Harris v. Romero

MARQUISE D. HARRIS and DEDRICK D. HARRIS, Plaintiffs, v. MARK ROMERO, JESSY AVENDANO, SERGEANT MARTINEZ,ROBERT J. FOSTER, EMILY CAPSER, OFFICER NOVOTNY,CHIEF PAZEN, DIK KUSHDILLIAN, BETH MCCANN,JOHN DAVIDSON, GINEN HATTER-PEREZ, JAMES DIXION, OFFICER REINER,OFFICER JENKINS, CITY AND COUNTY OF DENVER, and JOHN DOE, Defendants.

Civil Action No. 20-cv-01396-RM-NYW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

March 29, 2021

Judge Raymond P. Moore

ORDER

This matter is before the court on two motions:

(1) Denver Defendants' Motion to Dismiss, In Part, Plaintiffs' Complaint Pursuant To Fed.R.Civ.P. 12(B)(6) [Doc. #1] ("Motion for Partial Dismissal") [#31], filed August 17, 2020]; and (2) Plaintiffs' Joint Motion to Amend Complaint ("Motion to Amend") [#49], filed November 2, 2020].

Having reviewed the Motions and the associated briefing and the entire docket, this Court finds that oral argument will not materially assist in their resolution. Upon review, the Joint Motion to Amend is GRANTED and Defendants' Motion for Partial Dismissal is GRANTED IN PART and DENIED IN PART.

FACTUAL BACKGROUND

The following facts are drawn from the Complaint and are taken as true for the purposes of this Memorandum Opinion and Order. Marquise D. Harris ("Mr. M. Harris") and his co-plaintiff, Dedrick D. Harris ("Mr. D. Harris" and collectively with Mr. M. Harris, "Plaintiffs"), initiated this action on May 15, 2020, by filing a pro se Complaint against several named defendants and one unknown Doe defendant.¹ See generally [#1].² According to Mr. M. Harris, he was playing basketball on November 6, 2018 when, unbeknownst to him, the Denver Police Narcotics Unit were conducting surveillance in the area of East Colfax Avenue and North Xanthia Way in Denver, Colorado. [Id. at ¶ 12]. Defendant Mark Romero ("Defendant Romero" or "Detective Romero") radioed other Denver Narcotics officers, falsely claiming that he hadwitnessed Mr. M. Harris and another Black man engage in two drug transactions and Mr. M. Harris counting a large amount of cash. [Id. at ¶¶ 15-17]. Though Defendants Jesse Avendano ("Defendant Avendano" or "Detective Avendano"), Defendant Johny Martinez ("Defendant Martinez" or "Sergeant Martinez"); Officer Robert J. Foster ("Defendant Foster" or "Officer Foster"), Defendant Emily Capser ("Defendant Capser" or "Officer Capser"); and Officer John Doe were all in the area, none witnessed these purported drug transactions. [Id. at ¶ 20]. Nevertheless, Detective Romero yelled "He's got a gun," which resulted in Defendants Romero, Avendano, Martinez, Foster, Capser, and Doe pursuing him on foot. [Id. at ¶ 27]. While in pursuit, Defendant Foster perpetuated this falsehood by also yelling "he has a gun," [id. at ¶ 28], and though Mr. M. Harris responded that he was not armed, Defendants Romero, Avendano, Martinez, Foster, Capser, and Doe all ignored him. [Id. at ¶ 30].

The Denver Police officers caught Mr. M. Harris, and during his apprehension, Defendant Foster, Romero, Capser, Martinez, Avendano, and Doe struck him in the face and head with their "fists, kicks, knees, a radio and flash light." [Id. at ¶ 32]. Defendants Foster and Romero also rammed Mr. M. Harris's face, head, and upper torso into a nearby parked vehicle. [Id. at ¶ 34]. Defendant Capser grabbed Mr. M. Harris's right arm and hand and twisted it until it dislocated, and landed a hard knee thrust to his rib cage area, causing breakage and several abrasions. [Id. at ¶ 35]. Defendant Foster applied a chokehold to Mr. M. Harris and Defendant Romero slammed him face first onto the pavement, knocking him unconscious. [Id. at ¶ 36]. None of the Denver Police officers present intervened to protect Mr. M. Harris from Defendant Foster, Romero, and Capser's use of excessive force. [Id. at ¶ 40]. Defendants Romero, Foster, Avendano, Capser, Martinez, and Doe then all conducted warrantless searches of Mr. M. Harris, including of his anus,anal cavity, gluteus maximus, and underwear, as well as his pants and jacket pockets, during his stop and arrest. [Id. at ¶¶ 56, 59]. No drugs were ever found on Mr. M. Harris. [Id. at ¶ 75].

