Estate of Richard Ward et al v. Pueblo County, Colorado et al

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 1:23-cv-00473-CNS-MDB
ESTATE OF RICHARD WARD, by and through its personal representative Kristy Ward
Stamp, and
KRISTY WARD STAMP,
Plaintiffs,
v.
PUEBLO COUNTY SHERIFF DAVID J. LUCERO, in his official capacity;
PUEBLO COUNTY BOARD OF COUNTY COMMISSIONERS;
DEPUTY CHARLES MCWHORTER, in his individual and official capacity;
DEPUTY CASSANDRA GONZALES, in her individual and official capacity;
DEPUTY JACOB MAHAN, in his individual and official capacity;
DEPUTY CHRISTINE SPENCER, in her individual and official capacity;
DEPUTY NICOLAS BERUMEN, in his individual and official capacity;
DEPUTY ROBERT QUINTANA, in his individual and official capacity; and
SERGEANT JOSH RAGAN, in his individual and official capacity,
Defendants.
ORDER
This matter comes before the Court on Defendants’ Amended Motion to Dismiss
Amended Complaint Pursuant to Fed. R. Civ. P. 12 and Fed. R. Civ. P. 8 (ECF No. 55).
For the following reasons, the Court GRANTS IN PART and DENIES IN PART the motion.
I. BACKGROUND
This action arises from an alleged excessive force incident in which Pueblo County
Sheriff’s Office (“PCSO”) deputies shot and killed Richard Ward, then arrested his mother,
Case No. 1:23-cv-00473-CNS-MDB Document 97 filed 01/11/24 USDC Colorado
pg 1 of 21

2
Kristy Ward Stamp, and seized her personal property. The facts underlying this incident
are fully set forth in the Court’s Order on Defendants’ first motion to dismiss (see ECF No.
46 at 2–6). Notably, the factual allegations surrounding Defendants’ conduct on the day
Mr. Ward was killed appear to be substantially unchanged between Plaintiffs’ original and
amended complaints (compare ECF No. 1, with ECF No. 49; see also ECF No. 50-1
(redlined version)). Likewise, the claims alleged against Defendants are largely identical,
save for the substitution of Defendant Sheriff David J. Lucero, in his official capacity, and
Defendant 	Pueblo 	County 	Board 	of 	County 	Commissioners 	(“BOCC”) 	for 	former
Defendant Pueblo County (see id.).
After Plaintiffs amended their complaint, Defendants filed their second motion to
dismiss, arguing that (i) BOCC is not a proper defendant because a sheriff, not a board
of county commissioners, is subject to municipal liability for constitutional violations
committed by sheriff’s deputies; (ii) the Individual Defendants are entitled to qualified
immunity from any claims brought under 42 U.S.C. § 1983; and (iii) the state law claims
fail to sufficiently allege each Individual Defendants’ personal participation in the violation
of Plaintiffs’ constitutional rights (see ECF No. 55 at 3–15). The motion is now fully briefed
(see ECF Nos. 62, 67), and the Court heard oral argument regarding the motion on
December 19, 2023 (see ECF No. 87).
II. LEGAL STANDARD
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,
a complaint must allege facts, accepted as true and interpreted in the light most favorable
Case No. 1:23-cv-00473-CNS-MDB Document 97 filed 01/11/24 USDC Colorado
pg 2 of 21

3
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. ANALYSIS
Having considered the motion and related briefing, the parties’ oral argument, the
entire case file, and relevant legal authority, the Court grants in part and denies in part
Defendants’ second motion to dismiss.
A. BOCC as a Named Defendant
In its Order on Defendants’ first motion to dismiss, the Court held that “Pueblo
County” was not properly named as a defendant for Monell liability purposes; in so
holding, the Court granted Plaintiffs leave to substitute BOCC and Sheriff Lucero as
appropriate municipal defendants (see ECF No. 46 at 7–8). Now that this substitution has
Case No. 1:23-cv-00473-CNS-MDB Document 97 filed 01/11/24 USDC Colorado
pg 3 of 21

