Opinion
Case No. 21-cv-00136-ABJ
2021-11-12
Brett HEMRY, Individually and as Next Friend of F.M.H., Genalyn Hemry, Individually and as Next Friend of F. M. H., and F.M.H., a minor child, Plaintiffs, v. Robert R. COOKE, Brett M. Tillery, and John Doe 1 through John Doe 10, agents and servants of the Sheriff of Park County Wyoming; and Bradley M. Ross, Mehran Azizian, and John Does 11 through 20, agents and servants of the National Park Service, United States Department of the Interior, Defendants.
Robert T. Moxley, Robert T. Moxley PC, Cheyenne, WY, for Plaintiffs. Ewa C. Dawson, Steven Kyle McManamen, Wyoming Attorney General's Office, Cheyenne, WY, for Defendants Robert R. Cooke, Brett M. Tillery. Jeremy A. Gross, United States Attorney's Office, Cheyenne, WY, for Defendants Bradley M. Ross, Mehran Azizian.
Robert T. Moxley, Robert T. Moxley PC, Cheyenne, WY, for Plaintiffs.
Ewa C. Dawson, Steven Kyle McManamen, Wyoming Attorney General's Office, Cheyenne, WY, for Defendants Robert R. Cooke, Brett M. Tillery.
Jeremy A. Gross, United States Attorney's Office, Cheyenne, WY, for Defendants Bradley M. Ross, Mehran Azizian.
ORDER GRANTING IN PART AND DENYING IN PART FEDERAL DEFENDANTS’ MOTION TO DISMISS—ECF NO. 14; GRANTING IN PART AND DENYING IN PART STATE DEFENDANTS’ MOTION TO DISMISS—ECF NO. 15; GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ CORRECTED MOTION FOR LIMITED QUALIFIED IMMUNITY DISCOVERY FROM FEDERAL DEFENDANTS, AND FOR LEAVE TO AMEND—ECF NO. 25; AND GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ CORRECTED MOTION FOR LIMITED QUALIFIED IMMUNITY DISCOVERY FROM STATE DEFENDANTS, AND FOR LEAVE TO AMEND—ECF NO. 26.
Alan B. Johnson, United States District Judge
THIS MATTER comes before the Court on two motions from Defendants and two motions from Plaintiffs. Having considered the filings, applicable law, and being otherwise fully advised, the Court finds:
Federal Defendants’ Motion to Dismiss —ECF No. 14—should be GRANTED in part and DENIED in part.
State Defendants’ Motion to Dismiss —ECF No. 15—should be GRANTED in part and DENIED in part.
Plaintiffs’ Corrected Motion for Limited Qualified Immunity Discovery from Federal Defendants, and For Leave to Amend —ECF No. 25—should be GRANTED in part and DENIED in part.
Plaintiffs’ Corrected Motion for Limited Qualified Immunity Discovery from State Defendants, and For Leave to Amend —ECF No. 26—should be GRANTED in part and DENIED in part.
BACKGROUND
In 2017, local and federal law enforcement authorities were in a state of alert regarding a fugitive wanted for an alleged triple homicide. ECF No. 1 at 5. At that same time, Plaintiffs—Brett Hemry, his wife Genalyn, and their seven-year-old daughter F.M.H.—were vacationing in Yellowstone Park. ECF No. 1 at 6. Mr. Hemry, like the fugitive, has white hair. Id.
Plaintiffs exited through Yellowstone's eastern gates around 8:30 a.m. and headed east in their 2009 Toyota. Id. Their car had a Missouri license plate with the number DN9 F6M. Id. An unknown National Park Service ("Park Service") employee observed Plaintiffs exiting the park, and reported to the Park Service that he or she had "spoken with" the fugitive at Yellowstone's east entrance. Id. This disclosure caused a report to circulate that the fugitive had been seen driving in a white Toyota passenger car with plates from an unknown state bearing the number DN9 F6M. Id.
The Park Service relayed this information with the Park County Sheriff's Department ("Sheriff's Department") and told them to "be on the lookout" for Plaintiffs’ car and license plate. Id. at 7. The Sheriff's Department dispatched a patrol car, manned by Defendant Brett Tillery, towards Yellowstone's east entrance. Id. And roughly forty-minutes later, the Sheriff's Department dispatched a second patrol car, manned by Defendant Robert Cooke. Id.
Around 10:00 a.m., Mr. Hemry observed two National Park Service rangers following him closely. Id. In response, he pulled over. Id. Around 10:15 a.m. The Sheriff's Department was informed that Plaintiffs’ car had pulled into a campground and that "2 Park Rangers [we]re following [Plaintiffs] until deputies arrived." Id. The Park Service rangers—Defendants Bradley Ross and Mehran Azizian—pulled in front of Plaintiffs’ car to prevent it from moving. Id. at 8. They then stepped out of their cars and held Plaintiffs at gunpoint. Id. Using a loudspeaker, the rangers ordered Mr. Hemry to throw his keys out of the car. Id. He complied. Id. They also ordered Plaintiffs to place their hands on the inside roof of the car. Id. Plaintiffs again complied and maintained this position for nearly half an hour with no other communication. Id. As Plaintiffs held this pose, additional Park Service rangers arrived on the scene. Id.