Mr. M. Harris further alleges that the individually-sued Defendant Officers falsified statements in their police reports about the incidents and Mr. M. Harris's injuries. [Id. at ¶ 44]. He also contends that Defendants Romero, Foster, Capser, Doe, Martinez and Avendano confiscated cell phones and cameras that lay witnesses were using to record the incident, and Defendant Foster forcibly removed a witness's cell phone and threatened her with jail time for interference with police. [Id. at ¶ 47]. Mr. M. Harris alleges that Defendants Avendano, Capser, Doe, Foster, Martinez, and Romero each subsequently conducted warrantless searches of his cell phones, including obtaining and searching transactional records of each of Mr. M. Harris's two cell phones. In support of his allegations, Mr. M. Harris includes photographs that appear to be derived from body worn camera footage and refers to that footage, along with photographs taken by a security application on his cell phone, in the Complaint. See e.g. [Id. at ¶¶ 43, 47, 78-79]. Finally, Mr. M. Harris avers that the individually-sued Officers falsely alleged that he used the alias name "Dedrick Harris" while under custodial interrogation. [Id. at ¶ 139].

This illegal conduct culminated in Mr. M. Harris's arrest for criminal charges of "Offense # 12899-0 Police Interference and Offense # 24803-0 False Information." [Id. at ¶ 86]. Mr. M. Harris contends that on the way to the police station, Defendants Foster and Capser became irate when he refused to provide them with the password to his cell phones, and Mr. M. Harris asked whether they had authority for such search. [Id. at ¶¶ 88-91]. Defendants Foster and Capser then beat Mr. M. Harris with their fists, baton and a radio; forcibly removed him from the back seat of their squad car; and fashioned a makeshift noose and placed it around his neck and tightened and/oryanked on it. [Id. at ¶ 91]. Mr. M. Harris subsequently filed a complaint with the Internal Affairs Bureau immediately after his release from the Denver Detention Center. [Id. at ¶ 107].

Mr. M. Harris alleges that Defendants Romero, Foster, Capser, and Martinez each falsified information during the investigation into their conduct. [Id. at 111-114]. He further contends that "Individual Defendants and other officers, including Internal Affairs Sgt. James Dixon ("Defendant Dixon" or "Sergeant Dixon") colluded with each other in preparing their series of cover up reports." [Id. at ¶ 119]. Mr. M. Harris further alleges that Defendant Foster then conspired with Defendants Kenneth Reiner ("Defendant Reiner" or "Officer Reiner"), Capser, Defendant Jeremy Jenkins ("Defendant Jenkins" or "Officer Jenkins"), and Chelsea Novotny ("Defendant Novotny" or "Officer Novotny") to retaliate against him. Specifically, Plaintiffs allege that on March 1, 2019, when Mr. D. Harris was parked at Joes Auto/A1 Car Rental where Mr. M. Harris worked, police pulled behind him and charged his vehicle, believing he was Mr. M. Harris. [Id. at ¶¶ 143, 145]. Defendant Foster then violently removed Mr. D. Harris from the vehicle, and Defendants Reiner and Foster beat Mr. D. Harris with their fists and used painful pressure point techniques on him. [Id. at ¶¶ 146-47]. Defendants Capser and Novotny then arrived at the scene, exited their squad cars, and joined in the beating with their fists and kicks before falsely arresting him. [Id. at ¶ 150]. Defendants Foster, Reiner, and Capser also conducted warrantless searches on Mr. D. Harris's cell phone and had his vehicle towed to the police impound lot. [Id. at ¶¶ 165-66].

After learning that they had mistaken Mr. D. Harris for Mr. M. Harris, Defendants Foster, Reiner, Capser, and Jenkins each wrote false statements alleging that Mr. D. Harris ignored commands to stay inside his vehicle and that Mr. D. Harris resisted officers. [Id. at ¶¶ 158-59]. Based on these false allegations, the Denver District Attorney charged Mr. D. Harris withObstruction of a Peace Officer. [Id. at ¶ 162]. Plaintiffs allege that City Attorney Ginene Hatter-Perez ("Defendant Hatter-Perez"), along with the Denver Police officers, the City, and Dikran Kushdilian ("Defendant Kushdilian") conspired to destroy video surveillance records from Halo Street cameras in the area of North Xanthia street in order to cover-up the baseless stop and use of force against Mr. M. Harris. [Id. at ¶ 184]. During the pendency of the respective criminal actions, Mr. M. Harris contacted Defendant Beth McCann ("Defendant McCann") to complain that the Defendant Officers conspired to convict him using perjured evidence and that the stops were racially motivated and the stop of Mr. D. Harris was in retaliation for Mr. M. Harris's internal affairs complaints. [Id. at ¶ 189].

Ultimately, the charges against Mr. M. Harris were dismissed by the Honorable Gary Jackson [id. at ¶ 185] and the charges against Mr. D. Harris were dismissed by the Denver District Attorney [id. at ¶ 186]. Criminal Investigator James Davidson ("Defendant Davidson") and Defendant McCann then conspired to vindicate the Defendant Officers by swiftly closing the investigation without charging any officers and falsely stating that the surveillance video from the East Colfax Convenience Store lacked a time and date stamp. [Id. at ¶ 193].

PROCEDURAL BACKGROUND

Plaintiffs initiated this action on May 15, 2020. [#1]. Plaintiffs allege that Defendants violated their First, Fourth, and Fourteenth Amendment rights when officers allegedly conducted a warrantless search of, assaulted, and arrested Mr. M. Harris after fabricating evidence during "heavy narcotics surveillance" of the general area in which Mr. M. Harris was playing basketball, and Mr. D. Harris in retaliation of Mr. M. Harris's internal affairs complaints, after mistaking him for Mr. M. Harris. See generally [#1]. They...