Erbacher v. City of Fort Collins et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 1:23-cv-01341-CNS-NRN
CODY ERBACHER,
Plaintiff,
v.
CITY OF FORT COLLINS and
JASON HAFERMAN,
Defendants.
ORDER
This matter comes before the Court on Defendants City of Fort Collins, Sergeant
Allen Heaton, and Sergeant Jason Bogosian’s Motion to Dismiss Plaintiff’s Amended
Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) and Request for Qualified Immunity. ECF
No. 40. Mr. Erbacher voluntarily dismissed Sergeant Heaton and Sergeant Bogosian from
the case as named defendants sued in their individual capacity, therefore the City is the
only remaining defendant on this motion. ECF Nos. 50, 51. For the following reasons, the
motion is DENIED.1
1 The Court recently ruled on a motion to dismiss in a highly similar case involving the same defendants.
Much of the Court’s analysis here is identical to its order in that case. Cunningham v. City of Fort Collins et
al, 1:23-cv-01342-CNS-SBP (pending).
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I. BACKGROUND2
A. Mr. Erbacher’s DUI arrest
On June 11, 2021, Plaintiff Cody Erbacher was pulled over by Defendant Jason
Haferman—then a DUI Officer with the Fort Collins Police Services (FCPS)—who claimed
that Mr. Erbacher’s truck had accelerated too quickly. ECF No. 33, ¶ 51. Officer Haferman
then questioned Mr. Erbacher about whether he had had any alcohol or drugs during the
day, and Mr. Erbacher admitted that he had had one beer several hours earlier in the day.
Officer Haferman then asked Mr. Erbacher to perform roadside tests to prove he was safe
to drive. Id., ¶¶ 52–55.
Mr. Erbacher explained to Officer Haferman that he had multiple TBIs and a back
injury that impact his balance. Id., ¶ 55. Officer Haferman did not include information about
Mr. Erbacher’s TBIs in the arrest report; he did, however, include “multiple false
statements and exaggerations of impairment indicators.” Id., ¶¶ 56–57. Officer Haferman
then failed to administer the roadside tests in the standardized manner in which he was
trained. Id., ¶ 58. Officer Haferman also failed to activate his Body Worn Camera (BWC).
Id., ¶ 50. However, there was another officer accompanying Officer Haferman whose
BWC was activated during Mr. Erbacher’s roadside tests. Id., ¶¶ 59–60. The BWC footage
from the covering officer shows that Mr. Erbacher performed the tests without any
indication of impairment. Id.
2 The following facts are drawn from Mr. Erbacher’s First Amended Complaint and Jury Demand. ECF No.
33. For purposes of this motion, the Court accepts as true, and views in the light most favorable to Mr.
Erbacher, all factual allegations contained in the complaint. See Smith v. United States, 561 F.3d 1090,
1098 (10th Cir. 2009).
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Officer Haferman then arrested Mr. Erbacher and told him he needed to perform
either a blood test or a breath test. Id., ¶ 61. Mr. Erbacher chose a breath test, but Officer
Haferman then asked him about medications he took and insisted that Mr. Erbacher could
not do a breath test because he was taking antibiotics for strep throat. Id., ¶¶ 62–64.
Officer Haferman transported Mr. Erbacher to a blood draw and then to jail, where Mr.
Erbacher spent the night. Id., ¶ 67.
In the following weeks and months, Mr. Erbacher suffered negative impacts from
the DUI arrest. He had to submit to regular drug and alcohol testing to monitor his sobriety;
he had to take loans from friends and family to pay for that monitoring and to hire defense
counsel; he started attending Level II alcohol education classes, at the advice of his
attorney; his vehicle insurance rates increased; and he was unable to keep his job working
as a security guard because of the time required by his court appearance, alcohol classes,
and sobriety monitoring. Id., ¶¶ 71–75. He was unsuccessful in applying for new jobs
because the pending DUI charge appeared in his background checks. Id., ¶ 76.
Five months after Mr. Erbacher’s DUI arrest, the blood results came back negative
for alcohol and all impairing drugs. Id., ¶ 79. The district attorney then dismissed Mr.
Erbacher’s DUI charge. Id., ¶ 80.