The Sheriff's Department's first patrol car arrived around 10:21 a.m. And the Sheriff's Department's second car arrived roughly ten minutes later. Id. Upon arrival, the sheriff's deputies—Defendants Tillery and Cooke—also drew their weapons and pointed them at Plaintiffs. Id. at 9. Soon after Defendants Tillery and Cooked arrived, an unnamed officer commanded Mr. Hemry to exit the car and walk backwards towards an unnamed officer. Id. Mr. Hemry complied and an unnamed officer handcuffed him and placed him in a law enforcement car. Id. Unnamed officers instructed Mrs. Hemry to do the same. Id. She also complied and unnamed officers handcuffed her and placed her in a separate law enforcement car. Id.
Another thirty minutes or so passed before officers let Mr. Hemry present his identification. Id. After doing so, officers let Plaintiffs go. Id. But during those thirty minutes, unnamed officers kept guns pointed at Plaintiffs’ car—where F.M.H. remained. Id. The encounter ended at 10:52 a.m. Id. And Plaintiffs sued for (1) False Arrest; (2) Excessive Force; and (3) False Imprisonment. Id.
STANDARD OF REVIEW
To survive a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, a claimant "must plead facts sufficient to state a claim to relief that is plausible on its face." Slater v. A.G. Edwards & Sons, Inc. , 719 F.3d 1190, 1196 (10th Cir. 2013) (internal citation and quotation marks omitted). In doing so, the claimant must set forth "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Instead, he must "plead factual content that allows the court to draw the reasonable inference the defendant[s] [are] liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
Plausibility lies somewhere between possibility and probability. A complaint must establish more than a mere possibility that the defendant acted unlawfully but the complaint need not establish that the defendant probably acted unlawfully. See id. So although the Court must accept the factual allegations in Plaintiff's original complaint as true, the Court does not have to accept conclusory allegations. Moffett v. Halliburton Energy Servs., Inc. , 291 F.3d 1227, 1232 (10th Cir. 2002). If after accepting the complaint's well-pleaded factual allegations as true and viewing the allegations in the light most favorable to the nonmoving party, it "appears beyond doubt that the [claimant] can prove no set of facts in support of his claim which would entitle him to review," the Court will grant the moving party's 12(b)(6) motion. Ash Creek Mining Co. v. Lujan , 969 F.2d 868, 870 (10th Cir. 1992).
ANALYSIS
Plaintiffs allege that Park Service rangers and agents, and Sheriff's Department deputies and agents, violated their Fourth Amendment rights by unlawfully arresting them and using excessive force. Defendants ask this Court to dismiss Plaintiffs’ claims because (1) Plaintiffs failed to plead with sufficient particularity; and (2) Defendants are entitled to qualified immunity. This Court reviews Defendants’ defenses in turn, conducting a separate analysis for Federal Defendants—Defendants Ross and Azizian—and State Defendants—Defendants Cooke and Tillery.
A. Specificity
As explained above, to survive a motion to dismiss, a claimant must "plead factual content that allows the court to draw the reasonable inference the defendant[s] [are] liable for the misconduct alleged." Ashcroft , 556 U.S. at 678, 129 S.Ct. 1937. "This requirement of plausibility serves ... to inform the defendants of the actual grounds of the claim against them." Robbins v. Oklahoma , 519 F.3d 1242, 1248 (10th Cir. 2008).
True, "complaints in § 1983 cases against individual government actors pose a greater likelihood of failures in notice and plausibility because they typically include complex claims against multiple defendants." Id. at 1249. But this Court evaluates dismissal in qualified immunity cases the same as it would in any other case. Id. So to overcome a motion to dismiss, a complaint does not have to include "all the factual allegations necessary to sustain a conclusion that [the] defendants violated clearly established law." Id. Instead, it just has to contain "allegations sufficient to make clear the grounds on which the plaintiff is entitled to relief." Id. (internal citation and quotation marks omitted). So the focused question here is whether Plaintiffs pled "facts sufficient to show (assuming they are true) that [Defendants] plausibly violated [Plaintiffs’] constitutional rights, and that those rights were clearly established at the time." Id. Plaintiffs have met their burden as to the named Defendants. But they have not met their burden as to the unnamed Defendants.
1. Federal Defendants Ross and Azizian
Federal Defendants argue Plaintiffs failed to state a claim for relief because they failed to plead specific actions taken by Defendants Ross and Azizian. ECF No. 14-1 at 6. This Court disagrees.
Although Plaintiffs do not name Defendants Ross and Azizian in each of the complaint's paragraphs, a natural reading of the complaint illustrates that Defendants Ross and Azizian are "the Rangers" who first responded to the scene. ECF No. 1 at 7–8. So based on Plaintiffs’ allegations, Defendants Ross and Azizian pulled Plaintiffs’ car off the highway and prevented them from moving. Id. at 8. Upon pulling Plaintiffs over, they also stepped out of their vehicles and pointed guns at Plaintiffs. Id. They then commanded Plaintiffs to place their hands on the inside of the roof of their car. Id. And they kept their guns pointed at Plaintiffs while they waited for the Sheriff's Department to arrive. Id. at 8–9. Assuming these facts, alone, are true, Plaintiffs have pled specific facts sufficient to show Defendants Ross and Azizian plausibly violated Plaintiffs’ constitutional rights and that those rights were clearly established at the time.
