Montgomery v. Lore

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 21-cv-02553-PAB-MEH
WILLIAM MONTGOMERY,
Plaintiff,
v.
TRAVIS LORE,
Defendant.
_____________________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________________
Michael E. Hegarty, Chief United States Magistrate Judge.
Before me is Defendant’s second Motion to Dismiss (“Motion”). ECF 64. Plaintiff William
Montgomery (“Plaintiff”) brings this lawsuit against Defendant Travis Lore (“Defendant”), a
police officer for the City of Aurora, Colorado, pursuant to 42 U.S.C. § 1983 for violations of his
Fourth Amendment constitutional rights. ECF 61. Defendant moves for dismissal of all claims
against him based on qualified immunity. ECF 64. The Motion is fully briefed. ECFs 64, 72–73. I
heard oral argument on the Motion on September 10, 2024. ECF 76. Because several new material
facts were pleaded in Plaintiff’s First Amended Complaint (“FAC”), which was filed after remand
from the Tenth Circuit, and those new facts fundamentally change the existence of reasonable
suspicion, I recommend that the Motion be granted.
PROCEDURAL BACKGROUND
This is Defendant’s second Motion to Dismiss. ECFs 17, 64. The first, filed May 11, 2022
[ECF 17], resulted in a Recommendation by me that it be granted in its entirety but giving Plaintiff
leave to amend his Complaint [ECF 31]. Chief Judge Philip A. Brimmer adopted that
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Recommendation in part. ECF 37. First, the Chief Judge agreed that Plaintiff did not sufficiently
plead his first claim for relief, an “unlawful relocation” claim under the Fourth Amendment. Id.
As to his second claim for “unreasonable search,” Plaintiff did not object to my Recommendation
that it be dismissed, and the Chief Judge adopted that part of the recommendation. Id. The Chief
Judge next agreed that Plaintiff did not sufficiently plead his third claim as to the Defendant’s
seizure of a bag of wipes from Plaintiff’s jacket pocket, an “unreasonable seizure” claim. Id.
However, the Chief Judge overruled my Recommendation as to Plaintiff’s fourth and fifth claims.
Id. For the fourth claim for relief, a seizure of RV lights from a different clothing pocket on
Plaintiff’s person (then alleged to have been in Plaintiff’s pants pocket in the original Complaint,
but now alleged to have been in Plaintiff’s right outer jacket pocket in the FAC), the Chief Judge
found that Plaintiff stated a claim. Id. Similarly, the Chief Judge found that Plaintiff stated his fifth
claim for unlawful detention to investigate whether the RV lights were stolen. Id. Finally, the Chief
Judge adopted the Recommendation that Plaintiff be given leave to amend. Id.
On Defendant’s interlocutory appeal of the Chief Judge’s Order, the Tenth Circuit affirmed.
ECF 42; Montgomery v. Lore, No. 23-1106, 2023 WL 8613523 (10th Cir. Dec. 13, 2023). Thus,
Plaintiff’s two claims for the unlawful seizure of RV lights and the unlawful detention to
investigate the RV lights remained, and based on my Recommendation and the Chief Judge’s
Order, Plaintiff could re-plead those as well as the unreasonable search claim. ECFs 31, 37, 42.
On remand, Plaintiff filed his FAC which contained material factual differences from the original
Complaint. Compare ECF 1, with ECF 61.
FACTUAL BACKGROUND
For the purposes of this ruling, I accept as true the factual allegations—as opposed to any
legal conclusions, bare assertions, or conclusory allegations—that Plaintiff raises in his FAC. See
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generally Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (accepting as true a plaintiff’s factual
allegations for purposes of Fed. R. Civ. P. 12(b)(6) analysis).
Plaintiff alleges that on September 17, 2019, at approximately 8:36 p.m., he entered a
Walmart Superstore to go shopping. ECF 61 at ¶ 5. Plaintiff purchased some items and carried
them toward the exit in his hands. Id. at ¶ 6. As Plaintiff began to leave the store, Defendant, an
off-duty City of Aurora police officer, who was posted at the exit, followed him. Id. at ¶ 7.
Defendant met Plaintiff at Plaintiff’s car. Id. at ¶¶ 7–8. Defendant asked to see a receipt for the
items (one package each of hand wipes and disinfecting wipes), but “Plaintiff politely declined.”
Id. at ¶ 8. Plaintiff then put the items into the “pockets located on the inside of his jacket.” Id.