Beginning in April 2022, as detailed below, Officer Haferman’s pattern of wrongful
DUI arrests became the subject of significant media scrutiny. See, e.g., id., ¶¶ 91–116.
After 	a 	months-long 	internal 	investigation, 	FCPS 	announced 	publicly 	that 	Officer
Haferman had resigned from the force in December 2022. Id., ¶ 146. On May 3, 2023,
Mr. Erbacher filed suit in Larimer County District Court; pertinent here, Mr. Erbacher’s
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complaint included a § 1983 claim against the City of Fort Collins, alleging Monell liability
for failure to train and supervise FCPS personnel, including Officer Haferman, in lawful
DUI arrest protocols. ECF No. 5, ¶¶ 181–89. The action was removed to federal court on
May 26, 2023. ECF No. 1.
B. Officer Haferman’s pattern of wrongful DUI arrests
Officer Haferman began working for FCPS as a patrol officer in 2017. ECF No. 33,
¶ 13. As part of his FCPS onboarding, Officer Haferman received training on the proper
administration of Standardized Field Sobriety Tests (SFSTs). Id., ¶ 23. Once on patrol,
Officer Haferman accumulated such a high volume of DUI arrests that, in 2020, FCPS
promoted him to DUI Officer—a role in which the officer’s exclusive focus is performing
traffic stops and investigating DUI-related offenses. Id., ¶¶ 14, 16. Just six months into
his DUI Officer tenure, Officer Haferman’s DUI arrest numbers were significantly higher
than those of any other DUI Officer to precede him in FCPS’s history. Id., ¶ 39.
At least as early as 2021, however, Officer Haferman was performing DUI stops
and administering SFSTs to subjects in a manner inconsistent with his training, and in a
manner designed to create a false impression of the subject’s intoxication when described
in his arrest reports. Id., ¶ 23. More broadly, the defects in Officer Haferman’s DUI
investigations and arrests commonly included:
• 	Interpreting normal, innocuous human behaviors as “clues of
impairment” when, in fact, his training instructed the opposite;
• 	Relying on certain made-up clues of impairment not taught in
any SFST training (and claiming that those non-clues were
simply the product of “advanced techniques”);
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• 	Administering the Horizontal Gaze Nystagmus (HGN) test to
subjects incorrectly, and then citing his observations during
botched HGN tests to support his arrest decisions;
• 	Writing 	arrest 	reports 	containing 	exaggerations 	and
falsehoods regarding clues of impairment he had observed,
which were clearly belied by his own body-worn camera
footage; and
• 	Muting and deactivating his body-worn camera during citizen
contacts and arrests, in violation of both FCPS policy and
Colorado law.
Id., ¶¶ 24–26, 30. Many of these defects were readily observable on Officer Haferman’s
body-worn camera recordings of DUI stops. See id., ¶ 27. However, no one at FCPS ever
watched his body-worn camera footage or otherwise reviewed his performance on DUI
stops to ensure that those stops were conducted according to FCPS training and policy.
See, e.g., id., ¶¶ 27–28, 34–35, 38, 41–42.
Mr. Erbacher’s complaint details 15 DUI arrests made between January 2021 and
April 2022 (aside from his own) in which (i) Officer Haferman used DUI investigation
techniques that failed to conform with his training, (ii) the subjects’ blood or breath testing
came back “negative” or “presumptively unimpairing” for alcohol and drugs, and (iii)
dismissals or acquittals of the subjects’ DUI charges resulted. Id., ¶¶ 31 (C.B.), 37 (Harley
Padilla), 43 (G.C.), 44 (R.B.), 83 (Carl Sever), 84 (Jesse Cunningham), 85 (B.C.), 86
(K.S.), 87 (D.A.), 88 (G.E.), 89 (S.J.), 90 (Harris Elias), 91 (L.M.), 92 (Carly Zimmerman),
93 (Derrick Groves). Although FCPS maintained publicly that it “always conduct[s] an
internal review of any DUI arrest made by one of its officers that has chemical results
come back negative for drugs/alcohol,” see id., ¶¶ 33, 81, 109, no such review appears
to have been conducted by FCPS in any of the above-listed cases until well after Officer
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Haferman’s conduct became the subject of media attention. Meanwhile, by the end of
2021, FCPS (as an entire agency) had made 504 DUI arrests; of those, Officer Haferman
was involved in 191, or nearly 40%. Id., ¶ 95.