Federal Defendants argue that Plaintiffs did not "specifically allege which Defendants pointed guns at them, which Defendants gave them orders over the loud speaker, which ones ordered them out of the car, or which ones handcuffed them and placed them into law enforcement vehicle." ECF No. 14-1 at 6–7. The Court disagrees. Yes, Plaintiffs have not named the specific Defendant who ordered them out of the car, handcuffed them or put them in a law enforcement vehicle. But Plaintiffs did allege who stopped them, blocked the car in, and pointed guns at them.
Plaintiffs alleged, "[a]s soon as the Hemry vehicle was pulled off the highway, two Park Rangers vehicles, which on information and belief plaintiffs allege were occupied, respectively, by the defendants Ross and Azizian, pulled in front of the Hemry vehicle to block it from moving." ECF No. 1 at 8. In the very next section, Plaintiffs continued "[a]s soon as the Park Ranger vehicles had come to a stop, the defendant rangers quickly stepped out of their vehicles with long guns, and pointed the long guns ... directly at Mr. Hemry, his wife and child, in their vehicle." Id. Plaintiffs then alleged that "[u]sing a loudspeaker to communicate with the Hemry family, while they were held at gunpoint, the Rangers ordered Mr. Hemry to throw the car keys outside on the ground, and the family was ordered to place their hands on the inside roof of the car." Id. At no time during this sequence of events did the complaint allege others actors arrived or otherwise were on scene. So although Plaintiffs did not repeat Defendant Ross and Azizians’ names in each paragraph, a natural reading of the complaint illustrates that Plaintiffs were describing Defendants Ross and Azizian.
2. State Defendants Cooke and Tillery
State Defendants argue Plaintiffs failed to state a claim for relief because they failed to plead sufficient specific actions. ECF No. 16 at 6. Again, this Court disagrees.
Based on Plaintiffs’ allegations, the Sheriff's Department dispatched Defendants Tillery and Cooke to Yellowstone's east entrance. ECF No. 1 at 7–8. Defendant Tillery arrived at the scene first around 10:21 a.m. Id. at 8. Defendant Cooke arrived soon after. Id. They then joined in the detention and held Plaintiffs "at gunpoint without objective justification." Id. at 9. Assuming these facts, alone, are true, Plaintiffs have pled specific facts sufficient to show Defendants Tillery and Cooke plausibly violated Plaintiffs’ constitutional rights, and that those rights were clearly established at the time.
State Defendants argue that Plaintiffs did not specify which Defendant told Mr. Hemry to exit the vehicle, handcuffed him behind his back, or placed him in a law enforcement vehicle. ECF No. 16 at 6–7. And they omitted the same about Mrs. Hemry. Id. Fair enough. But failure to name a Defendant in one instance does not detract from the other allegations that Plaintiffs sufficiently pled on the stop and the force used.
3. Unnamed Defendants John Does 1 through 20
Plaintiffs have also sued a slew of unnamed defendants from the Park Service and Sheriff's Department. ECF No. 1. But § 1983 plaintiffs may only "use unnamed defendants," "if they provide[ ] an adequate description of some kind which is sufficient to identify the person involved so process eventually can be served." Roper v. Grayson , 81 F.3d 124, 126 (10th Cir. 1996). So rather than pleading "collective allegations," the complaint must "make clear exactly who is alleged to have done what to whom ...." Robbins v. Oklahoma , 519 F.3d 1242, 1250 (10th Cir. 2008)
Plaintiffs complaint falls short of this standard because they fail to differentiate the allegations against various unnamed officers. ECF No. 1. In fact, in most instances the complaint does not even specify whether the unnamed officer was a state or federal officer. For that reason, all unnamed Defendants are dismissed without prejudice because Plaintiffs have not adequately described them or attribute specific acts to them.
Plaintiffs alleged "one or more of the defendants required the plaintiff Mr. Hemry, at gunpoint, to exit the vehicle and to walk backward toward an officer who handcuffed Mr. Hemry behind his back, and placed him into the back seat of a law enforcement vehicle." ECF No. 1 at 9. Plaintiffs alleged the same about Mrs. Hemry and likewise failed to name the defendant(s) who held her at gunpoint, required her to exit the car, handcuffed her, and placed her in a patrol car. ECF No. 1 at 9. Plaintiffs also alleged "an armed defendant continued to point a long gun at the minor child F.M.H., who remained in the family car." ECF No. 1 at 9. Again, Plaintiffs did not name or otherwise identify this actor.
Because unnamed Defendants are dismissed without prejudice, the rest of this order only addresses claims against Defendants Cooke, Tillery, Ross, and Azizian.
B. Qualified Immunity
"The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Ullery v. Bradley , 949 F.3d 1282, 1289 (10th Cir. 2020) (internal citation and quotation marks omitted). In this way, qualified immunity "protects all but the plainly incompetent or those who knowingly violate the law." Id.