Defendant asked several more times for a receipt, then asked to see Plaintiff's identification.
Id. at ¶ 9. Plaintiff asked if he was being detained by Defendant, and Defendant responded in the
affirmative. Id. Before Plaintiff could provide his identification, Defendant directed him to sit
down on the ground next to him, which Plaintiff did. Id. Moments later, Defendant asked Plaintiff
to stand up and walk back to the store for further investigation, which Plaintiff did. Id. In the store,
Plaintiff provided Defendant with his identification. Id.
Defendant patted down Plaintiff. Id. at ¶ 10. Plaintiff's outer right jacket pocket, which
Defendant patted down, contained then-unidentified objects that later turned out to be two RV
lights (that Plaintiff had purchased at a different time from Walmart, unbeknownst to Defendant).
Id. at ¶¶ 11, 14. Defendant acknowledged something was in Plaintiff’s pocket, and inquired
whether he had stolen those items as well as the wipes. Id. at ¶ 11. Plaintiff did not respond. Id. at
¶ 12. Then Defendant reached his hands into the inside pockets of Plaintiff's jacket, where the
wipes were, seemingly without doing anything further at that time concerning the RV lights. Id.
Plaintiff objected to the search, citing Terry v. Ohio. Id.; 392 U.S. 1 (1968). Nevertheless,
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Defendant removed the two packages of wipes from Plaintiff’s inner jacket pockets. ECF 61 at ¶
12.
About that time, two cover (on duty) officers arrived at the store to assist Defendant—
Aurora police officers Luke Ingersoll and Drew Limbaugh. Id. at ¶ 13. After Defendant asked
Plaintiff to sit down, the two cover officers stood by Plaintiff while Defendant went to his vehicle
and waited for store employees to continue their investigation into the allegedly stolen wipes. Id.
After Defendant walked away, Officer Limbaugh performed his own pat-down of Plaintiff for
safety purposes. Id. at ¶ 14. During Officer Limbaugh's pat-down (in the presence of Officer
Ingersoll), Officer Limbaugh did not pat the outside of Plaintiff's right outer jacket pocket
(containing the RV lights), but rather, asked Plaintiff whether the unknown object was another
stolen item and what was it. Id. Plaintiff responded that he does not consent to searched, and
Officer Limbaugh reached directly into the pocket and partially removed one of the lights. Id.
Officer Limbaugh then reinserted the RV light, leaving them in Plaintiff’s right outer jacket pocket.
Id.
About fifteen minutes later, Defendant came back to where Plaintiff was sitting with the
two other officers and informed Plaintiff that he would be issuing him a citation for shoplifting the
two packages of wipes. Id. at ¶ 15. Then, “in full view of the Defendant,” Officer Ingersoll asked
Plaintiff about the still-unidentified objects still located in his right outer jacket pocket (the RV
lights), specifically whether they were more stolen products from the store. Id. Plaintiff repeated
that he does not consent to searches, and Officer Ingersoll reached into the right outer jacket pocket
(without patting it down first) and took both RV lights out. Id. Officer Ingersoll handed both
packages of RV lights to Defendant, who then told Plaintiff that he would be holding onto them
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while he engaged in another investigation with store employees into Plaintiff purportedly stealing
them as well. Id.
After about another fifteen minutes, Defendant returned to Plaintiff and informed him that
Defendant would cite Plaintiff for stealing the two RV lights in addition to stealing the two
packages of wipes. Id. at ¶ 16. Plaintiff was told he was free to go, but Defendant did not return
the wipes or RV lights. Id. at ¶ 17. Plaintiff spoke with Defendant the next day and learned all
charges would be dropped. Id. at ¶ 18.
LEGAL STANDARDS
I. 	Fed. R. Civ. P. 12(b)(6)
The purpose of a motion to dismiss under Fed. R. Civ. P. 12(b)(6) is to test the sufficiency
of the plaintiff’s complaint. Sutton v. Utah State Sch. For the Deaf & Blind, 173 F.3d 1226, 1236
(10th Cir. 2008). “To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at
678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of
a motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires
a two-prong analysis. First, a court must identify “the allegations in the complaint that are not
entitled to the assumption of truth,” that is, those allegations which are legal conclusions, bare
assertions, or merely conclusory. Id. at 679. Second, the Court must consider the factual allegations
“to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state
a plausible claim for relief, such claim survives the motion to dismiss. Id. at 680.