4
been made in the amended complaint, Defendants argue, as a matter of law, that BOCC
is not a proper defendant because Sheriff Lucero “is an independent official separate and
distinct from the Board and he, to the exclusion of the BOCC, is responsible for his official
acts and the acts of his deputies” (ECF No. 55 at 6; see id. at 3–7). Pursuant to its prior
Order on this issue, the Court disagrees.
Previously, the Court observed that the circumstances of this case raise the
question earlier posed in Chavez v. Board of County Commissioners of Lake County,
Colorado, 426 F.Supp.3d 802 (D. Colo. 2019)—“Who is the proper defendant to a § 1983
lawsuit alleging an injury caused by a policy or practice of the county sheriff? The sheriff’s
office, or the county itself (through its board of commissioners)?” (ECF No. 46 at 8 n.2
(quoting id. at 808)). At that time, the Court noted the apparent disagreement among the
courts of this District as to whether a county sheriff’s office is suable separately from a
county’s board of commissioners (see id. (citing Watkins v. Douglas Cnty., No. 20-cv-
01172-RM-MEH, 2020 WL 8408482, at *14–15 (D. Colo. Sept. 15, 2020), report and
recommendation adopted, 2021 WL 100117 (D. Colo. Jan. 12, 2021) (collecting cases
and explaining split in authority))). And ultimately agreeing with Chavez, the Court
concluded that at the Rule 12(b)(6) stage, where “a Monell claim is based on a sheriff-
made policy, any distinction between suing the sheriff’s office versus suing the county
becomes purely theoretical,” since the county would pay any money judgment regardless
(see id. (citing Chavez, 426 F.Supp.3d at 813)). Even after the amended complaint’s filing,
this conclusion remains unchanged.
Case No. 1:23-cv-00473-CNS-MDB Document 97 filed 01/11/24 USDC Colorado
pg 4 of 21

5
“In federal court, a municipal entity’s ‘[c]apacity to sue or be sued is determined . . .
by the law of the state where the court is located.’” Chavez, 426 F.Supp.3d at 809 (quoting
Fed. R. Civ. P. 17(b)(3)). And invoking various Colorado statutory and constitutional
provisions, Defendants argue that the county sheriff’s office is an independent municipal
entity with exclusive authority over sheriff’s deputies and, thus, is answerable in suit for
those 	deputies’ 	conduct 	independently 	from 	the 	county 	board 	of 	commissioners.
Defendants observe, for instance, that a county sheriff is elected separately from the
board of commissioners, and that a county sheriff exercises full control over the hiring
and firing of his deputies (see ECF No. 55 (citing Colo. Const. art. XIV, § 6; C.R.S. § 30-
10-506)). Defendants further echo Chavez’s observation that the Tenth’s Circuit’s
decision in Bristol v. Board of County Commissioners of County of Clear Creek, 312 F.3d
1213 (10th Cir. 2002), “makes no sense if a sheriff’s office is not separately suable.”1 (see
id. (quoting Chavez, 426 F.Supp.3d at 810)).
Based on this authority, the Court is inclined to agree with Defendants that a county
sheriff’s office may be subject to suit separately from a county board of commissioners.
Defendants’ briefing, however, only answers the question whether the sheriff alone is a
1 Presented with the question whether the board of county commissioners was a deputy’s
“joint employer” alongside the sheriff’s office or, alternatively, whether the sheriff’s office
and board of county commissioners were effectively a “single employer” for purposes of
the deputy’s ADA employment discrimination suit, the Bristol court held that neither were
true. Observing that Colorado law gives sheriff’s offices exclusive control over the hiring
and firing of deputies, and further noting that no evidence had been presented to suggest
that the board had exercised any authority over the sheriff’s employment decisions, the
Tenth Circuit remanded the case to the district court with instructions to dismiss the board
from the action. See Bristol, 312 F.3d at 1219–21. The implication from Bristol, then, was
that “a lawsuit against the sheriff’s office only is a legitimate lawsuit.” Chavez, 426
F.Supp.3d at 810.
Case No. 1:23-cv-00473-CNS-MDB Document 97 filed 01/11/24 USDC Colorado
pg 5 of 21

6
proper municipal defendant for § 1983 purposes when a deputy commits a constitutional
violation pursuant to policy or custom—it does not answer whether the sheriff is the only
proper municipal defendant for such purposes. Indeed, the Chavez court noted the very
same analytical problem: “simply because a Colorado’s sheriff’s office has capacity to be
sued apart from its corresponding county does not necessarily mean that it is the proper
defendant, to the exclusion of the county, in a Monell action alleging an injury caused by
a policy attributable to the sheriff.” Chavez, 426 F.Supp.3d at 810.
Not to be deterred, Defendants insist that “sheriffs have the exclusive right to
control their deputies and, as a logical corollary, are solely responsible for their official
acts” (ECF No. 55 at 4). The statute Defendants rely on for this proposition, however,
establishes only that “[e]ach sheriff may appoint as many deputies as the sheriff may think
proper and may revoke such appointments at will.” C.R.S. § 30-10-506. This statutory
hiring and firing power does not establish as a matter of law that the sheriff is the final
policymaker over the county such that he alone is liable in a Monell action for an injury
inflicted pursuant to an unconstitutional policy.
What the Court is left with, then, is the conclusion earlier reached in Chavez.
Presently, 	it 	is 	at 	best 	unclear 	whether 	Colorado 	law 	makes 	sheriffs 	exclusive
policymakers over counties. See Chavez, 426 F.Supp.3d at 812–13 (analyzing Colorado
statutory and constitutional authorities covering the creation of sheriff’s offices, the
sources of their funding, and the scope of the offices’ authority as compared with their
corresponding counties). At the Rule 12(b)(6) stage, however, the answer to this question
is largely academic. See id. at 813; accord Watkins, 2020 WL 8408482, at *14–15. In the
Case No. 1:23-cv-00473-CNS-MDB Document 97 filed 01/11/24 USDC Colorado
pg 6 of 21

