Case 1:22-cv-01343-PAB-NRN Document 28 Filed 10/19/22 USDC Colorado Page 1 of 16

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 22-cv-01343-PAB-NRN

MARQUIS DOMINICK, BRETT RIOS, ALEX HICKMAN, TASHARI SELLERS, RAYMOND

SCHWAB, JESSE FRIEDMAN, SUSAN McKILLIPS, RYAN KEHOE, ADAM BENTCH,
PATRICIA KOO, ISIS USBORNE, KRISTEN KLOTZER, and JOE SZUSZWALAK,

Plaintiffs,
v.

THE CITY AND COUNTY OF DENVER, a municipal entity;

PATRICK PHELAN, in his individual capacity;
JOHN & JANE DOES 1-100, in their individual capacities,

Defendants.

DEFENDANT DENVER’S MOTION TO DISMISS PURSUANT TO RULE 12(b)(6)

Defendant City and County of Denver (“Denver”), through undersigned counsel, pursuant

to Fed. R. Civ. P. 12(b)(6), hereby moves to dismiss Plaintiffs’ Amended Complaint (Doc. 18):

CONFERRAL

The parties conferred, and Plaintiff opposes the relief requested in this motion.

INTRODUCTION

In an Amended Complaint of 93 pages and 608 numbered paragraphs, thirteen plaintiffs in

this action allege constitutional violations suffered at various times and places during the George

Floyd protests in late May and early June 2020. Some of these plaintiffs experienced uses of force

of varying levels and by varying munition type while protesting; two were arrested for park curfew

violations; and one experienced force while not protesting. The different factual allegations of each
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plaintiff are summarized in this chart:

Plaintiff Doc. 18¶¶ Dates Force Allegedly Used Other Allegations

Dominick 221 – 248 5/30/20 Tear gas, flash bang, pepper
spray, pepper balls
Rios 249 – 280 6/1/20 Rubber bullet, flash “tackled”during
bang/concussion grenade, arrest for curfew
exposure to chemical irritants violation
Hickman 281 – 294 5/31/20 Rubber bullet (not protesting)
Sayers 295 – 313 5/29/20 Guns pointed at him Park curfew arrest
Schwab 314 – 337 5/30/20 Rubber bullet
Friedman 338 – 375 5/28 to Pepper ball, rubber bullet,
5/31/20 exposure to chemical irritants,
flash bang, tear gas
McKillips 376 – 389 5/30 & 6/1/20 Pepper spray, tear gas
Kehoe 390 – 401 5/28 & Tear gas, exposure to
5/30/20 chemical irritants, flash bang,
unknown to chest
Bentch 402 – 430 5/30/20 Tear gas, exposure to
chemical irritants
Koo 402 – 430 5/30/20 Tear gas, exposure to
chemical irritants, shot with
unknown less lethal in leg
Usborne 431 – 447 5/28/20 Bear mace
Klotzer 448 – 477 5/28 & Pepper ball, mace, tear gas Park curfew arrest,
5/29/20 handcuffs tight
Szuswalak 478 – 491 5/28 & Pepper ball, exposure to
5/30/20 chemical irritants

Without identifying any specific officers who allegedly committed constitutional

violations, Plaintiffs seek to hold Denver liable under 42 U.S.C. § 1983. But it has been long

established that local governments may not be sued under § 1983 on a theory of respondeat

superior. “Instead, local governing bodies can be sued directly only where ‘the action that is

alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or

decision officially adopted and promulgated by that body's officers.’” Hernandez v. City & Cnty.

of Denver, No. 21-CV-01538-PAB-MEH, 2022 WL 3597452, at *3 (D. Colo. Aug. 23, 2022)

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(quoting Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690 (1978)). Plaintiffs must allege

the required elements for municipal liability through plausible and non-conclusory factual

allegations. For the reasons set forth below, Plaintiffs’ allegations fail to reach the plausibility

standard to survive a Rule 12(b)(6) challenge, and the claims against Denver must be dismissed.

STANDARD OF REVIEW

To survive a Rule 12(b)(6) challenge, a complaint must contain enough allegations of fact,

taken as true, “to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 570 (2007). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders

‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Twombly, 550 U.S. at 557). “Where a complaint pleads facts that are ‘merely

consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and

plausibility of ‘entitlement to relief.’” Iqbal, 556 U.S. at 679 (quoting Twombly, 550 U.S. at 557).

