PHILIP A. BRIMMER, Chief District Judge.
This matter is before the Court on the Recommendation of the United States Magistrate Judge [Docket No. 27] filed on June 25, 2019. The magistrate judge recommends that the Court grant Defendant's Motion to Dismiss [Docket No. 17] on the basis of qualified immunity. Docket No. 27 at 1, 15. Plaintiffs, proceeding pro se, filed a timely objection to the magistrate judge's recommendation on July 15, 2019. Docket No. 30.
This case arises out of plaintiffs' encounter with defendant Matthew Gosselin, a police officer with the Westminster Police Department, on September 4, 2016. See Docket No. 7 at 4-6, ¶¶ 1-5. As summarized in more detail in the magistrate judge's recommendation, plaintiffs were standing on opposite off-ramps of U.S. Route 36 in Westminster, Colorado, holding cardboard signs that said, "Change Comes In Many Forms," when they were approached by defendant who informed them that they were in violation of the city's anti-solicitation ordinance. Id., ¶¶ 2-6. Defendant issued a verbal warning to plaintiff David Montgomery and a written citation to plaintiff William Montgomery, which was ultimately dismissed. Id. at 4-5, 9, 18, 25, ¶¶ 2, 9, 16, 22.
Plaintiffs filed this lawsuit on September 4, 2018. Docket No. 1. In their operative complaint, plaintiffs assert three claims: (1) retaliation against protected speech in violation of the First Amendment; (2) unreasonable seizure under the Fourth Amendment; and (3) retaliatory prosecution in violation of the First Amendment. See Docket No. 7 at 25, 27, 36. On February 5, 2019, defendant moved to dismiss all claims on the basis of qualified immunity. See Docket No. 17. On June 25, 2019, the magistrate judge recommended that the Court grant defendant's motion, finding that plaintiffs had not established the causal element of their First Amendment retaliation claim, Docket No. 27 at 7; failed to cite clearly established law showing that plaintiffs' detentions — which, according to the magistrate judge, did not rise above the level of investigative detentions — violated plaintiffs' rights under the Fourth Amendment, id. at 10-12; and failed to allege that defendant acted with malice in order to succeed on their malicious prosecution claim. Id. at 13-14.
The Court must "determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3). An objection is "proper" if it is both timely and specific. United States v. One Parcel of Real Property Known as 2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996).
In the absence of a proper objection, the Court reviews the magistrate judge's recommendation to satisfy itself that there is "no clear error on the face of the record."
Because plaintiffs are proceeding pro se, the Court construes their filings liberally without acting as their advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Plaintiffs do not challenge the magistrate judge's recommendation as to their retaliation and malicious prosecution claims. Regarding their claim for unreasonable seizure under the Fourth Amendment, plaintiffs contend that the magistrate judge erred by: (1) incorrectly concluding that defendant's detention of plaintiffs did not rise to the level of an arrest under the Fourth Amendment; and (2) holding that a reasonable officer in defendant's position would not have understood his conduct to be unlawful. See Docket No. 30 at 1, 7-9.
As relevant to plaintiffs' first argument, the magistrate judge determined that defendant's encounter with plaintiffs constituted investigative detentions under the Fourth Amendment because there were no allegations that defendant used "any force or threat of force," his conversations with plaintiffs were "predominantly cordial," and the encounters were relatively brief — nine and nineteen minutes with David and William, respectively. Docket No. 27 at 9. Plaintiffs challenge the magistrate judge's legal conclusion on two grounds. First, they contend that defendant converted William's stop into an arrest for Fourth Amendment purposes by issuing a written citation.