To overcome an asserted defense of qualified immunity, the plaintiff must show (1) the defendant violated a constitutional right, and (2) that right was clearly established at the time the defendant acted. Id. (internal citation omitted). "Ordinarily, in order for the law to be clearly established, 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." Klen v. City of Loveland, Colo. , 661 F.3d 498, 511 (10th Cir. 2011) (internal citation and quotation marks omitted). "Although there does not need to be a prior case with precisely the same facts, [the Court's] inquiry ... must be undertaken in light of the specific context of the case, not as a broad general proposition." Id. (internal citations and quotation marks omitted).
Maresca v. Bernalillo County , 804 F.3d 1301 (10th Cir. 2015), a case about a family arrested in a "felony stop," aids this Court in its inquiry here. There, a couple and their three children were driving back from a family hike when a deputy ("deputy one") decided randomly to follow the family's truck on a routine traffic patrol. 804 F.3d at 1304–05. Deputy one then entered the truck's license plate number into a crime database. Id. But she mistakenly entered the wrong license plate number by one digit. Id. The database returned a report listing the car as stolen. Id. Deputy one then called into dispatch, notifying them that the truck was stolen. Id. at 1305. As deputy one took action, she failed to "notice the considerable mismatch between the description of the stolen car in the ... report (a maroon 2009 Chevrolet sedan with expired plates) and the [family's] truck (a red 2004 Ford pickup truck with current plates." Id. The Tenth Circuit noted that "[t]hese differences [we]re not minor; they [we]re material and obvious." Id. In fact, the report did not match the family's truck in "(1) color, (2) type of vehicle, (3) make, (4) model, (5) year, (6) license plate number, or (7) license plate registration status." Id.
Because Maresca is a Tenth Circuit case it satisfies the "clearly established" prong of this Court's qualified immunity analysis below. See Klen , 661 F.3d at 511.
Still, she and another deputy ("deputy two") began to execute "felony stop" procedures. Id. They stopped the family, "stood behind the open doors of their vehicles, drew their weapons, and aimed them at [the family's truck]." Id. Deputy one then commanded the family to put their hands up in the air. Id. She also ordered the father to "turn off his truck, throw his keys out the window, and exit the truck with his hands in the air." Id. She then ordered him to walk backwards towards the deputies, get on his knees, and lay on the ground. Id. He complied. Id. The deputies repeated this procedure with the mother. Id. She complied. Id.
Once on the ground, the parents told deputies that there had to be a mistake and told the deputies that their children were still in the car. Id. Still, deputy one kept her gun aimed at the family's truck. Id. The deputies then ordered the children to exit the truck in the same manner they had ordered their parents. Id.
Additional deputies arrived and pointed their guns at the family as they were lying on the ground. Id. at 1306. Eventually the deputies handcuffed each family member and locked them in separate law enforcement cars. Id. Between seven and fifteen minutes into the stop, deputy one re-ran the family's license plate, and realized their truck did not match the stolen car's description. Id. at 1306. The family sued, alleging the deputies violated their Fourth Amendment rights to be free from unlawful arrest and excessive force. Id. at 1307. The Tenth Circuit held that the deputies effected an arrest, rather than an investigatory stop. Id. at 1309–10. And that deputy two was entitled to qualified immunity on the plaintiffs’ unlawful arrest claim. Id. at 1311–13. But deputy one was not. Id. The Tenth Circuit also concluded that neither deputy was entitled to qualified immunity on the plaintiffs’ excessive force claim. Id. at 1313–15. This Court explains the Tenth Circuit's reasoning more fully below when analogizing the facts here.
I. False Arrest/False Imprisonment
Plaintiffs first claim that Defendants violated their Fourth Amendment right to be free of seizure absent reasonable suspicion or probable cause. ECF No. 1 at 11. Defendants argue that (1) they conducted a Terry stop not an arrest; and (2) even if it were an arrest, probable cause supported it. ECF No. 14-1 at 9–20; ECF No. 16 at 13–18. Defendants arrested Mr. and Mrs. Hemry. But probable cause supported only Mr. Hemry's arrest, not Mrs. Hemry's. So Defendants are entitled to qualified immunity only on Mr. Hemry's unlawful arrest claim.
"An arrest must be based on probable cause to believe that a person committed a crime, and is distinguished from an investigative detention by the involuntary, highly intrusive nature of the encounter." Maresca , 804 F.3d at 1308–09 (internal citation and quotation marks omitted). But no bright line exists distinguishing between an arrest and investigative detention. Id. at 1309. For example, "[t]he use of firearms, handcuffs, and other forceful techniques generally suggests an arrest." Id. (internal citation and quotation marks omitted). But use of those items and techniques "does not necessarily transfer a Terry detention into a full custodial arrest ... when the circumstances reasonably warrant such measures." Id. So the question here is whether the circumstances warranted Defendants’ actions. They do not.
In Maresca , the Tenth Circuit held that the deputies effected an arrest because the deputies "order[ed] the [family] out of their truck at gunpoint, forc[ed] them to lie face-down on the highway, handcuff[ed] four of them and lock[ed] them in separate patrol cars." Id. It reasoned that the deputies "had no objectively reasonable basis to believe that such forceful measures were necessary" when: (1) the deputies stopped the family in broad daylight; (2) the deputies had no indication that the family was armed and dangerous; and (3) the family "fully cooperated by pulling over and complying with every directive the officers gave." Id. at 1308–10. In reaching this conclusion, the Tenth Circuit relied on United States v. Melendez-Garcia , 28 F.3d 1046, 1050–53 (10th Cir. 1994). Id. at 1310. In Melendez-Garcia , the Tenth Circuit held that a "felony stop—during which officers removed occupants, whom they suspected of drug trafficking, from vehicles at gunpoint, frisked, handcuffed and placed them in separate patrol cars—was an arrest, where, among other factors, the stop occurred on an open highway during the day, officers had no tips or observations that the suspects were armed or violent, and the suspects had pulled their cars to a stop off the road and stepped out of their cars in full compliance with police orders." Id. (citing Melendez-Garcia , 28 F.3d at 1050, 1053 ) (internal quotation marks omitted).