ARGUMENT

I. Plaintiffs’ Fourteenth Amendment Due Process and Selective Enforcement Claims do not
State Plausible Claims of Constitutional Violations by Individual Defendants
Any claims against Denver necessarily fail where Plaintiffs fail to plausibly allege an

underlying constitutional violation by one or more of Does 1–100. Sexton v. City of Colorado

Springs, 530 F. Supp. 3d 1044, 1068 (D. Colo. 2021).

A. Element not met: the Protest Plaintiffs have not identified a separate claim based
on the Fourteenth Amendment.
“[W]here a particular Amendment provides an explicit textual source of constitutional

protection against a particular sort of government behavior, that Amendment. . . must be the guide

for analyzing these claims.” Huff v. Reeves, 996 F.3d 1082, 1091 (10th Cir. 2021). Here, the Protest
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Plaintiffs 1 each allege they were subjected to pre-arrest, excessive force. (Doc. 18 at ¶¶580-81.)

They attempt to transform this claim into a separate, distinct procedural due process claim by

rephrasing the constitutional violation as a failure to provide proper notice or egress routes prior

to deploying force. (Id. at ¶¶558-73.) But this Court must analyze pre-arrest, excessive force claims

arising from a seizure “under the Fourth Amendment rather than through some other (e.g.,

Fourteenth Amendment) constitutional lens[.]” Cortez v. McCauley, 478 F.3d 1108, 1145 (10th

Cir. 2007). Since the Fourth and Fourteenth Amendment claims are based on the same pre-arrest

use of excessive force, the Court must combine both under a single Fourth Amendment excessive

force analysis. See Asten v. City of Boulder, 652 F. Supp. 2d 1188, 1206 (D. Colo. Aug. 26, 2009)

(“As long as a claim is properly brought under the Fourth Amendment, a plaintiff may not assert

a substantive or procedural due process claim.”).

B. Element not met: Plaintiffs have not plausibly alleged selective enforcement.
Plaintiffs Klotzer and Sayers allege an equal protection selective enforcement claim based

on their arrests for violation of park curfew. (Doc. 18 at ¶¶601-608.) However, “[t]he standard for

alleging a selective enforcement claim is a demanding one.” United States v. Alcaraz-Arellano,

441 F.3d 1252, 1264 (10th Cir. 2006) (citation omitted). Plaintiffs must do more than simply assert

that they were arrested for park curfew while others were not. See Kansas Penn Gaming, LLC v.

Collins, 656 F.3d 1210, 1218 (10th Cir. 2011) (noting that, after Iqbal, selective enforcement

claims require “more than the threadbare allegation of different treatment to similarly situated

individuals to defeat a motion to dismiss” and may be dismissed for “failure to set out specific

1
The “Protest Plaintiffs” encompass all individual plaintiffs except Alex Hickman, who does not
allege he was engaged in protest activity. (Doc. 18 at ¶¶281-94.)
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examples of similarly situated individuals and differing treatment”). The allegations presented do

not meet the plausibility standard for a constitutional violation based on selective enforcement,

and accordingly any claim against Denver on such grounds similarly fails.

II. Plaintiffs Have Not Plausibly Pled Municipal Liability

Assuming Plaintiffs adequately plead underlying constitutional violations, to state a claim

against Denver, Plaintiffs must present allegations sufficient to show: (i) an official policy or

custom; (ii) causation; and (iii) state of mind. Schneider v. City of Grand Junction Police Dep’t,

717 F.3d 760, 769 (10th Cir. 2013). As to the first of these elements, an official municipal policy

or custom may take one of the following forms:

(1) a formal regulation or policy statement; (2) an informal custom amounting to

a widespread practice that, although not authorized by a written law or express
municipal policy, is so permanent and well established as to constitute a custom
or usage with the force of law; (3) the decisions of employees with final
policymaking authority; (4) the ratification by such final policymakers of the
decisions—and the basis for them—of subordinates to whom authority was
delegated subject to these policymakers’ review and approval; or (5) the failure to
adequately train or supervise employees, so long as that failure results from
deliberate indifference to the injuries that may be caused.