Plausibility refers “to the scope of the allegations in a complaint: if they are so general that
they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged
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their claims across the line from conceivable to plausible.” S.E.C. v. Shields, 744 F.3d 633, 640
(10th Cir. 2014) (quoting Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)). “The
nature and specificity of the allegations required to state a plausible claim will vary based on
context.” Safe Streets All. v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017) (quoting Kan. Penn
Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011)). Thus, while the Rule 12(b)(6)
standard does not require that a plaintiff establish a prima facie case in a complaint, the elements
of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible
claim. Khalik, 671 F.3d at 1191.
However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The complaint must provide “more
than labels and conclusions” or merely “a formulaic recitation of the elements of a cause of action,”
so that “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’”
Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Determining
whether a complaint states a plausible claim for relief will . . . be a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556
U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct,” the complaint has made an allegation, “but it has not shown that the
pleader is entitled to relief.” Id. (quotation marks and citation omitted).
II. 	Treatment of a Pro Se Plaintiff’s Complaint
A pro se plaintiff’s “pleadings are to be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers.” Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
“Th[e] court, however, will not supply additional factual allegations to round out a plaintiff’s
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complaint or construct a legal theory on plaintiff’s behalf.” Smith v. U.S., 561 F.3d 1090, 1096
(10th Cir. 2009) (quoting Whitney v. N.M., 113 F.3d 1170, 1173-74 (10th Cir. 1997)). The Tenth
Circuit interpreted this rule to mean, if a court “can reasonably read the pleadings to state a valid
claim on which the plaintiff could prevail, [it] should do so despite the plaintiff’s failure to cite
proper legal authority, his confusion of various legal theories, his poor syntax and sentence
construction, or his unfamiliarity with pleading requirements.” Diversey v. Schmidly, 738 F.3d
1196, 1199 (10th Cir. 2013) (quoting Hall, 935 F.2d at 1110). However, this interpretation is
qualified in that it is not “the proper function of the district court to assume the role of advocate
for the pro se litigant.” Garrett, 425 F.3d at 840 (quoting Hall, 935 F.2d at 1110).
III. 	Qualified Immunity
The doctrine of qualified immunity protects from litigation a public official whose possible
violation of a plaintiff’s civil rights was not clearly a violation at the time of the official’s actions.
See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity balances two important
interests - the need to hold public officials accountable when they exercise power irresponsibly
and the need to shield officials from harassment, distraction, and liability when they perform their
duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Because qualified immunity
is an immunity from suit, rather than a mere defense to liability, it is effectively lost if a case is
erroneously permitted to go to trial. Id. at 231; Ahmad v. Furlong, 435 F.3d 1196, 1198 (10th Cir.
2006) (“The privilege is an immunity from suit rather than a mere defense to liability.”). The
“driving force behind creation of the qualified immunity doctrine was a desire to ensure that
insubstantial claims against government officials will be resolved prior to discovery.” Pearson,
555 U.S. at 231-32 (quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987)). Accordingly,
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qualified immunity questions must be resolved at the earliest possible stage in litigation.” Id. at
232.
When a defendant asserts qualified immunity, the plaintiff has a two-fold burden to
overcome the asserted immunity: “First, a court must decide whether the facts that a plaintiff has
alleged . . . or shown . . . make out a violation of a constitutional right. . . Second, if the plaintiff
has satisfied this first step, the court must decide whether the right at issue was clearly established
at the time of the defendant’s alleged misconduct.” Pearson, 555 U.S. at 232 (quoting Saucier v.
Katz, 533 U.S. 194 (2001) (internal citations and quotation marks removed)). See also Cox v.
Glanz, 800 F.3d 1231, 1245 (10th Cir. 2015) (stating that plaintiffs must (1) “rebut the
[defendant’s] no-constitutional-rights arguments”; and (2) “demonstrate that any constitutional
violation was grounded in then-extant clearly established law.”) (citing Riggins v. Goodman, 572
F.3d 1101, 1107 (10th Cir. 2009)); see also Felders v. Malcom, 755 F.3d 870, 877-78 (10th Cir.
2014) (“[T]he ‘record must clearly demonstrate the plaintiff has satisfied his heavy two-part
burden; otherwise, the defendants are entitled to qualified immunity.’” (quoting Medina v. Cram,
252 F.3d 1124, 1128 (10th Cir. 2001))). The Supreme Court has afforded courts the discretion to
decide “which of the two prongs of the qualified immunity analysis should be addressed first in
light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 232.