7
event of a verdict in Plaintiffs’ favor, Pueblo County would be required by statute to pay
any judgment, so the only possible significance dismissing BOCC might have is in the
scope of discovery. See Chavez, 426 F.Supp.3d at 813 (citing C.R.S. § 30-25-104(1)). In
turn, no such dismissal is warranted if, as here, the scope of the parties’ discovery would
be unchanged.2 See id.
All of this to say—Defendants’ argument that the challenged municipal policies in
this case are attributable to Sheriff Lucero rather than to BOCC is likely better suited to
the summary judgment phase. As this Court earlier ruled, “[i]f discovery later reveals that
only the sheriff was involved in promulgating the policies at issue in this case, the Court
will revisit the question of which defendants should be properly named or dismissed” (ECF
No. 46 at 8 n.2). See Chavez, 426 F.Supp.3d at 812 (“[I]f a Colorado sheriff is a final
policymaker for the entire ‘body corporate and politic’ known as ‘the county,’ . . . then the
county may be held liable in a § 1983/Monell lawsuit for an injury inflicted by an
unconstitutional sheriff-made policy.”) (emphasis in original). At the close of discovery and
at the time of summary judgment, Plaintiffs will need to explain clearly the policy at issue
and the policymaker(s) to whom the policy is attributable. For now, though, such precision
is 	unnecessary. 	See 	Walker 	v. 	Zepeda, 	No. 	1:11-cv-01242-DME-CBS, 	2012 	WL
13285403, at * 5 (D. Colo. May 29, 2012) (“[A] plaintiff, as an outsider to municipal
government, is not expected to have information about a [county’s] official policies,
practices, or training programs at the pleading stage.”).
2 At oral argument, the parties represented that discovery in this action is already nearing
completion.
Case No. 1:23-cv-00473-CNS-MDB Document 97 filed 01/11/24 USDC Colorado
pg 7 of 21

8
For these reasons, Defendants’ motion is denied to the extent that it seeks to
dismiss BOCC from the action.
B. Qualified Immunity as to Plaintiffs’ § 1983 Claims
Defendants next argue that the Individual Defendants are entitled to qualified
immunity against Plaintiff’s four claims brought under § 1983—excessive force, unlawful
arrest, unlawful property seizure, and retaliation (see ECF No. 55 at 7–14).
In their first motion to dismiss, Defendants merely recited the elements of qualified
immunity and then insisted, without any supporting argument or citation to authority, that
the doctrine applies in this case (see ECF No. 17 at 12–14). The Court rejected
Defendants’ qualified immunity argument as not adequately raised (see ECF No. 46 at
18–20). Now, in their second motion to dismiss, Defendants have engaged in a full-
throated qualified immunity analysis as to Plaintiffs’ federal claims. However, given that
this Court already ruled on Defendants’ qualified immunity argument based on the exact
same factual allegations (compare ECF No. 1, ¶¶ 114–36, 169–79, 194– 205, 219–31,
with ECF No. 49, ¶¶ 115–37, 170–80, 195–206, 220–32), Defendants’ renewed argument
is an improper second bite at the apple. As such, the Court will not revisit its earlier
Case No. 1:23-cv-00473-CNS-MDB Document 97 filed 01/11/24 USDC Colorado
pg 8 of 21

