was within 5 blocks of the location of the felony menacing dispatch [see, section III of this brief at ¶¶ 1, 2, and 5]; (2) Titus noticed an individual matching the description of the felony menacing suspect drive through the intersection of Evans and Sheridan at a pretty decent rate of speed [see, section III of this brief at ¶¶ 3 and 6]; (3) Titus watched the purple Neon speed away from his location, and according to Plaintiff, the vehicle reached speeds of around 80 to 90 miles per hour while on Sheridan [see, section III of this brief at ¶¶ 4 and 7]; (4) Titus witnessed the purple Neon make a fast and wild turn westbound onto Warren Street off of Sheridan and Pacheco-Dominguez extinguish his head lights [see, section III of this brief at ¶ 8]; (5) the purple Neon traveled in a residential neighborhood with houses on each side and at about 80 miles per hour [see, section III of this brief at ¶ 9]; (6) the purple Neon continued along at a high rate of speed, running two stop signs at a high rate of speed, and hitting dips in the road with such force that sparks were shooting out from underneath the vehicle and causing the vehicle to go airborne [see, section III of this brief at ¶ 10]; and (7) when the purple Neon came to a stop, all four occupants bailed out with one occupant jumping over a fence [see, section III of this brief at ¶ 11].

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At a minimum, the undisputed actions of the purple Neon provided Titus with reasonable suspicion to conduct an investigatory stop for numerous traffic violations. However, it was further reasonable for Titus to believe that reasonable suspicion existed to conduct a stop to investigate the felony menacing due to the matching description of the driver of the purple Neon as well as due to the extreme actions the purple Neon took to elude him. Accordingly, if Plaintiff is claiming that reasonable suspicion did not exist for the initial stop, such claim should be dismissed as a matter of law. ii. No clearly established law.

The standard of reasonable suspicion for making an investigatory stop is certainly clearly established. Based upon the totality of what Titus perceived during the course of his contact with the purple Neon, it was reasonable for him to believe that the stop of the vehicle was constitutionally permissible. Plaintiff will be unable to come up with any case law to the contrary. b. Probable cause for arrest.

An action for false arrest/unlawful seizure in the context of 42 U.S.C. § 1983 is governed by Fourth Amendment standards premised upon the concept of probable cause. Taylor v. Meacham, 82 F.3d 1556, 1561 (10th Cir. 1996). Thus, any Fourth Amendment seizure relating to an arrest is constitutionally lawful if the officer making the arrest/seizure has probable cause. Taylor, 82 F.3d at 1561. "Whether probable cause exists depends upon the reasonable

conclusion to be drawn from the facts known to the arresting officer at the time of the arrest." Devenpeck v. Alford, 125 S. Ct. 588 (2004) (citing Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d.769 (2003)). The United States Supreme Court has held that "[i]f an

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officer has probable cause to believe that an individual has committed a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." Atwater v. City of Lago Vista, 532 U.S. 318, 121 S. Ct. 1536, 1557, 149 L. Ed. 2d 549 (2001). An arresting officer's state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause. See, Whren v. United States, 517 U.S. 806, 812 ­ 813 (1996). "That is to say, [the officer's] subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause." Devenpeck, 125 S.Ct. 588. "Those are lawfully arrested whom the facts known to the arresting officers give probable cause to arrest." Id. Under the qualified immunity standard, an officer effecting a warrantless arrest/seizure is "'entitled to immunity if a reasonable officer could have believed that probable cause existed to arrest' the plaintiff." Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir.1995). "Law enforcement officials who mistakenly conclude that probable cause exists are still entitled to qualified immunity if their conclusion is reasonable." Romero, 45 F.3d at 1476. When applying the undisputed facts of present case to the law, it is clear that Titus had probable cause to place Plaintiff under arrest. i. No constitutional violation.

Plaintiff was arrested for Interference with Police Authority. [See, section III of this brief at ¶ 32]. Section 38-31 of the Denver Municipal Code, Interference with Police Authority, reads as follows: (a) It shall be unlawful for any person, in any way, to interfere with or hinder any police officer ... while such officer ... is discharging or apparently discharging their duties ...