Based on Maresca and Plaintiffs’ allegations, this Court finds Defendants arrested Mr. and Mrs. Hemry. Defendants Ross and Azizian stopped Plaintiffs in broad daylight and blocked their car from moving. ECF No. 1 at 8. Plaintiffs complied and pulled over. Id. Defendants Ross and Azizian then commanded Mr. Hemry to throw his car keys outside the car. Id. Mr. Hemry complied. Id. They then told Plaintiffs to place their hands on the inside roof of the car. Id. Again, Plaintiffs complied. Id. And they maintained that position, with no ability to communicate, and no notice of the purpose of the detention for nearly half an hour. ECF No. 1 at 8. Despite this compliance, Defendants Ross and Azizian continued to hold Plaintiffs at gunpoint throughout the stop which lasted longer than the seven to fifteen minute stop in Maresca . Id. Once Defendants Cooke and Tillery arrived, they joined in Plaintiffs’ detention. ECF No. 1 at 9. And they also held Plaintiffs at gunpoint. ECF No. 1 at 9. Later, unnamed officers removed Mr. and Mrs. Hemry from their car at gunpoint, handcuffed them, and placed them in separate law enforcement cars. Id. at 9.
Because officers did not remove F.M.H. from Plaintiffs’ car at gunpoint, handcuff her, or place her in a separate law enforcement car, Defendants did not arrest F.M.H. See Maresca , 804 F.3d at 1309.
Defendants argue these procedures were necessary because they believed Mr. Hemry was a fugitive wanted for a triple homicide. ECF No. 14-1 at 11. In making this argument, they cite a case in which the Tenth Circuit held that the detention of a murder suspect reported to be armed and dangerous was an investigatory stop, not an arrest. See United States v. Merritt , 695 F.2d 1263, 1272–73 (10th Cir. 1982). But in Merritt , law enforcement knew the suspect had "many weapons" at the residence where he was supposed to be staying. Id. at 1272 (emphasis added). This "confirm[ed] the suspicion that [the suspect], and others he was with, might well be armed." Id.
The circumstances here are different from Merritt . Defendants had no tips or observations that Plaintiffs were armed and dangerous. The unknown park service employee who observed Plaintiffs exiting the park, reported to the Park Service that he or she had "spoken with" the fugitive at Yellowstone's east entrance. ECF No. 1 at 6. Nothing in the report suggested that the employee saw Plaintiffs with any weapons. And no pleadings before this Court suggests Defendants Ross, Azizian, Cooke or Tillery observed any weapons during the stop. Thus, the circumstances of this case are more like Maresca than Merritt . Because of the actions Defendants took to effect the stop and because this case satisfies two of the three factors relied on in Maresca —Defendants stopped Plaintiffs in broad daylight and Plaintiffs fully cooperated with the officers’ demands—Defendants arrested Mr. and Mrs. Hemry.
Second, this Court concludes that probable cause supported Mr. Hemry's arrest, but not Mrs. Hemry's. "Probable cause exists only if, in the totality of the circumstances, the facts available to the officers at the moment of the arrest would warrant a person of reasonable caution to believe that an offense has been committed." Maresca , 804 F.3d at 1310 (internal citation and quotation marks omitted). "In the qualified immunity context, [the Tenth Circuit] ask[s] whether an objectively reasonable officer could conclude that the historical facts at the time of the arrest amount to probable cause." Id. (internal citation and quotation marks omitted). In conducting this analysis an officer does not always need to be correct. Id. But an officer does have to be reasonable. Id. So "law enforcement officials who reasonably but mistakenly conclude that probable cause is present are still entitled to immunity." Hunter v. Bryant , 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (internal citation and quotation marks omitted).
In Maresca , the Tenth Circuit held that deputy one—who had the computer screen in front of her with the stolen vehicle's description—had readily available exculpatory evidence that the stolen vehicle did not match the family's truck in style, make, model, year, color, license plate number, or registration status. 804 F.3d at 1310–11. So "it was unreasonable for [deputy one] to arrest the [family] ... based upon all the circumstances of the case and, in particular, [deputy one's] failure to use readily available information—already on the computer screen in front of her and from the dispatcher—to verify that the [family's truck] was reportedly stolen before arresting them." Id. at 1311. For that reason, she was not entitled to qualified immunity on the family's unlawful arrest claim. Id. at 1312.