9
qualified immunity ruling as to Claim One (Fourth Amendment excessive force)3 or Claim
Six (Fourth Amendment unlawful property seizure). See Rocky Mountain Wild v. Dallas,
636 F.Supp.3d 1289, 1302–03 (D. Colo. 2022) (“Law of the case doctrine permits a court
to decline the invitation to reconsider issues already resolved earlier in the life of a
litigation.”).
Defendants’ assertion of qualified immunity as to Claim Four (Fourth Amendment
unlawful arrest) and Claim Eight (First Amendment retaliation) does merit consideration,
however. In its Order on Defendants’ first motion to dismiss, the Court dismissed Claims
Four and Eight for improper group pleading in violation of Rule 8 (see ECF No. 46 at 14–
18). Thus, arguably, Defendants did not have an opportunity to properly raise a qualified
immunity defense to—and the Court’s qualified immunity ruling did not extend to—those
particular claims. The Court will therefore apply the two-part qualified immunity test to
Claims Four and Eight.
Under 	the 	qualified 	immunity 	doctrine, 	“government 	officials 	performing
discretionary functions generally are shielded from liability for civil damages insofar as
3 Separately, even if the Court were inclined to analyze the qualified immunity defense as
to the Fourth Amendment excessive force claim for a second time, Defendants in this
round of briefing held back the bulk of their substantive arguments regarding this claim
until their reply brief (compare ECF No. 55 at 9–14, with ECF No. 67 at 4–8). Courts
generally consider issues raised for the first time in a reply brief to be waived. See, e.g.,
Gutierrez v. Cobos, 841 F.3d 895, 902 (10th Cir. 2016); Reedy v. Werholtz, 660 F.3d
1270, 1274 (10th Cir. 2011). Indeed, “it 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.” 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).
Denial of Defendants’ request for qualified immunity as to the excessive force claim would
therefore have been appropriate on this basis alone.
Case No. 1:23-cv-00473-CNS-MDB Document 97 filed 01/11/24 USDC Colorado
pg 9 of 21

10
their conduct does not violate clearly established statutory or constitutional rights of which
a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Thus, to survive a motion to dismiss under Rule 12(b)(6) “where a qualified immunity
defense is implicated, the plaintiff ‘must allege facts sufficient to show (assuming they are
true) that the defendants plausibly violated their constitutional rights.’” Hale v. Duvall, 268
F.Supp.3d 1161, 1164 (D. Colo. 2017) (quoting Robbins v. Oklahoma, 519 F.3d 1242,
1249 (10th Cir. 2008). When a defendant raises the defense of qualified immunity, a
“plaintiff carries a two-part burden to show: (1) that the defendant’s actions violated a
federal constitutional or statutory right, and, if so, (2) that the right was clearly established
at the time of the defendant’s unlawful conduct.” T.D. v. Patton, 868 F.3d 1209, 1220
(10th Cir. 2017) (internal quotation marks omitted).
1. Claim Four (Fourth Amendment Unlawful Arrest)
Defendants argue that the Individual Defendants are entitled to qualified immunity
as to Plaintiffs’ Fourth Amendment unlawful arrest claim. As set forth below, the Court
disagrees.
a. “Constitutional violation” prong
As an initial matter, the parties dispute whether the facts pleaded in the amended
complaint show that Ms. Ward Stamp was “arrested”—Plaintiffs maintain that she was
placed under arrest, while Defendants suggest that she was merely subjected to an
investigative detention. See Muehler v. Mena, 544 U.S. 93, 100 (2005) (explaining that
detaining individuals under intrusive conditions does not automatically convert the
detention to a full-blown custodial arrest); but see United States v. Melendez-Garcia, 28
Case No. 1:23-cv-00473-CNS-MDB Document 97 filed 01/11/24 USDC Colorado
pg 10 of 21

11
F.3d 1046, 1052 (10th Cir. 1994) (the use of handcuffs generally converts a detention into
an arrest). Regardless, the amended complaint alleges that after the shooting, the
Individual Officers handcuffed Ms. Ward Stamp, searched her person, placed her in a
locked police vehicle, and subjected her to an interrogation at a PSCO facility for two
hours (see ECF No. 49, ¶¶ 87, 88, 90, 92). There thus appears to be no dispute that Ms.
Ward 	Stamp 	was 	“seized” 	in 	a 	manner 	triggering 	the 	Fourth 	Amendment’s
reasonableness analysis. See United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)
(“The Fourth Amendment applies to all seizures of the person, including seizures that
involve only a brief detention short of traditional arrest.”); accord Terry v. Ohio, 392 U.S.
1, 16 (1968) (“Whenever a police officer accosts an individual and restrains his freedom
to walk away, he has seized that person . . . .”).
When deciding whether a seizure is reasonable, a court must weigh “the gravity of
the public concerns served by the seizure, the degree to which the seizure advances the
public interest, and the severity of the interference with individual liberty.” Brown v. Texas,
443 U.S. 47, 51 (1979). “[T]he Fourth Amendment requires that a seizure must be based
on specific, objective facts indicating that society’s legitimate interests require the seizure
of the particular individual . . . .” Id. Here, at oral argument, Defendants vacillated between
two general rationales for the seizure: (i) to control the crime scene and obtain information
from Ms. Ward Stamp, since she was a witness to her son’s shooting; and (ii) to
investigate Ms. Ward Stamp’s potential involvement in her son’s suspected criminal
activity, since law enforcement had responded to a report of Mr. Ward trying to open car
doors in an apparent attempt at vehicle theft (see also ECF No. 55 at 9–11).
Case No. 1:23-cv-00473-CNS-MDB Document 97 filed 01/11/24 USDC Colorado
pg 11 of 21