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(c) It shall be unlawful for any person to fail to obey a lawful order of a police officer if such failure interferes with or hinders such police officer in the discharge of his official duties ... The following undisputed facts establish the appropriateness of the arrest: (1) all

undisputed facts set forth in section IV.A.2.a.i. of this brief pertaining to the reasonable suspicion for the investigatory stop; (2) Titus' commands to "Stop! Show me your hands! Get down on the ground! Don't move!" were ignored by Plaintiff [see, section III of this brief at ¶¶ 14, 15, and 16]; (2) Plaintiff knew that Titus was telling him to surrender, but he ignored the commands and instead jogged away from Titus [see, section III of this brief at ¶ 17]; (3) Plaintiff jogged toward the southwest in the shadows between a large tree and the corner of a nearby house [see, section III of this brief at ¶ 21; (4) Titus considered Plaintiff to be a threat to his safety because Plaintiff was flanking him and had a position of cover behind the tree [see, section III of this brief at ¶ 22]; and (5) Titus felt that at a minimum, he had sufficient probable cause to arrest Plaintiff for Interference with Police Authority due to Plaintiff's failure to obey his commands as well as the fact that Plaintiff was interfering with his ability to arrest the other suspects [see, section III of this brief at ¶¶ 23 and 24]. It cannot be disputed that Plaintiff disobeyed Titus' lawful orders and in doing so interfered with and hindered Titus' ability to discharge his duties. Accordingly, Titus' decision to arrest Plaintiff was supported by probable cause and the false arrest claim under § 1983 should be dismissed as a matter of law. ii. No clearly established law.

The standard of probable cause for making an arrest is certainly clearly established. Based upon the totality of what Titus perceived during the course of his contact with the purple

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Neon as well as after the stop, it was reasonable for him to believe that the arrest was constitutionally permissible. Plaintiff will be unable to come up with any case law to the contrary. c. Plaintiff's claim is barred by Heck v. Humphrey.

Where a 42 U.S.C. § 1983 civil rights claim for damages necessarily questions the findings in state court criminal proceedings, the Plaintiff must first prevail in the state court criminal matter before a § 1983 claim for damages may be raised. See, Heck v. Humphrey, 512 U.S. 477, 480, n. 2, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994). Here, Plaintiff alleges an unreasonable seizure against Titus. This claim for relief

requires Plaintiff to call into question findings from the criminal case in which he did not prevail by showing a lack of probable cause. See, United States v. Smith, 797 F.2d 836, 840 (10th Cir. 1996); Taylor v. Meachum, 82 F.3d 1556, 1561 (10th Cir. 1996). It is undisputed that Plaintiff entered into a plea agreement in his criminal case, thereby pleading guilty and establishing probable cause for his arrest. [See, section III of this brief at ¶ 32]. Because Plaintiff did not prevail in his criminal case but in fact pled guilty to a criminal charge, Plaintiff should be collaterally estopped from proceeding with his false arrest claim premised upon 42 U.S.C. § 1983. 3. Fourth Amendment: Excessive Force Claim. a. No constitutional violation.

Plaintiff has also alleged that Defendant's use of Oscar was in violation of his rights under the Fourth Amendment as such constituted excessive force. This claim must be analyzed under the reasonableness standard articulated in Graham v. Connor, 490 U.S. 386, 109 S.Ct.

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1865, 104 L.Ed.2d 443 (1989). following:

In Graham, the United States Supreme Court stated the

The reasonableness of an officer's conduct must be assessed "from the perspective of a reasonable officer on the scene," recognizing the fact that the officer may be "forced to make split-second judgments" under stressful and dangerous conditions.... The Fourth Amendment standard requires inquiry into the factual circumstances of every case; relevant factors include the crime's severity, the potential threat posed by the suspect to the officer's and others' safety, and the suspect's attempts to resist or evade arrest.... Graham, 490 U.S. at 396 ­ 97. Applying the totality of these factors to the present case, it is clear that Plaintiff cannot establish his excessive force claim against Titus. Initially, it was reasonable for Titus to believe that the crime he was investigating was severe and that he was dealing with the suspects involved in the felony menacing. Not only did Pacheco-Dominguez very closely match the description of the suspect, but the actions of the purple Neon once making contact with Titus at the intersection evidenced a degree of recklessness commensurate with someone who would point a gun at someone else's head. Next, both Plaintiff and the other occupants of the vehicle posed a significant threat to Titus as he was outnumbered, his verbal commands were ignored, and Plaintiff ran to a position where he could not be seen and was flanking Titus. Based upon the felony menacing dispatch and the conduct of Plaintiff and the others prior to Oscar being deployed, it was reasonable for Titus to assume that any one of the occupants could be armed and dangerous. Finally, it is undisputed that all occupants were attempting to flee the scene and evade arrest, and that Plaintiff ignored Titus' commands and jogged to a position where he could not be seen.