In contrast, the Tenth Circuit held that deputy two was entitled to qualified immunity because deputy two relied on deputy one's statement that the family's truck was stolen. Id. The Tenth Circuit explained that a "good faith defense shields objectively reasonable good faith reliance on the statements of a fellow officer...." Id. (internal citation and quotation marks omitted). And "[t]his rule makes sense, because effective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and ... officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information." Id. (internal citation and quotation marks omitted). Deputy two "did not have a computer screen in front of him describing the stolen vehicle and [he] could not see the [family's] plate at the time [deputy one] first made the stop." Id. So he had "no reasonable opportunity to investigate on his own and double-check the accuracy of [deputy one's] conclusion before initiating the arrest." Id.
1. Federal Defendants
When Defendants Ross and Azizian pulled in front of Plaintiffs’ car and initiated the arrest, the facts available to them would warrant a person of reasonable caution to believe that an offense had been committed. The Park Service employee that identified Mr. Hemry as the fugitive, described him as driving a white Toyota with license plate number DN9 F6M. A report with this information circulated. And Defendants Ross and Azizian pulled over Plaintiffs’ car, which matched the report's description exactly —style, make, color, and license plate number. So Federal Defendants, unlike Maresca deputy one, did not have readily available exculpatory evidence in front of them upon initiating the arrest.
Plaintiffs have not pled or otherwise suggested that this Park Service report had any indicia of unreliability. So Defendants Ross and Azizian are more like Maresca deputy two, who did not have a reasonable opportunity to investigate on their own or double-check the accuracy of another's conclusion before initiating the arrest. Maresca , 804 F.3d at 1312. Although Defendants Ross and Azizian may have acted on a mistaken fact, it was a reasonable one. So, Federal Defendants Ross and Azizian are entitled to qualified immunity on Mr. Hemry's unlawful arrest/false imprisonment claim.
The same does not hold true for Mrs. Hemry. The Park Service employee who reported seeing the fugitive did not report seeing a female accomplice. ECF No. 1 at 6. Nor did the report that went out. Id. Nothing beyond Mrs. Hemry's presence in the car suggests that Federal Defendants had any basis to believe that Mrs. Hemry had committed an offense or was affiliated with a wanted fugitive. So no objectively reasonable officer could conclude that probable cause existed to arrest Mrs. Hemry. So Federal Defendants Ross and Azizian are not entitled to qualified immunity on Mrs. Hemry's unlawful arrest/false imprisonment claim at this stage of proceedings.
2. State Defendants
According to Plaintiffs’ complaint, the Park Service told the Sheriff's Department to be on a lookout for a white Toyota passenger car, state unknown, with a license plate number of DN9 F6M. ECF No. 1 at 7. This served as a first notice to the Sheriff's Department. Later, the Sheriff's Department dispatch was informed that Plaintiffs pulled into a campground and that "[two] Park Rangers [we]re following [Plaintiffs] until deputies arrive[d]." ECF No. 1 at 7. This served as a second notice to the Sheriff's Department.
Defendants Cooke and Tillery later arrived on scene and saw the vehicle matching the first notice's description. ECF No. 1 at 8. They then joined the detention described by the second notice. ECF No. 1 at 9. Defendants Cooke and Tillery thus may have acted on a mistaken fact, but it was a reasonable one. The Park Service told the Sheriff's department twice that this car may contain a fugitive wanted for a triple homicide. And Plaintiffs have not alleged that these communications had any indicia of unreliability. So State Defendants Cooke and Tillery are entitled to qualified immunity on Mr. Hemry's unlawful arrest/false imprisonment claim because probable cause supported the arrest.
But again, the same does not hold true for Mrs. Hemry. No one mentioned Mrs. Hemry in either of the two notices. And nothing beyond her mere presence in the car suggests that State Defendants had any basis to believe that Mrs. Hemry had committed an offense or was affiliated with a wanted fugitive. So, once again, no objectively reasonable officer could conclude that probable cause existed to arrest Mrs. Hemry. So State Defendants Cooke and Tillery are thus not entitled to qualified immunity on Mrs. Hemry's unlawful arrest/false imprisonment claim at this stage of proceedings.
3. False Imprisonment
Plaintiffs also allege that Defendants falsely imprisoned them. ECF No. 1 at 13–14. This claim overlaps with Plaintiffs’ false arrest claim. See Wallace v. Kato , 549 U.S. 384, 388–89, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) ("False arrest and false imprisonment overlap; the former is a specifies of the later."). And so the same false arrest analysis applies to Plaintiffs’ false imprisonment claims. Id. (referring to claims for false arrest and false imprisonment "together as false imprisonment"). For that reason, Defendants are entitled to qualified immunity on Mr. Hemry's false imprisonment claim, but not Mrs. Hemry's. And moving forward this Court will refer to the two claims—Plaintiffs’ claims one and three—together as a claim for false arrest.
II. Excessive Force
Plaintiffs next allege that Defendants used excess force based on the extended period of time Defendants pointed deadly weapons at them. Id. Defendants counter their use of force was reasonable to maintain the status quo. ECF No 14-1 at 22–24; ECF No. 16 at 18–20. This Court agrees with Plaintiffs.
"[I]n cases involving claims of both unlawful arrest and excessive force arising from a single encounter, it is necessary to consider both the justification the officers had for the arrest and the degree of force they used to effect it." Cortez v. McCauley , 478 F.3d 1108, 1127 (10th Cir. 2007). The Tenth Circuit requires that officers "articulate specific justifications for uses of force ..." Id. at 1131.