An official’s conduct violates clearly established law when, at the time of the challenged
conduct, “[t]he contours of [a] right [are] sufficiently clear” that every “reasonable official would
have understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011). To satisfy the clearly established prong of the test, the Tenth Circuit requires that “there
must be a Supreme 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.” Clark v.
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Wilson, 625 F.3d 686, 690 (10th Cir. 2010); see also Doe v. Woodard, 912 F.3d 1278, 1289 (10th
Cir.), cert. denied sub nom., I.B. v. Woodard, 139 S. Ct. 2616 (2019); Quinn v. Young, 780 F.3d
998, 1005 (10th Cir. 2015). The Supreme Court has emphasized that the clearly established law
may not be defined at “a high level of generality.” City of Escondido v. Emmons, 139 S. Ct. 500,
503 (2019). The Court stressed that factual “[s]pecificity is especially important in the Fourth
Amendment context[.]” Id. These analogous situations allow “an officer to determine how the
relevant legal doctrine . . . will apply to the factual situation the officer confronts.” Id. Therefore,
Plaintiff must identify clearly established law that put Defendant on notice that his conduct violated
Plaintiff’s rights in the situation he confronted.
ANALYSIS
The FAC asserts three claims for relief under the Fourth Amendment: (1) unreasonable
search, based on Defendant permitting Officer Ingersoll to search Plaintiff’s right outer jacket
pocket [ECF 61 at 10–11]; (2) unreasonable seizure, based on Defendant permitting Officer
Ingersoll to seize the RV lights from Plaintiff’s right outer jacket pocket [id. at 12–13], and (3)
unreasonable detention, based on the investigation following the seizure of the RV lights [id. at
14–15]. Plaintiff maintains there was no reasonable suspicion for either the search or seizure, and
that Defendant is responsible for not stopping Officer Ingersoll. ECF 61. Concomitantly, without
reasonable suspicion, Defendant’s detention of Plaintiff during the investigation into the RV lights,
absent reasonable suspicion at the start of such investigation, violated the Fourth Amendment. Id.
Starting with Plaintiff’s first two claims, Defendant’s first argument for their dismissal is
that he is not liable for the actions of the other officers. ECF 64 at 9–10. The FAC is clear that in
suing Defendant, Plaintiff alleges Defendant should have stopped the other two officers from
performing a search of his person and seizure of his property. ECF 61. First, as to the search of
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Plaintiff or the seizure of the RV lights, Defendant argues the FAC fails to plead, under a Rule
12(b)(6) standard, that Defendant had foreknowledge that Officer Ingersoll was going to reach into
Plaintiff’s pocket and, thus, that he had the ability to stop Officer Ingersoll. ECF 64 at 10. The
FAC purports that Defendant saw that there was something in Plaintiff’s pocket, knew there was
no objective reasonable suspicion, and in full view of Officer Ingersoll, “actively allowed” the
search. ECF 61 at ¶¶ 20, 26. However, I find that I need not reach this first basis for dismissing the
first two claims because Defendant’s qualified immunity argument on clearly established law alone
is dispositive of the first two claims. ECF 64 at 12–14. In 2022, the Tenth Circuit held it was not
clearly established “that an officer must intervene to prevent an illegal search and seizure.” Shaw
v. Schulte, 36 F.4th 1006, 1020 (10th Cir. 2022). At the time of that opinion, the Tenth Circuit stated
that it was only clearly established that such a duty existed in the context of an excessive force
claim. Id. That precedent decisively ends the analysis here. For this reason, I respectfully
recommend that the Motion to Dismiss be granted as to the first and second claims for relief.
I turn now to Plaintiff’s third and final claim in his FAC, a claim that the Chief Judge and
the Tenth Circuit permitted to proceed, concerning Defendant’s allegedly unlawful detention of
him for purposes of investigating the RV lights further. ECF 61 at 14–15. Defendant again moves
to dismiss this claim, arguing that the FAC pleads new, material facts that justify dismissal.