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Other key aspects which establish the reasonableness of the use of the dog were Titus' warnings before releasing the dog as well as his commands to Plaintiff during the engagement to stop fighting with the dog and the dog would be released. [See, section III of this brief at ¶¶ 16, 19, and 30]. In fact, the dog was released as soon as Plaintiff complied with these commands. [See, section III of this brief at ¶ 31]. Applying these facts to the factors in Graham, Plaintiff cannot establish that the use of Oscar under this highly tense, dangerous, and rapidly evolving situation constituted excessive force. A recent Tenth Circuit case is highly analogous to the present case and illustrates that Titus' use of the police dog was reasonable and appropriate. In Marquez v. the City of

Albuquerque, 399 F.3d 1216 (10th Cir. 2005), the Tenth Circuit affirmed a jury verdict in favor of the municipality and officer finding no excessive force for the use of a police dog following a high-speed chase. The facts of Marquez are highly similar to the present case and are as follows: (1) police responded to a report of a residential burglary; (2) the witnesses provided a physical description of the suspects as well as the vehicle they were driving; (3) while this was occurring, the plaintiff was walking home and was offered a ride by a female friend; (4) the police attempted to pull-over the vehicle for a non-functional license plate lamp; (5) the driver refused to stop and a high- speed chase ensued; (6) officers learned that the vehicle they were pursuing was involved in a burglary earlier that evening; (7) the female driver eventually crashed the vehicle and the plaintiff exited; (8) the officer gave a command to stop, but the plaintiff ignored the command and attempted to flee the scene; and (9) the officer ordered his police dog to apprehend and it did causing injury to the plaintiff's leg. Marquez, 399 F.3d at 1219.

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In assessing whether the use of the dog constituted excessive force, the court relied upon four categories of evidence. Initially, the court determined that it was reasonable for the officer to believe that Plaintiff was a potentially armed robbery suspect since he and his companion matched the descriptions of the robbery suspects heard over the dispatch. Id. at 1221. Second, the high-speed chase immediately preceding the arrest indicated that the plaintiff, who was reasonably believed to be the burglary accomplice to the driver, was a danger to the public and was evading arrest. Id. Factors considered here by the court under this category were the recklessness of the chase which included excessive speeds, the running of several stop signs, and high-speed weaving in a residential neighborhood. Id. The third consideration was that the plaintiff had attempted to evade arrest after the chase had ended by running away and trying to climb a fence. Id. The fourth consideration was the fact that the officer was required to secure two felony suspects. Id. Applying these same four categories to the present case, it is clear that Titus' use of the police dog similarly does not constitute excessive force. It was reasonable for Titus to believe that some or all of the occupants matched the description of the felony menacing suspect, especially when taking into account the time and distance involved from the felony menacing incident to the point that Titus first made contact with the purple Neon. The actions of the purple Neon upon seeing Titus and the high-speed chase which followed reasonably led Titus to believe that these individuals were involved in the felony menacing and were a danger to the public and evading arrest. Thirdly, Plaintiff had bailed out of the vehicle and was attempting to evade arrest by running. And finally, Titus was faced with the daunting proposition of securing three felony suspects, as well as a fourth suspect who was likely in the immediate area. The clearly

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established law in this circuit, while not in existence at the time of the subject incident, makes it clear that Titus' use of Oscar was reasonable and appropriate. b. No clearly established law.

At the time of the subject incident, there was relatively little case law to guide police officers with regard to the deployment of police dogs. However, that legal authority which did exist would not have put Titus on notice that his use of Oscar was unconstitutional. To the contrary, the clearly established law in the majority of federal circuits at the time confirms that Titus' use of the police dog was reasonable and appropriate under the circumstances. As of August of 2001, there was no published United States Supreme Court or Tenth Circuit cases dealing with excessive force and the use of a police dog. There did exist an unpublished opinion, Burrows v. City of Tulsa, 1994 U.S. App. LEXIS 12662 * 11 (10th Cir. 1994), which held that a jury could have found the police officer's use of a police dog unconstitutional since he failed to give a warning before releasing the dog and put the dog over a fence and let him go free while the officer remained on the other side rendering the officer unable to call-off the dog via voice command. Setting aside the fact that this is an unpublished opinion, it is undisputed here that Titus did provide warnings prior to releasing the dog and, in addition, could have used voice commands to call-off Oscar at any point. [See, section III of this brief at ¶¶ 16, 19, and 27]. Moreover, the majority of cases from those federal circuits which had addressed the issue would not have put Titus on notice that his use of Oscar was constitutionally excessive. The Fourth Circuit had held that a critical determination in whether the use of the police dog was objectively reasonable was dependent upon whether the officer had provided a verbal warning in