In April 2022, Fox 31 Denver (KDVR) received a tip about Officer Haferman, and
reporters at multiple outlets began investigating his pattern of wrongful DUI arrests. See
id., ¶¶ 98, 107. Around that time, Officer Haferman also became the subject of an internal
affairs 	investigation 	at 	FCPS. 	See 	id., 	¶ 135. 	During 	an 	interview 	with 	FCPS’s
Professional Standards Unit, Officer Haferman stated that throughout his tenure as DUI
Officer, he “believed he was doing good work,” and “didn’t have any reason to believe he
wasn’t doing good work based on no supervisors or experts in the field saying otherwise.”
Id., ¶ 139.
In 	September 	2022, 	the 	Larimer 	County 	DA 	informed 	FCPS 	that 	Officer
Haferman’s behavior “has demonstrated a significant disregard for the integrity of his
investigations.” See id., ¶ 144. The next day, FCPS placed Officer Haferman on
administrative leave. Id., ¶ 145. In December 2022, FCPS announced that Officer
Haferman had resigned, and explained that FCPS’s internal review had revealed that
Officer Haferman had been making false statements in his arrest reports, performing
SFSTs incorrectly, and arresting subjects on DUI-related offenses without probable
cause. Id., ¶ 146.
II. STANDARD OF REVIEW
Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss,
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a complaint must allege facts, accepted as true and interpreted in the light most favorable
to the plaintiff, to state a claim to relief that is plausible on its face. See, e.g., Mayfield v.
Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016). A plausible claim is one that allows the
court to “draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). If a complaint’s allegations are “so
general that they encompass a wide swath of conduct, much of it innocent,” then a plaintiff
has failed to “nudge [the] claims across the line from conceivable to plausible.” Robbins
v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quotation omitted). In assessing a
claim’s plausibility, “legal conclusions” contained in the complaint are not entitled to the
assumption of truth. See Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214
(10th Cir. 2011). The standard, however, remains a liberal pleading standard, and “a well-
pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those
facts is improbable, and that a recovery is very remote and unlikely.” Dias v. City & Cnty.
of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quotation omitted).
III. DISCUSSION
The Court has carefully considered Mr. Erbacher’s complaint, the parties’ briefing
in connection with the City’s motion to dismiss, the entire case file, and the relevant legal
authority. The issues have been briefed thoroughly, oral argument would not materially
assist in the determination of this matter, and the Court accordingly declines in its
discretion to hold a hearing. See D.C.COLO.LCivR 7.1(h).
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Below, the Court sets forth the applicable law with respect to Monell claims brought
pursuant to § 1983 and analyzes Mr. Erbacher’s Monell claim, leading the Court to deny
the City’s motion to dismiss.
A. Municipal liability claims under Monell
A municipality faces § 1983 liability under Monell v. Department of Social Services
of City of New York, 436 U.S. 658 (1978), where (i) an alleged official policy or custom (ii)
causes a plaintiff’s constitutional injury, and (iii) the policy or custom was “enacted or
maintained with deliberate indifference” to an almost-inevitable constitutional injury. See
Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 769 (10th Cir. 2013)
(citation omitted).
A plaintiff satisfies the “official policy or custom” element by plausibly alleging that
the municipality maintains one of the following:
• 	A formal regulation or policy statement;
• 	An informal custom amounting to “a widespread practice that,
although not authorized by written law or express municipal
policy, is so permanent and well settled as to constitute a
custom or usage with the force of law”;
• 	Decisions of employees with final policymaking authority;
• 	Ratification 	by 	final 	policymakers 	of 	the 	decisions 	of
subordinates to whom authority was delegated subject to the
policymakers’ “review and approval”; or
• 	“Failure to adequately train or supervise employees,” as long
as the failure results from “deliberate indifference” to the
plaintiff’s injuries.
Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010) (quotations omitted).
The “official policy or custom” requirement is intended to distinguish “acts of the
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municipality from acts of employees of the municipality,” making clear that municipal
liability is limited to actions “for which the municipality is actually responsible.” Cacioppo
v. Town of Vail, Colo., 528 F. App’x 929, 932 (10th Cir. 2013) (quotations omitted).