12
At the Rule 12(b)(6) stage, the Court declines to consider the latter rationale as an
improper matter outside the complaint. Indeed, the amended complaint pleads no facts
indicating that Ms. Ward Stamp did anything other than sit motionless in her own car until
the Individual Defendants detained her post-shooting (see ECF No. 49, ¶¶ 25–29, 79–
98). Similarly, the pleading indicates that Ms. Ward Stamp was a target of the deputies’
investigation only after Mr. Ward was shot, not before, when the purpose of the law
enforcement encounter was centered around Mr. Ward opening nearby car doors (see
id.). As such, the Court will not conduct the Fourth Amendment reasonableness analysis
based on Defendants’ post hoc allegation that Ms. Ward was herself suspected of criminal
activity. See Allen v. Exec. Dir. of Colo. Dep’t of Corr., No. 20-cv-002260-WJM-KLM, 2020
WL 8408479, at *2 (Rule 12(b)(6) is designed only to “test[ ] the sufficiency of the
allegations of within the four corners of the complaint”) (citation omitted).
That leaves Defendants’ other rationale for Ms. Ward Stamp’s detention—that
seizing her was reasonable as a means of obtaining information from her as a witness to
Mr. Ward’s shooting (see ECF No. 55 at 9 (“It is undisputed that Kristy Ward Stamp was
a passenger in her vehicle where Richard Ward was also located and was a potential
witness.”)). Regarding the scope of this witness detention, the Court is unconvinced. As
an initial matter, the Tenth Circuit observed in Walker v. City of Orem that law enforcement
likely “have less authority to detain those who have witnessed a crime for investigatory
purposes than to detain criminal suspects,” and “some courts have [even] prohibited the
involuntary detention of witnesses to a crime.” 451 F.3d 1139, 1148 (10th Cir. 2006);
accord Illinois v. Lidster, 540 U.S. 419, 427 (2004) (witness detentions are confined to the
Case No. 1:23-cv-00473-CNS-MDB Document 97 filed 01/11/24 USDC Colorado
pg 12 of 21

13
type of brief stops that “interfere[ ] only minimally with liberty”). In Walker, officers shot
and killed a man in a residential driveway as his family members watched from the home’s
front porch. See Walker, 451 F.3d at 1144–45. After the shooting, the officers prevented
the family members from approaching the victim—instead, they pointed guns at the family
members and required them to remain in the home for questioning for nearly 90 minutes.
Id. at 1145. Under those circumstances, the Tenth Circuit held that a 90-minute detention
of witnesses not suspected of criminal activity violated the Fourth Amendment, reasoning
that the detention “was unreasonable and was not justified by either the need for
investigation of a crime or control of a crime scene.” Id. at 1150.
Similarly, in Maxwell v. County of San Diego, the Ninth Circuit considered the
reasonableness of a five-hour detention of witnesses to a crime. See 708 F.3d 1075, 1083
(9th Cir. 2013). It reasoned that “[a]lthough detention of witnesses for investigative
purposes can be reasonable in certain circumstances, such detentions must be minimally
intrusive,” and that even in a context where criminal activity was suspected, the “Supreme
Court has never endorsed a detention longer than 90 minutes.” Id. at 1083, 1084. Under
the circumstances, the Ninth Circuit held that a five-hour suspicionless detention of a
witness was unreasonable. Id. at 1084.
In yet another similar case, Lincoln v. Scott, SWAT officers shot and killed an
armed man in front of his daughter, then physically removed the daughter from the home,
handcuffed her, locked her in the back of a police vehicle for two hours, and then
interrogated her at the police station for another two hours. 887 F.3d 190, 192–93 (5th
Cir. 2018). There, the Fifth Circuit reasoned that although it may have been reasonable
Case No. 1:23-cv-00473-CNS-MDB Document 97 filed 01/11/24 USDC Colorado
pg 13 of 21