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advance. See, Vathekan v. Prince George's County, 154 F.3d 173 (4th Cir. 1998) (failure to give a warning before releasing a police dog is objectively unreasonable in an excessive force context) (citing Kopf v. Wing, 942 F.2d 265 (4th Cir. 1991). Again, here, Titus provided

warnings prior to releasing the dog. [See, section III of this brief at ¶¶ 16 and 19]. It is also critical to note that Titus provided commands to Plaintiff to stop fighting with the dog and he would release Oscar, and did so once Plaintiff complied with those commands. [See, section III of this brief at ¶¶ 30 and 31]. In Matthews v. Jones, 35 F.3d 1046 (6th Cir. 1994), the Sixth Circuit had affirmed a district court's granting of summary judgment in favor of a police officer finding the use of the police dog to be constitutional. In that case, the officer released the dog not knowing the extent of the crimes the plaintiff had committed, whether he was armed, or why he fled his vehicle. Matthews, 35 F.3d at 1048. The officer provided a verbal warning prior to deployment, and subsequently ordered the dog to engage when plaintiff disobeyed his command not to move. Id. In reaching its decision, the court concluded that the use of the dog was reasonable since the officer had legal grounds to stop the plaintiff, the plaintiff fled before being detained in an effort to evade the police, the area in which he fled provided a strategic advantage in which the plaintiff could ambush the officer, and the plaintiff's extreme behavior provided cause for the officer to believe that the plaintiff was involved in more nefarious behavior than simple traffic violations. Id. at 1051. The clearly established case law from these circuits makes it clear that Titus could not have been on notice that his use of Oscar under the circumstances before him was

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unconstitutional. To the contrary, these cases in fact establish that Titus' use of the police dog was found to be constitutionally permissible according to the clearly established law. 4. Sixth Amendment Claim.

Within his Third Amended Complaint and Jury Demand, Plaintiff alleges without any specificity or clarification that his Sixth Amendment rights have been violated by Titus. The Sixth Amendment to the United States Constitution provides the right to a speedy, public, and impartial trial in criminal prosecutions, as well as guarantees the right to have the assistance of counsel. See, U.S. CONST. Amend. VI. At no time does Plaintiff allege within his Third Amended Complaint and Jury Demand that any of these rights have been violated by Titus, nor would the record support any such allegation. Plaintiff further will be unable to point to any clearly established law which would have put Titus on notice that his actions would violate Plaintiff's Sixth Amendment rights. Accordingly, Titus is entitled to qualified and respectfully requests that Plaintiff's claim pursuant to 42 U.S.C. § 1983 for an alleged violation of his Sixth Amendment rights be dismissed as a matter of law. 5. Eighth Amendment Claim.

Claims brought under 42 U.S.C. § 1983 for an alleged violation of the Eighth Amendment apply only to convicted inmates. Myers v. Oklahoma County Bd. of County

Comm'rs., 151 F.3d 1313, 1320 (10th Cir. 1998). In this case, the record is devoid of any evidence that Plaintiff was a convicted inmate on August 23, 2001. Therefore, to the extent that Plaintiff is alleging an Eighth Amendment claim against Titus, Plaintiff cannot establish any constitutional violation by Titus under the Eighth Amendment. Plaintiff further will be unable to

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point to any clearly established law which would have put Titus on notice that his actions would violate Plaintiff's Eighth Amendment rights. Accordingly, Titus is entitled to qualified and respectfully requests that Plaintiff's claim pursuant to 42 U.S.C. § 1983 for an alleged violation of his Eighth Amendment rights be dismissed as a matter of law. VI. CONCLUSION

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

Respectfully submitted,

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

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 4th day of November, 2005, I electronically filed a true and correct copy of the above and foregoing DEFENDANT'S MEMORANDUM BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Brian DeBauche, Esq. Brian DeBauche & Associates, L.L.C. 401 Kalamath Street Denver, CO 80204 Thomas Bigler Assistant City Attorney Office of the City Attorney 201 W. Colfax Ave., Dept. 1108 Denver, CO 80202

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

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