As for the “causation” element, the plaintiff must plausibly allege “a direct causal
link between the policy or custom and the injury alleged.” See Waller v. City & Cnty. of
Denver, 932 F.3d 1277, 1284 (10th Cir. 2019) (quotation omitted); accord Bryson, 627
F.3d at 788; Schneider, 717 F.3d at 770. Put differently, a municipality is not liable for the
constitutional violations of its employees “simply because such a violation has occurred;
a policy or custom must have actually caused that violation.” Cordova v. Aragon, 569 F.3d
1183, 1194 (10th Cir. 2009) (citation omitted).
Finally, for the requisite state of mind element, the plaintiff must plausibly allege
that the municipal action was taken with “‘deliberate indifference’ as to its known or
obvious consequences.” Schneider, 717 F.3d at 770 (quoting Bd. of Cnty. Comm’rs of
Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 407 (1997)). This standard is satisfied where
the plaintiff alleges that a municipality has “actual or constructive notice that its action or
failure to act is substantially certain” to result in a constitutional violation, and it
“consciously or deliberately” disregards the risk of harm. Barney v. Pulsipher, 143 F.3d
1299, 1307 (10th Cir. 1998). While “notice” is often shown by alleging a “pattern of tortious
conduct,” a municipality’s deliberate indifference may also be demonstrated if “a violation
of federal rights is a highly predictable or plainly obvious consequence of a [the]
municipality’s action or inaction.” Cacioppo, 528 F. App’x at 932 (citing Schneider, 717
F.3d at 771).
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B. Mr. Erbacher’s Monell claim against Fort Collins
In its motion to dismiss, the City argues that the complaint contains insufficient
factual content to establish Monell liability based upon FCPS’s failure to train or supervise
Officer Haferman in the performance of his DUI Officer duties.3 See ECF No. 40 at 10–
12. The Court disagrees.
Mr. Erbacher’s complaint revolves largely around FCPS’s failure to supervise
Officer Haferman, or to take corrective action after he repeatedly made DUI arrests
without probable cause. Based on the allegations detailed above, the Court finds that Mr.
Erbacher has sufficiently pleaded a “policy” of failure to supervise for Monell purposes.
The fact that so many DUI charges originating from a single investigating officer were
dismissed after chemical testing came back negative for any drugs and alcohol, in and of
itself, would naturally create a need to review the officer’s performance during DUI stops
to determine what corrective measures may be necessary.
The complaint indicates, however, that despite FCPS’s insistence that it “always
conduct[s] an internal review of any DUI arrest made by one of its officers that has
chemical results come back negative for drugs/alcohol,” see, e.g., ECF No. 33, ¶ 33, there
was no record that FCPS had reviewed any of the 15 defective DUI arrests above until
3 The Court does not analyze the sufficiency of the complaint based on other theories of Monell liability—
e.g., formal or informal policy, decisions of final policymakers, or ratification—since the City did not see fit
to challenge the complaint on those bases until its reply brief. See Gutierrez v. Cobos, 841 F.3d 895, 902
(10th Cir. 2016) (noting that courts generally consider issues raised for the first time in a reply brief to be
waived); Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011) (same); see also Pub. Serv. Co. of Colo.
v. Bd. of Cnty. Comm’rs of San Miguel Cnty., No. 04-cv-01828-REB-CBS, 2006 WL 8454233, at *1 (D.
Colo. Jan. 27, 2006). (“[I]t is inequitable and improper for a party, although raising the bare bones of an
argument in its opening brief, to reserve a fully developed presentation of that argument for the reply, when
the opposing party has no meaningful opportunity to respond.”).
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after Officer Haferman’s internal affairs investigation was opened, see id., ¶¶ 31, 37, 43–
46, 106–14. According to the complaint, had FCPS timely performed this review, Officer
Haferman’s pattern of conducting SFSTs incorrectly and making arrests without probable
cause would have been readily apparent in his body-worn camera footage and would
have prompted remedial action. See id., ¶ 27. Similarly, the complaint alleges that FCPS
had received other warning signs about Officer Haferman’s deficient performance—
including that the Larimer County DA had several “previous discussions” with FCPS about
the quality of Officer Haferman’s DUI investigations, and that an FCPS corporal had
noticed Officer Haferman performing SFSTs incorrectly—yet FCPS did not effectively
intervene or re-train him to prevent further baseless DUI arrests. See id., ¶¶ 30, 144.