ECF 64. The first of these new facts that Defendant argues the Tenth Circuit did not have the
opportunity to consider was that “the alleged unconstitutional search [for the RV lights] was
conducted by a non-defendant cover officer [Limbaugh] outside the presence of Defendant Lore,
nor that the seizure [of those lights] was made by yet another non-defendant cover officer
[Ingersoll].” ECF 73 at 4. Instead, in Plaintiff’s original Complaint, Plaintiff alleged that it was
Defendant himself who conducted the allegedly unlawful search and seizure of the RV lights. ECF
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1 at ¶ 14. The second set of materially changed facts that Defendant argues the Tenth Circuit was
not able to consider involved what Defendant knew when he accepted the RV lights from Officer
Ingersoll, who according to the FAC, was actually the one to remove them from Plaintiff’s jacket:
(1) that Defendant heard Officer Ingersoll state that Officer Limbaugh had looked at the items
outside Defendant’s presence, and (2) that Officer Ingersoll was the one seized the RV lights from
an outer pocket of the same jacket which Defendant previously witnessed Plaintiff place the wipes,
and which Defendant had already removed from. ECF 73 at 4. The original Complaint, however,
alleged that when Defendant returned to speak to Plaintiff (after taking the wipes to investigate
their alleged theft), Defendant was the one who reached into Plaintiff’s pants pocket and took out
the RV lights, with no intervening involvement of Officers Limbaugh or Ingersoll in these events.
ECF 1 at ¶ 14. Now, in the FAC, Plaintiff alleges that, actually, Officers Limbaugh and Ingersoll
joined together to search for and seize the RV lights from Plaintiff’s jacket pocket (again, the same
jacket where the wipes were) and handed them to Defendant. ECF 61 at ¶ 15. Under these new
circumstances, the question now becomes whether they change the reasonable suspicion analysis
as to Defendant.
In his recitation of facts, Chief Judge Brimmer relied on the allegations from the original
Complaint that the RV lights were in Plaintiff’s pants pocket, and that Defendant reached into the
pants pocket and retrieved the RV lights without any additional information beyond the initial
encounter. ECF 37 at 3. The entire state of Defendant’s knowledge that Chief Judge Brimmer relied
on concerning the RV lights was that (1) Defendant felt them in Plaintiff’s pants pockets during
the first encounter, (2) Defendant asked whether whatever was in the pants pocket was stolen also,
(3) upon returning fifteen minutes later, Defendant asked Plaintiff whether the items in his pants
pocket were also stolen, and (4) Defendant seized the RV lights from the pants pocket even though
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the wipes had been in Defendant’s jacket pocket. Id. at 1–3. Chief Judge Brimmer determined that
this knowledge was “without any objectively reasonable suspicion that the RV lights were stolen
merchandise.” Id. at 15. However, as explained above, the FAC adds material facts that neither the
Chief Judge nor Tenth Circuit could have relied on. First, while Defendant was gone those fifteen
minutes investigating the wipes, the other two officers engaged with Plaintiff about the RV lights.
ECF 61 at ¶¶ 13–15. Second, when Defendant returned to the group, Officer Ingersoll asked
Plaintiff in Defendant’s presence, “Is the stuff in your front left pockets more merchandise from
the store, that Officer Limbaugh looked at? Grab that out of your front pocket there.” Id. at ¶ 15.
Third, Officer Ingersoll reached into that same jacket in which Defendant had found the wipes (a
constitutional search and seizure), pulled out the RV lights, and gave them to Defendant. Id. Under
the FAC’s new recitation of facts, the only material difference between the wipes and the RV lights
was that Defendant had not previously actually seen the RV lights, while he had seen the wipes in
Plaintiff’s hands in the store. Compare ECF 1, with ECF 61. The Tenth Circuit noted that Plaintiff
alleged “Officer Lore had watched Mr. Montgomery put the wipes inside his jacket, so he knew
the location of the suspect merchandise.” ECF 42 at 9; Montgomery, 2023 WL 8613523, at *4.
Under the FAC, it turns out that the RV lights were also located in the jacket—the same “location
of the suspected merchandise,” the wipes. ECF 61.
I find that if the search for, and seizure of, the wipes was constitutional (and for purposes
of this case, it was), then Defendant’s witnessing of Officer Ingersoll pulling the RV lights out of
that very same jacket the wipes were in, after Officer Ingersoll announced his suspicion that the
RV lights were stolen, along with everything else Defendant knew at that moment, established
reasonable suspicion for the RV lights as well. Defendant was “posted up” at the store exit and
logically saw Plaintiff only put the most recent allegedly stolen items in his jacket pocket (the
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wipes). ECF 61 at ¶¶ 7–8. Once Defendant learned from Officer Ingersoll that Officer Limbaugh
had looked at additional pocketed items outside Defendant’s presence, that those items were in
that same jacket as the wipes were found in, and witnessed Plaintiff refusing multiple times to
answer questions about any of his purchases, Defendant had reasonable suspicion of theft of the
RV lights, at least to investigate for fifteen minutes, the same time it took to investigate the wipes.