A police officer violates an arrestee's clearly established Fourth Amendment right to be free of excessive force during an arrest if the officer's arresting actions were not objectively reasonable in light of the facts and circumstances confronting him. This court assesses the reasonableness of an officer's conduct from the perspective of a reasonable officer on the scene, acknowledging that the officer may be forced to make split-second judgments in certain difficult circumstances. This reasonableness standard—which is "clearly established" for the purposes of § 1983 actions—implores the court to consider factors including
the alleged crime's severity, the degree of potential threat that the suspect poses to an officer's safety and to others’ safety, and the suspect's efforts to resist or evade arrest. Because the reasonableness inquiry overlaps with the qualified immunity analysis, a qualified immunity defense is of less value when raised in defense of an excessive force claim.
Olsen v. Layton Hills Mall , 312 F.3d 1304, 1313–14 (10th Cir. 2002). "In considering the reasonableness of a particular force, personal security and individual dignity interests, particular of non-suspects, should also be considered." Maresca , 804 F.3d at 1313 (internal citation and quotation marks omitted). "These interests are particularly vulnerable when the officers’ use of force is directed at children ...." Id.
For example, "[w]here a person has submitted to the officers’ show of force without resistance, and where an officer has no reasonable cause to believe that person poses a danger to the office or to others, it may be excessive and unreasonable to continue to aim a loaded firearm directly at that person, in contrast to simply holding the weapon in a fashion ready for immediate use." Id. at 1314 (internal citation and quotation marks omitted). But "[p]ointing a firearm directly at a child calls for even greater sensitive to what may be justified or what may be excessive under all the circumstances." Id. (internal citation and quotation marks omitted).
In Maresca , evidence showed that the officers pointed guns directly at the family—including the children. Id. at 1313. Evidence also existed that "the deputies continued to aim their weapons at [the family's truck] after [the father] and [the mother] were removed from the vehicle and after the officers had been informed by the [parents] that their children were still in the truck." Id. at 1313–14. The Tenth Circuit held that these facts precluded summary judgment based on Holland ex rel. Overdorff v. Harrington , 268 F.3d 1179, 1196–97 (10th Cir. 2001). Id. at 1314. In Holland , the Tenth Circuit denied qualified immunity when officers "held each of the plaintiffs-appellees at gunpoint, initially forcing several of them to lie down on the ground for ten to fifteen minutes ...," despite the plaintiffs’ full compliance with the officers’ orders. 268 F.3d at 1196–97.
Here, like in Maresca , Defendants Ross, Azizian, Cooke and Tillery, at some point, drew guns and aimed them at Plaintiffs—including F.M.H., a seven-year-old child. Plaintiffs also allege that after Mr. and Mrs. Hemry were removed from the car and handcuffed, officers continued to aim their weapons at Plaintiffs’ car with F.M.H. inside. ECF No. 1 at 9. And Defendants held Plaintiffs at gunpoint for far longer than the seven to fifteen minutes in Maresca or the ten to fifteen minutes in Holland .
As for Federal Defendants, Plaintiffs’ complaint alleges that Defendant Ross and Azizian "quickly stepped out of their vehicle with long guns, and pointed the long guns ... directly at Mr. Hemry, his wife and child, in their vehicle." ECF No. 1 at 8.
As for State Defendants, Plaintiffs’ complaint alleges Defendant Cooke and Tillery arrived at the scene and "joined into the detention and also trained firearms upon the Hemry family, holding them at gunpoint without objective justification." ECF No. 1 at 9.
True, other allegations about holding Plaintiffs at gunpoint do not specify which Defendant is acting. See ECF No. 1 at 9 ("[O]ne or more of the defendants required the plaintiff Mr. Hemry, at gunpoint, to exit the vehicle and to walk backwards toward an office who handcuffed Mr. Hemry behind his back, and placed him into the back seat of a law enforcement vehicle."). But even without these allegations, Plaintiffs have sufficiently alleged that Defendants Cooke, Tillery, Ross and Azizian, pointed guns at Plaintiffs during the detention, despite Plaintiffs’ full compliance.
Not every paragraph of the complaint specifically names Defendants Ross, Azizian, Cooke or Tillery. For example, the complaint alleges that "an armed defendant continued to point a long gun at the minor child." ECF No. 1 at 9. The complaint also does not specify which officer asked Mr. and Mrs. Hemry to walk backwards, handcuffed them, or placed them in separate law enforcement vehicles. ECF No. 1 at 9. Still, even if Defendants Ross, Azizian, Cooke and Tillery were not the ones who pointed their weapons directly at the family throughout the arrest or the ones who handcuffed and placed Mr. and Mrs. Hemry in separate vehicles, it is clearly established "that a law enforcement official who fails to intervene to prevent another law enforcement officer's use of excessive force may be liable under § 1983." Maresca , 804 F.3d at 1314 (citing Mick v. Brewer , 76 F.3d 1127, 1136 (10th Cir. 1996) ). In Maresca , the Tenth Circuit denied the officers qualified immunity, even if they were not the ones who primarily pointed their guns at the family, because a jury could find that other officers were liable "for not taking steps to stop the other deputies from using excessive force." Id. For the same reasons here, none of Defendants are not entitled to qualified immunity on Plaintiffs’ excessive force claims—both because of their own use of guns and their failure to intervene to prevent other officers’ use of excessive force.