Perhaps most significantly, Officer Haferman himself stated that he “didn’t have any
reason to believe he wasn’t doing good work based on no supervisors or experts in the
field saying otherwise.” Id., ¶ 139.
A clear pattern or history of a single officer’s DUI charges being dismissed for lack
of probable cause may demonstrate a high likelihood of similar future unconstitutional
DUI arrests unless that officer is supervised differently. In that light, FCPS’s failure to take
corrective action in the face of Officer Haferman’s pattern of meritless DUI arrests
plausibly states a “policy” of deficient supervision. See Zartner v. City & Cnty of Denver,
242 F. Supp. 3d 1168, 1174–75 (D. Colo. 2017); see also Vann v. City of N.Y., 72 F.3d
1040, 1051 (2d Cir. 1995) (focusing on the supervision of a particular problem officer and
finding that summary judgment for the city was inappropriate where the evidence showed
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an 	“absence 	of 	any 	significant 	administrative 	response 	to 	[the 	problem 	officer’s]
resumption of his abusive conduct upon reinstatement”).
For the same reasons, the allegations included in the complaint satisfy the
“causation” element—a requirement where a plaintiff alleges Monell liability for a failure
to supervise employees. See Schneider, 717 F.3d at 769. True enough, “[t]he causation
element is applied with especial rigor when the municipal police or practice is itself not
unconstitutional, for example, when the municipal liability claim is based upon inadequate
training, supervision, and deficiencies in hiring.” Id. at 770 (citation omitted). But here, as
detailed above, “a sustained pattern of [unconstitutional arrests made by] one officer that
does not result in discipline or correction . . . makes the probability of another violation
more likely.” Zartner, 242 F.Supp.3d at 1176. This is sufficient at the pleading stage to
demonstrate causation.
Finally, the complaint plausibly alleges the “deliberate indifference” element of
Monell liability. Generally, to show this element, a plaintiff must allege that “[t]he need for
more or different supervision . . . is so obvious, and the inadequacy so likely to result in
the violation of constitutional rights, that the policy of the City can be said to have been
deliberately indifferent to the need.” Brown v. Gray, 227 F.3d 1278, 1291–92 (10th Cir.
2017). And pertinent here, deliberate indifference to the need for supervision may be
inferred by “a pattern of tortious conduct,” Cacioppo, 528 F. App’x at 932, or where
complaints or other clear warning signs “are followed by no meaningful attempt on the
part of the municipality to investigate or to forestall future incidents.” Zartner, 242 F. Supp.
3d at 1175 (quoting Vann, 72 F.3d at 1049).
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Again, as noted above, the complaint sets forth Officer Haferman’s pattern of
wrongful DUI arrests in great detail, and it further alleges that the City was given
numerous warning signs: over a dozen of Officer Haferman’s DUI charges being
dismissed as wholly devoid of probable cause; multiple complaints from the Larimer DA;
and an FCPS corporal witnessing Officer Haferman’s substandard SFST techniques first-
hand. Despite these warning signs, FCPS failed to subject Officer Haferman’s body-worn
camera footage or arrest reports to any meaningful review, provide Officer Haferman with
any remedial training, or otherwise intervene to prevent future wrongful DUI arrests. As
such, the complaint adequately alleges that the City had ample notice of Officer
Haferman’s conduct to which it should have responded, but the City instead was
deliberately indifferent to the obligation to prevent other constitutional violations. See
Zartner, 242 F.Supp.3d at 1175–76.
In sum, because the complaint contains sufficient factual content to establish the
City’s liability for failing to supervise Officer Haferman, dismissal of Mr. Erbacher’s Monell
claim at this stage is unwarranted.
IV. CONCLUSION
Consistent with the foregoing analysis, Defendants City of Fort Collins, Sergeant
Allen Heaton, and Sergeant Jason Bogosian’s Motion to Dismiss Plaintiff’s Complaint
Pursuant to Fed. R. Civ. P. 12(b)(6) and Request for Qualified Immunity, ECF No. 40, is
DENIED.
DATED this 19th day of April 2024.
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BY THE COURT:
________________________________
Charlotte N. Sweeney
United States District Judge
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