Waller v. City and County of Denver, 932 F.3d 1277, 1284 (10th Cir. 2019) (quoting Bryson v.

City of Okla. City, 627 F. 3d 784, 788 (10th Cir. 2010)). “After establishing a municipal policy or

custom, a plaintiff must demonstrate ‘a direct causal link between the policy or custom and the

injury alleged.’” Id. “[A] municipality can be liable under 42 U.S.C. § 1983 for damages only

when the entity’s ‘policy or custom, whether made by its lawmakers or by those whose edicts or

acts may fairly be said to represent official policy, inflicts the constitutional injury.’” Estate of

Strong v. Northglenn, 2018 WL 1640251, *6 (D. Colo. Apr. 15, 2018) (quoting Monell, 436 U.S.

at 694); Erickson v. City of Lakewood, 489 F. Supp. 3d 1192, 1205 (D. Colo. 2020) (“In order to

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state a claim for municipal liability under § 1983 for the actions of a municipal employee, a party

must allege sufficient facts to demonstrate that it is plausible ‘(1) that a municipal employee

committed a constitutional violation; and (2) that a municipal policy or custom was the moving

force behind the constitutional deprivation.’”) (quoting Jiron v. City of Lakewood, 392 F.3d 410,

419 (10th Cir. 2004)). Finally, as to the “state of mind” element, “[t]he plaintiff must further show

that ‘the policy was enacted or maintained with deliberate indifference to an almost inevitable

constitutional injury.’” Erickson, 489 F. Supp. 3d at 1205 (quoting Schneider, 717 F.3d at 769).

While Plaintiffs’ precise theory of municipal liability is unclear, 2 the Amended Complaint

appears to allege the following municipal customs or policies: (1) unlawful widespread “customs

and/or practices” of violating and/or “tolerating the violation of” the constitutional rights of

protestors; (2) ratification or authorization by final policymakers of use of force at the protests; (3)

a failure to train, discipline, or supervise; and (4) certain formal policies of Denver. However, the

Amended Complaint fails to assert sufficient non-conclusory, factual allegations to support any of

these theories, and the claims against Denver should be dismissed.

A. Municipal Liability based on “Customs and/or Practices”

i. Element not met: Plaintiffs have not identified prior, similar constitutional
violations showing a widespread practice or custom.

“Cities may incur liability when they adopt unconstitutional ‘longstanding practice[s] or

custom[s]’ that become ‘standard operating procedure[s].’” Murphy v. City of Tulsa, 950 F.3d 641,

649 (10th Cir. 2019) (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). However,

simply asserting that an informal custom or practice must be responsible for officers’ actions

2
Denver attempted to confer with Plaintiffs’ counsel regarding this issue but did not receive a
response prior to filing this motion.
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because “nothing else would explain” officers’ purported unconstitutional actions is insufficient

to state a plausible claim. Waller, 932 F.3d at 1290. Rather, such a theory requires allegations

sufficient to support “persistent and widespread... practices,” “systematic maladministration” of

the laws, practices that are “permanent and well settled,” and “deeply embedded traditional ways

of carrying out ... policy.” See Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68 (1970).

Plaintiffs’ Amended Complaint asserts broadly that Denver has some informal, widespread

practice of either violating or “tolerating” violations of constitutional rights of protestors. (Doc. 18

at ¶¶507, 528, 550.) But reviewing the actual allegations reveals a moving target. The allegations

in the Amended Complaint fluctuate from describing Denver as having a widespread practice of

(a) “inappropriate and indiscriminate use of ‘less-lethal’ weapons,” (Doc. 18 at ¶149; see also id.

at ¶¶147, 508, 547), (b) “arresting, intimidating, or otherwise retaliating against protestors,” (id. at

¶134; see also id. at ¶¶147, 547), and/or (c) taking action without giving dispersal orders or

allowing dispersal, (id. at ¶¶148, 580, 582). All of these different actions are seemingly lumped

together as a widespread, informal practice of violating protestors rights and/or “tolerating” such

violations of rights. (See id. at ¶147.)