14
for the officers to detain the daughter for some amount of time to determine her role in
the incident, the officers exceeded this authority when they confined her in the police car
for two hours. Id. at 197 (citation omitted). Similarly, although it may have been
reasonable for the officers to remove the daughter from the scene for safety reasons, “it
[did] not necessarily follow that they had unbound authority to hold her for roughly four
hours, notably without probable cause.” Id.
All told, the Court finds Walker, Maxwell, and Lincoln to be highly instructive given
the circumstances of this case. As noted above, the amended complaint alleges that the
Individual Defendants handcuffed,4 confined, and interrogated Ms. Ward Stamp—a non-
suspect witness—for at least two hours after her son was shot. Further, the amended
complaint does not suggest that she herself was suspected of any criminal activity when
the shooting occurred. The Court thus finds that Plaintiffs have sufficiently alleged a
violation of Ms. Ward Stamp’s Fourth Amendment rights regarding her wrongful detention.
b. “Clearly established” prong
Having found that Plaintiffs have stated a Fourth Amendment violation by alleging
Ms. Ward Stamp’s prolonged detention without probable cause, the Court must now
determine whether that right was “clearly established” at the time of the Individual
Defendants’ conduct. The Court concludes that it was.
4 At oral argument, Defendants explained that Ms. Ward Stamp was handcuffed upon her
placement in the patrol vehicle pursuant to PCSO policy. Police policy, however, does not
control the Court’s analysis of the Individual Defendant’s liability for a constitutional
violation. Cf. Anaya v. Crossroads Managed Care Sys., Inc., 195 F.3d 584, 592 (10th Cir.
1999). Indeed, particularized suspicion that a detainee is dangerous is required in order
to justify handcuffs or other restraints in an investigative detention. See Melendez-Garcia,
28 F.3d at 1052–53.
Case No. 1:23-cv-00473-CNS-MDB Document 97 filed 01/11/24 USDC Colorado
pg 14 of 21

15
Regarding this second qualified immunity prong, a right is clearly established
“when a Supreme Court or Tenth Circuit decision is on point, or if the clearly established
weight of authority from other courts shows that the right must be as the plaintiff
maintains.” Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014) (quoting PJ ex rel.
Jensen v. Wagner, 603 F.3d 1182, 1196–97 (10th Cir. 2010)). The relevant, dispositive
inquiry in determining whether a right is clearly established is whether it would be clear to
a reasonable officer that his conduct was unlawful in the situation he confronted. See
Wilson v. Layne, 526 U.S. 603, 615 (1999). While a plaintiff need not cite a case directly
on point, he still must show that the law would have informed a reasonable officer in the
defendant’s position that his conduct was unlawful in that situation. See Knopf v. Williams,
884 F.3d 939, 949 (10th Cir. 2018) (citation omitted).
Pertinent here, in Walker, the Tenth Circuit determined that back in 1998, the
officers had not violated clearly established law by forcefully detaining witnesses without
suspicion following an officer-involved shooting. See Walker, 451 F.3d at 1151 (“[W]e
have found no pertinent Supreme Court . . . decision prior to the events in question, and
no clearly established weight of authority from other courts, that would have made the
unlawfulness of the officers’ conduct apparent to them.”). As noted above, however, the
Walker court did determine that detention of witnesses under these circumstances
violated the Fourth Amendment. Id. at 1150. Thus, in this case, when the Individual
Defendants 	seized 	Ms. 	Ward 	Stamp 	under 	substantially 	identical 	post-shooting
conditions in 2023, the Tenth Circuit’s decision in Walker (as well as the weight of
persuasive authorities from other circuits, such as Maxwell and Lincoln) gave them ample
Case No. 1:23-cv-00473-CNS-MDB Document 97 filed 01/11/24 USDC Colorado
pg 15 of 21

16
notice that seizing a non-suspect witness for an extended period of time, even for
otherwise 	legitimate 	investigative 	purposes, 	would 	violate 	the 	witness’s 	Fourth
Amendment rights.5 As such, Ms. Ward Stamp’s right not to be unreasonably detained
as a witness was clearly established at the relevant time.
* * *
Having found both that the amended complaint sufficiently alleges a Fourth
Amendment unlawful arrest, and that Ms. Ward Stamp’s Fourth Amendment rights were
clearly established, the Court concludes that the Individual Defendants are not entitled to
5 Other similar, albeit less squarely on point, Tenth Circuit authority tends to bear out this
conclusion. For instance, in Manzanares v. Higdon, officers handcuffed a non-suspect
informant and locked him in the back of a patrol vehicle for at least three hours (and
possibly as long as seven hours) in order to prevent him from impeding the officers’
investigation on scene. 575 F.3d 1135, 1141 (10th Cir. 2009). In the informant’s
subsequent § 1983 action, the Court determined that the officers were not entitled to
qualified immunity, because (i) the informant’s prolonged restraint in handcuffs and
confinement in the squad car constituted an arrest without probable cause in violation of
the Fourth Amendment, and (ii) in light of relevant Tenth Circuit case law, “any reasonable
officer would understand that it is unconstitutional to handcuff someone absent probable
cause or an articulable basis to suspect a threat to officer safety combined with
reasonable suspicion.” Id. at 1149–50.
Likewise, in Cortez v. McCauley, sheriff’s deputies responding to a report of child sexual
abuse physically escorted a non-suspect babysitter out of the house late at night,
confiscated her cell phone, placed her in the back seat of a locked patrol car, and
interrogated her. 478 F.3d 1108, 1122–23 (10th Cir. 2007). Analyzing the babysitter’s
§ 1983 claim under the rubric of Fourth Amendment excessive force, the Court ruled that
the deputies were not entitled to qualified immunity, because (i) the deputies’ physical
confinement of the babysitter bore no relationship to the purported need to secure their
own safety, and (ii) pertinent here, “[u]nder prior case law in the Tenth Circuit, officers are
required to articulate specific justifications for uses of force during an investigative
detention, such as locking a person in a police car,” but the deputies in that case could
not do so. Id. at 1131 (emphasis added).
Case No. 1:23-cv-00473-CNS-MDB Document 97 filed 01/11/24 USDC Colorado
pg 16 of 21