As to the first, the Tenth Circuit has held that the "issuance of a citation, even under threat of jail if not accepted, does not rise to the level of a Fourth Amendment seizure." Martinez v. Carr, 479 F.3d 1292, 1299 (10th Cir. 2007). In Martinez, the plaintiff received a criminal misdemeanor citation for "resisting, evading or obstructing an officer" after he was involved in an altercation with law enforcement at a state fair. Id. at 1293-94 (internal quotation marks omitted). The plaintiff sued the issuing officer for unreasonable seizure under the Fourth Amendment; however, because the defendant was not involved in the plaintiff's initial detention, the case "present[ed] the pure legal question whether the issuance of a misdemeanor citation requiring appearance at trial in lieu of arrest constitutes a `seizure' for Fourth Amendment purposes." Id. at 1295. The Tenth Circuit held that it did not, relying in part on Knowles v. Iowa, 525 U.S. 113 (1998), in which the Supreme Court concluded that, "even after the issuance of a citation, a routine traffic stop is more analogous to a so-called `Terry stop' than to a formal arrest." Martinez, 479 F.3d at 1296 (quoting Knowles, 535 U.S. at 117). The Tenth Circuit reasoned that, "[a]s in Knowles, Officer Carr did not qualitatively alter the nature of Mr. Martinez's preexisting detention simply by issuing a citation, even under threat of jail if the citation was not accepted." Id.
While Martinez involves the preliminary question of whether conduct rises to the level of a seizure under the Fourth Amendment, the Tenth Circuit's reasoning supports a conclusion that the issuance of a citation is not sufficient, by itself, to elevate an investigatory detention into an arrest for Fourth Amendment purposes. See Petrello v. City of Manchester, 2017 WL 3972477, at *14-15 (D.N.H. Sept. 7, 2017) (holding, based on case law establishing that the issuance of a summons does not constitute a seizure, that the issuance of a summons does not elevate an investigatory stop to a detention requiring probable cause); White v. City of Laguna Beach, 679 F.Supp.2d 1143, 1155 (C.D. Cal. 2010) (citing Martinez and observing that "[n]umerous courts have held that the mere issuance of a citation does not even constitute a seizure, let alone a formal arrest"). Other Tenth Circuit decisions confirm that issuing a verbal warning or citation is consistent with the scope and purpose of an investigatory detention. See, e.g., United States v. Burleson, 657 F.3d 1040, 1045-50 (10th Cir. 2011) (holding that an officer did not exceed the scope of a Terry stop by conducting a warrants check on pedestrians after giving them a verbal warning); United States v. Cervine, 347 F.3d 865, 868 (10th Cir. 2003) ("An officer conducting a routine traffic stop may request a driver's license and vehicle registration, run a computer check, and issue a citation.").
Plaintiffs' reliance on the concept of a "non-custodial arrest" does not alter this conclusion. See Docket No. 30 at 3-5. In the principal case plaintiffs cite, People v. Bland, 884 P.2d 312 (Colo. 1994), the Colorado Supreme Court construed a state statute "mandat[ing] the issuance of a notice or summons" as authorizing non-custodial arrest. Id. at 318. In doing so, the court distinguished between custodial arrests and non-custodial arrests, stating that "the temporary detention required to issue a penalty assessment notice after a defendant is arrested for a misdemeanor traffic offense" constitutes a non-custodial arrest if the defendant is to be released after the detention. Id.
While plaintiffs rely on Bland for the proposition that defendant's issuance of a citation converted William's detention to a non-custodial arrest, thereby triggering a probable cause requirement, Bland is inapposite. First, Bland was construing a state statute, not determining whether the issuance of a citation elevates an investigative detention to an arrest requiring probable cause under the Fourth Amendment. Cf. United States v. Gonzalez, 763 F.2d 1127, 1130 n.1 (10th Cir. 1985) (holding that, notwithstanding state statute's use of the word "arrest" to "describe the events that occur when a police officer issues a speeding ticket to a violator," a routine traffic stop "is more in the nature of an investigative detention than a traditional arrest" for Fourth Amendment purposes). Second, to the extent Bland could be read to support such a conclusion, the Colorado Supreme Court's notion of a "non-custodial arrest" is inconsistent with federal law, which recognizes only three levels of police-citizen interactions under the Fourth Amendment: consensual encounters, investigative detentions, and arrests. United States v. Coca, 704 F. App'x 744, 747 (10th Cir. 2017) (unpublished); see also Daniel J. Steinbock, The Wrong Line Between Freedom and Restraint: The Unreality, Obscurity, and Incivility of the Fourth Amendment Consensual Encounter Doctrine, 38 San Diego L. Rev. 507, 512 & n.15 (2001) (discussing federal courts' recognition of three levels of police-citizen interactions for purposes of the Fourth Amendment — arrests, stops, and consensual encounters — and noting that some scholars have argued for "noncustodial arrests as a fourth category"). As the magistrate judge correctly explained, an arrest is "distinguished from an investigative detention by the involuntary, highly intrusive nature of the encounter," Docket No. 27 at 8 (quoting Lundstrom v. Romero, 616 F.3d 1108, 1120 (10th Cir. 2010)), not by the issuance of a verbal warning or citation. Cf. Martinez, 479 F.3d at 1296; United States v. Leal-Feliz, 665 F.3d 1037, 1043 (9th Cir. 2011) (noting that "Supreme Court case law provides ample support in [various] contexts for distinguishing an arrest from a citation").