Id. at ¶¶ 8–9, 11, 15. This is far more than “‘an inchoate and unparticularized suspicion or hunch,’”
as argued by Plaintiff. ECF 72 at 6 (quoting U.S. v. Moore, 795 F.3d 1224, 1229 (10 th Cir. 2015)).
“An officer who ‘stops’ and briefly detains a person for questioning ‘must be able to point
to specific and articulable facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion.’” U.S. v. Davis, 94 F.3d 1465, 1468 (10th Cir. 1996) (citing
Terry, 392 U.S. at 1). “[R]easonable suspicion may exist ‘even if it is more likely than not that the
individual is not involved in any illegality.’” U.S. v. McHugh, 639 F.3d 1250, 1256 (10th Cir. 2011)
(citing U.S. v. Albert, 579 F.3d 1188, 1197 (10th Cir. 2009)). “The detaining officer needs only to
articulate ‘some minimal level of objective justification’ for the detention.” U.S. v. Briggs, 720
F.3d 1281, 1285 (10th Cir. 2013) (quoting U.S. v. Sokolow, 490 U.S. 1, 7 (1989)). Reasonable
suspicion is not an onerous standard, and the court’s judge the officer’s conduct considering
common sense and ordinary human experience, affording deference to an officer’s ability to
distinguish between innocent and suspicious actions. Shaw, 36 F.4th at 1014.
With these principles in mind, I find that (1) watching a suspect place items (wipes) in his
jacket as he walks out of a store, (2) having the suspect refuse multiple times to answer any
questions about his purchases, (3) reasonably determining that the suspect has stolen those items
(wipes) after a short investigation, then (4) watching another police officer remove more unopened
items from the same jacket, and (5) hearing that other officer, who has been with the suspect for
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fifteen minutes outside Defendant’s absence, suggest that those are stolen too, (6) while the suspect
again refuses to answer the officer’s questions, meets the reasonable suspicion test. Defendant is
entitled to qualified immunity because he “could have believed that [reasonable suspicion] existed
to . . . detain the plaintiff—i.e., … the officer had arguable reasonable suspicion.” Vondrak v. City
of Las Cruces, 535 F.3d 1198, 1207 (10th Cir. 2008).
CONCLUSION
Defendant is entitled to qualified immunity for a brief detention of Plaintiff because he
possessed reasonable suspicion Plaintiff had stolen the RV lights; and Plaintiff has failed to cite to
clearly established law supporting Defendant’s liability for any alleged unlawful search or seizure
engaged in by other officers. I respectfully RECOMMEND Defendant’s Motion [filed April 23,
2024; ECF 64] be GRANTED, 1 and that Plaintiff’s claims be dismissed with prejudice. 2
Respectfully submitted this 12th day of September, 2024, at Denver, Colorado.
1 Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any
written objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those findings
or recommendations to which the objections are being made. The District Court need not consider
frivolous, conclusive or general objections. A party’s failure to file such written objections to
proposed findings and recommendations contained in this report may bar the party from a de novo
determination by the District Judge of the proposed findings and recommendations. United States
v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file
written objections to the proposed findings and recommendations within fourteen (14) days after
being served with a copy may bar the aggrieved party from appealing the factual findings and legal
conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Duffield v.
Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v. United States, 950 F.2d 656,
659 (10th Cir. 1991)).
2 See, e.g., Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010 (instructing district court to dismiss
based on qualified immunity “with prejudice”); Lybrook v. Members of the Farmington Mun. Schs.
Bd. of Educ., 232 F.3d 1334, 1341-42 (10th Cir. 2000) (affirming district court order granting
motion to dismiss with prejudice on qualified immunity grounds); Vreeland v. Olson, No. 20-cv-
02330-PAB-SKC, 2021 WL 4237269, at *5 n.7 (D. Colo. Sept. 16, 2021) (“The Court will dismiss
the claim against Olson and Reed [brought by a pro se plaintiff] with prejudice because they are
entitled to qualified immunity); McCrary v. Jones, No. CIV-13-573-M, 2015 WL 873641, at *6
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BY THE COURT:
Michael E. Hegarty
Chief United States Magistrate Judge
(W.D. Okla. Feb. 27, 2015) (dismissing claim with prejudice where defendant was entitled to
qualified immunity).
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