17
qualified immunity as to this claim. Defendants’ motion to dismiss is therefore DENIED as
to Claim Four.
2. Claim Eight (First Amendment Retaliation)
Defendants also assert qualified immunity as to Plaintiffs’ First Amendment
retaliation claim, in connection with the Individual Defendants having allegedly arrested
Ms. Ward Stamp and confiscated her property in retaliation for her expressions of shock
and grief following the shooting. Here, the Court agrees that Plaintiffs have not pleaded
sufficient factual content (if true) to show that Defendants violated Ms. Ward Stamp’s First
Amendment rights.
In 	order 	to 	establish 	a 	retaliation 	claim 	for 	speech 	protected 	by 	the 	First
Amendment, a plaintiff must demonstrate “(1) that he was engaged in a constitutionally
protected activity; (2) that the defendant’s action caused him to suffer an injury that would
chill a person of ordinary firmness from continuing to engage in that activity; and (3) that
the defendant’s actions were substantially motivated as a response to plaintiff’s exercise
of his . . . speech rights.” Sgaggio v. Diaz, No. 22-cv-02043-PAB-MDB, 2023 WL
6064599, at *3 (D. Colo. Sept. 18, 2023) (citing Becker v. Kroll, 494 F.3d 904, 925 (10th
Cir. 2007). In turn, to plead this third “motivation” element, a plaintiff must allege facts
showing that the protected speech played a substantial part in the defendant’s decision
to take actions adverse to the plaintiff. See Maestas v. Segura, 416 F.3d 1182, 1188 (10th
Cir. 2005). The amended complaint, however, merely parrots the “motivation” element
(ECF No. 49, ¶ 227 (“Defendants’ retaliatory actions were substantially motivated by [Ms.
Ward Stamp’s] exercise of her First Amendment rights.”)). It does not allege specific facts
Case No. 1:23-cv-00473-CNS-MDB Document 97 filed 01/11/24 USDC Colorado
pg 17 of 21

18
linking 	the 	Individual 	Defendants’ 	actions 	on 	scene 	to 	Ms. 	Ward 	Stamp’s 	verbal
expressions of outrage at her son’s shooting, nor does it even identify what Ms. Ward
Stamp said that would have spurred the deputies to arrest her and seize her property.
Indeed, at oral argument, Plaintiffs appeared to concede a factual difficulty regarding the
motivation element—it is difficult to fathom how Ms. Ward Stamp could have been
arrested for her verbal outpouring of grief when she was not informed of her son’s death
until after her release from detention.
In short, Plaintiffs have failed to allege that the Individual Defendants committed
retaliatory acts in response Ms. Ward Stamp’s First Amendment protected speech.
Accordingly, the Court concludes, without reaching the “clearly established” prong, that
Plaintiffs have not carried their two-part burden in the qualified immunity analysis as to
Claim Eight. This claim is therefore dismissed without prejudice.
C. Pleading Sufficiency of Plaintiffs’ State Law Claims
Finally, Defendants argue that Plaintiffs’ state law claims “have merely alleged
violations in a group setting,” and that they lack the required specificity under Federal
Rule of Civil Procedure 8 as to what each Individual Defendant did after the shooting that
allegedly violated Plaintiffs’ constitutional rights (see ECF No. 55 at 14; see id. at 14–15).
Put differently, Defendants maintain that Plaintiffs have engaged in impermissible “group
pleading” in their state law claims by making collective allegations against multiple
defendants rather than differentiating each officer’s conduct on scene. See Fed. R. Civ.
P. 8(a)(2); see also Carrado v. Daimler AG, No. 17-cv-3080-WJM-SKC, 2018 WL
Case No. 1:23-cv-00473-CNS-MDB Document 97 filed 01/11/24 USDC Colorado
pg 18 of 21