Plaintiffs also argue that their detentions exceeded the scope of an investigative detention because defendant issued warnings and a citation without making any effort to "confirm or dispel" his suspicions that plaintiffs were engaging in illegal activity. Docket No. 30 at 5; see Villagrana-Flores, 467 F.3d at 1275 ("[T]he primary considerations bearing upon the reasonableness of a search and seizure are whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." (internal quotation marks omitted) (emphasis added)). As discussed above, however, warnings and citations do not "naturally exceed[ ] the scope of an investigative detention." Docket No. 30 at 5; see Burleson, 657 F.3d at 1045-50. To the extent plaintiffs argue that the stops were unlawful because defendant made no effort to investigate whether plaintiffs had violated the law, they construe the "investigative detention" label too narrowly. A police encounter does not exceed the scope of an investigative detention simply because an officer initiates the stop already knowing information that establishes the person has committed a crime. See Burleson, 657 F.3d at 1042 (officer initiated Terry stop because pedestrians were "walking in the middle of the street, which [was] a violation of a New Mexico statute and a Roswell ordinance"). Moreover, an officer is permitted to engage in certain information-gathering activities not directly related to determining whether an individual was actually engaged in the suspected criminal conduct that initially prompted the stop. See, e.g., id. at 1048 (holding that officer did not impermissibly prolong an investigative detention by conducting a warrants check).
As alleged in this case, defendant informed plaintiffs that they were not permitted to solicit on the side of the roadway, requested their identification, and issued William a written citation for violating Westminster's anti-solicitation ordinance. See Docket No. 7 at 9-11, 12, 14-21, ¶¶ 9, 13, 16. Nothing about this conduct was inconsistent with the scope and purpose of an investigative detention.
In addition to holding that plaintiffs were not arrested for purposes of the Fourth Amendment, the magistrate judge determined that there was no clearly established law showing defendant's conduct to be unlawful. See Docket No. 27 at 11-12. The magistrate judge framed the relevant inquiry as whether "it was clearly established at the time of the[] events that an officer who observes an individual holding a sign adjacent to a highway — without more — does not have reasonable suspicion to conduct an investigative detention for a violation of an anti-solicitation ordinance." Id. at 11.
In their objection, plaintiffs argue that defendant should have known his conduct was unlawful because he did not obtain any information to support the "accusations that either Plaintiff had been seeking `employment, business, contributions, or sales of any kind,'" as required under the Westminster anti-solicitation ordinance. Docket No. 30 at 8; see also Docket No. 32 at 7-9 (arguing that defendant did not obtain any information "necessary to believe" that William had been engaging in unlawful solicitation).
Because plaintiffs have not identified — and the Court has not found — any case holding that an officer who observes an individual holding a cardboard sign adjacent to a highway lacks a reasonable suspicion that the individual is violating an anti-solicitation ordinance, defendant is entitled to qualified immunity. See Wesby, 138 S. Ct. at 590 (emphasizing the need, for purposes of qualified immunity, "to identify a case where an officer acting under similar circumstances was held to have violated the Fourth Amendment" (internal quotation marks and ellipsis omitted)).
For the foregoing reasons, plaintiffs' objection to the magistrate judge's recommendation will be overruled.
As for the unobjected-to portions of the recommendation, in the absence of a proper objection, the district court may review a magistrate judge's recommendation under any standard it deems appropriate. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) ("It does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings"). In this matter, the Court has reviewed the unobjected-to portions of the recommendation and satisfied itself that there is "no clear error on the face of the record." Fed. R. Civ. P. 72(b), Advisory Committee Notes.
For the foregoing reasons, it is
Westminster, Colo. Code of Ordinances § 9-4-1(B)-(C).