"The display of weapons, and the pointing of firearms directly at persons inescapably involves the immediate threat of deadly force. Such a show of force should be predicated on at least a perceived risk of injury or danger to the officers of others, based upon what the officers know at that time." Holland , 268 F.3d at 1192. And based on the pleadings, Plaintiffs fully complied with Defendants’ orders, and Defendants had full control of the situation. So, this case is like Maresca and Holland . And just like the Maresca and Holland officers, Defendants are not entitled to qualified immunity on Plaintiffs’ excessive force claim at this stage of the proceedings.
C. Limited Qualified Immunity Discovery
Plaintiffs also moved for limited qualified immunity discovery and for leave to amend—ECF Nos. 25 & 26. In these motions, Plaintiffs acknowledge that Defendants’ arguments in support of their motions to dismiss include "an asserted lack of detail." ECF No. 25 at 2; ECF No. 26 at 2. Plaintiffs argue that without discovery from Defendants, they cannot give specific facts on who did what to whom. Id.
In support of their arguments, Plaintiffs rely on Anderson v. Creighton , 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). In Anderson , the Supreme Court specified that when the parties dispute actions taken "then discovery may be necessary before ... motion[s] for summary judgment on qualified immunity grounds can be resolved." Id. at 641 n.6, 107 S.Ct. 3034. But Plaintiffs’ request for limited discovery comes on a motion to dismiss and does not arise out of a dispute over actions taken. And unlike a motion for summary judgment, a motion to dismiss tests the legal sufficiency of a complaint and requires no discovery. Ashcroft v. Iqbal , 556 U.S. 662, 674–75, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; See Workman v. Jordan , 958 F.2d 332, 336 (10th Cir. 1992) ("If the actions are those that a reasonable person could have believed were lawful, defendants are entitled to dismissal before discovery."). Thus, Plaintiffs are not entitled to more discovery to aid in the Court's resolution of Defendants’ motions to dismiss.
Defendants argue this case is like Johnson v. Spencer , 950 F.3d 680, 721 (10th Cir. 2020), so this Court should deny Plaintiffs’ leave to amend. It is not. In Johnson , the plaintiff responded to defendants’ motion to dismiss by stating,
if the Court disagrees [with his arguments against dismissal], Plaintiff respectfully hereby requests leave to file and serve a First Amended Complaint during the pleading deficiencies.
Id. at 721. The Tenth Circuit criticized this approach for failing to cite specific filings and a failure to move for leave to file an amended complaint. Id. Indeed the Tenth Circuit characterized the plaintiffs request as a "drive-by request[ ] to amend the complaint" that did "not rise to the status of a motion." Id. Plaintiffs here filed true motions for limited discovery and leave to amend. There were not drive-by requests.
But because Defendants are not entitled to dismissal on qualified immunity grounds on Plaintiffs’ excessive force claims or Mrs. Hemry's unlawful arrest claim, discovery can move forward on these remaining claims. See Workman v. Jordan , 958 F.2d 332, 336 (10th Cir. 1992) ("Discovery should not be allowed until the court resolves the threshold question whether the law was clearly established at the time the allegedly unlawful action occurred ... If the actions are not those that a reasonable person could have believed were lawful, then discovery may be necessary before a motion for summary judgment on qualified immunity grounds can be resolved. However, any such discovery must be tailored specifically to the immunity question.").
Still, this Court will not grant Plaintiffs leave to file an amended complaint at this time because Plaintiffs failed to comply with the Local Rules. The District of Wyoming's Local Civil Rule 15.1—governing Motions to Amend—requires "[m]otions to amend pleadings pursuant to Fed. R. Civ. P. 15(a) shall be accompanied by the proposed amended complaint as an attachment." Plaintiffs did not attach a proposed amended complaint to their motion for leave to amend. So this Court denies Plaintiffs’ motion for failure to comply with the Local Rules.
CONCLUSION
On specificity, this Court dismissed without prejudice all unnamed Defendants because Plaintiffs have not adequately described them or attributed specific acts to them.
On qualified immunity, Defendants are entitled to qualified immunity on Mr. Hemry's false arrest claim. But they are not entitled to qualified immunity on Mrs. Hemry's false arrest claim at this stage in the proceedings. And Defendants are not entitled to qualified immunity on Plaintiffs’ excessive force claim at this stage in the proceedings.
On discovery, Plaintiffs are not entitled to additional discovery to aid in the Court's resolution of Defendants’ motions to dismiss. But they are entitled to limited discovery moving forward.
On leave to amend, this Court will not grant Plaintiffs leave to amend because they failed to comply with Local Rule 15.1.
For these reasons, it is ORDERED Federal Defendants’ Motion to Dismiss —ECF No. 14—is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED State Defendants’ Motion to Dismiss —ECF No. 15—is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED Plaintiffs’ Corrected Motion for Limited Qualified Immunity Discovery from Federal Defendants, and For Leave to Amend —ECF No. 25—is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED Plaintiffs’ Corrected Motion for Limited Qualified Immunity Discovery from State Defendants, and For Leave to Amend —ECF No. 26—is GRANTED in part and DENIED in part.