19
4565562, at *3 (D. Colo. Sept. 24, 2018) (explaining the Rule 8 notice problems attendant
with “group pleading”).
It appears that the state law claims Defendants identify as deficient under Rule 8
include Claim Five (Colo. Const. art. II, § 7 Unlawful Arrest), Seven (Colo. Const. art. II,
§ 7 Unlawful Seizure), and Nine (Colo. Const. art. II, § 10 Retaliation), which Plaintiffs
have alleged against “All Individual Defendants”—including Defendants McWhorter,
Gonzales, Mahan, Spencer, Berumen, Quintana, and Ragan—for their conduct on scene
after the shooting (see ECF No. 49, ¶¶ 181–94, 207–219, 233–48).6 Notably, however,
Defendants raised this same Rule 8 argument in their first motion to dismiss and relied
on nearly identical authority in doing so (see ECF No. 17 at 10–12). Here again,
Defendants seek a second bite at the apple. For the most part, the Court will not
reconsider its earlier ruling as to these claims. See Rocky Mountain Wild, 636 F.Supp.3d
at 1302–03.
However, at this stage, now that the Court has fully ruled upon and dismissed
Plaintiffs’ First Amendment retaliation claim, see supra, § III.B.2, it appears that dismissal
of their state-law retaliation claim is similarly warranted. Claim Nine alleges that Ms. Ward
Stamp was arrested and had her property seized in retaliation for her speech expressing
6 While Claims Two (Colo. Const. art. II, § 7 Excessive Force) and Three (Battery Causing
Wrongful Death) are also state law claims, they are alleged only against Defendants
McWhorter and Gonzales, and Defendant McWhorter, respectively, for their conduct
before and during the shooting. Both in their briefing and later at oral argument,
Defendants appear to have conceded that the amended complaint had sufficiently alleged
Defendant McWhorter’s and Defendant Gonzales’ liability for Claims Two and Three (see
ECF No. 55 at 13–14 (“[T]he primary problem with Plaintiffs’ allegations is that they fail to
include sufficient information as to the personal participation for each of the [I]ndividual
Defendants, other than Deputy McWhorter and Deputy Gonzales.”) (emphasis added).
Case No. 1:23-cv-00473-CNS-MDB Document 97 filed 01/11/24 USDC Colorado
pg 19 of 21

20
shock and grief after the shooting (see ECF No. 49, ¶¶ 233–48). Pertinent here,
Colorado’s state-law analogue to the First Amendment states, “[n]o law shall be passed
impairing the freedom of speech; every person shall be free to speak, write, or publish
whatever he will on any subject.” Colo. Const. art. II, § 10. While this free speech
protection is broader than that afforded by the First Amendment, it does not follow that
the 	Court’s 	analysis 	of 	Plaintiffs’ 	state-law 	retaliation 	claim 	varies 	from 	its 	First
Amendment retaliation analysis above—indeed, “the Colorado Supreme Court will
analyze a case based solely on the federal Constitution if it falls squarely within its
protections.” Sgaggio, 2023 WL 6064599, at *6 (citation and internal quotation marks
omitted). In that light, the Court has not identified, nor have Plaintiffs provided, any reason
why the Court’s analysis of Claim Nine (a state-law speech retaliation claim) should differ
from its analysis of Claim Eight (an analogous retaliation claim under federal law),
especially since both claims rely on the same underlying facts (see ECF No. 49, ¶¶ 79–
98, 220–48). As such, Claim Nine is dismissed without prejudice for the same pleading
deficiencies identified in Claim Eight. See supra, § III.B.2.
IV. CONCLUSION
Consistent with the foregoing analysis, Defendants’ Amended Motion to Dismiss
Amended Complaint Pursuant to Fed. R. Civ. P. 12 and Fed. R. Civ. P. 8 (ECF No. 55)
is GRANTED IN PART and DENIED IN PART, as follows:
1. 	Claims Eight and Nine are DISMISSED WITHOUT PREJUDICE;
2. 	The Court grants Plaintiffs leave to amend their complaint within 10 days if the
pleading deficiencies in Claims Eight and Nine can be remedied.
3. 	Defendants’ motion is DENIED in all other respects.
Case No. 1:23-cv-00473-CNS-MDB Document 97 filed 01/11/24 USDC Colorado
pg 20 of 21

21
DATED this 11th day of January 2024.
BY THE COURT:
________________________________
Charlotte N. Sweeney
United States District Judge
Case No. 1:23-cv-00473-CNS-MDB Document 97 filed 01/11/24 USDC Colorado
pg 21 of 21