What Plaintiffs seek to obscure with these generalized and shifting allegations is the lack

of prior similar incidents necessary to establish a “longstanding practice or custom” sufficient to

support municipal liability. Plaintiffs primarily rely on other instances during the George Floyd

protests, spanning the days of May 28, 2020 to June 1, 2020. (Doc. 18 at ¶¶74-133.) However,

allegations related to the days surrounding Plaintiffs’ alleged constitutional violations do not

support “practices of sufficient duration” to plausibly show municipal liability based on a

permanent and well-settled custom. Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (“Liability

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for improper custom may not be predicated on isolated or sporadic incidents; it must be founded

upon practices of sufficient duration, frequency and consistency that the conduct has become a

traditional method of carrying out policy.”); see also Sanderlin v. City of San Jose, No. 20-CV-

04824-BLF, 2022 WL 913055, at *15 (N.D. Cal. Mar. 29, 2022) (finding plaintiffs failed to

establish “that the policies or customs were ‘so persistent and widespread that [they] constitute[ ]

a permanent and well settled city policy’” where they only alleged “actions that took place over a

few days in late May and early June 2020” and did not allege “any other examples of use of less-

lethal weapons on protestors that preceded the George Floyd protests”) (quoting Trevino, 99 F.3d

at 918); see also Steven Monacelli v. City of Dallas, No. 3:21-CV-2649-L, 2022 WL 4668054, at

*7 n. 4 (N.D. Tex. Sept. 30, 2022) (noting lack of case law that a policymaker could be on sufficient

notice of a “pattern” based on protest occurrences within 24 hours of plaintiff’s). Plaintiffs’

allegations regarding force used in the George Floyd protests, over a span of less than a week, are

simply insufficient to establish a longstanding “standard operating procedure.”

As to allegations relating to prior incidents, most are too dissimilar because they were not

within the context of protests and instead involve retaliatory arrests or seizures for speech or

filming. (Doc. 18 at ¶¶140-46.) Dissimilar instances cannot support a widespread informal practice

sufficient to support municipal liability. Waller, 932 F.3d at 1290; Sexton, 530 F. Supp. 3d at 1070.

At most, Plaintiffs identify only two similar incidents occurring prior to the George Floyd protests:

(1) the August 25, 2009 use of pepper balls, lack of dispersal notice, and arrests in response to

protests at the DNC, (Doc. 18 at ¶137), and (2) the use of pepper balls and arrests at Occupy

protests in 2011 (id. at ¶138). However, such incidents, occurring nearly eleven and nine years

before the George Floyd protests, are too remote in time to support the conclusion of a widespread,

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longstanding practice. Lankford v. City of Hobart, 73 F.3d 283, 287 (10th Cir. 1996) (“isolated

and sporadic acts” do not establish municipal liability). Moreover, even if such remote incidents

were considered, two similar incidents alone are insufficient to plausibly allege “a practice so

permanent and well settled that it constitutes a custom or usage with the force of law.” Sexton, 530

F. Supp. 3d at 1071 (finding that “two alleged incidents, one in 2013 and one in 2019, are

insufficient”); cf. Hildreth v. Butler, 960 F.3d 420, 428 (7th Cir. 2020) (surveying circuit case law

and noting that “[t]hose cases have concluded that four or more incidents over varying periods—

sometimes less than nineteen months—are insufficient to qualify as a widespread practice or

custom”). Accordingly, the allegations in the Amended Complaint fail to demonstrate a

widespread informal practice.

ii. Element not met: Plaintiffs have not plausibly established a widespread
practice or custom caused their constitutional injury

Because municipal liability cannot be established on a theory of vicarious liability, a

plaintiff must show a “direct causal link between the municipal action and the deprivation of

federal rights,” Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 405 (1997), and

that the municipality’s conduct is “closely related to the ultimate injury,” City of Canton, Ohio v.

Harris, 489 U.S. 378, 391 (1989). Here, Plaintiffs’ attempt to broadly define the “widespread

practice”—including the moving target allegations as to the particularities of said practice—

demonstrate that they have not plausibly alleged that the practice is in fact closely related to the

ultimate injuries of each individual plaintiff. That is, as noted above, Plaintiffs suffered a wide

range of alleged force against them—from guns pointed at them to pepper spray, bear mace, rubber

bullets, flash bangs and general exposure to chemical irritants. Beyond mere conclusory statements

that the generalized “widespread practice” was the “‘moving force’ behind the violations of

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Plaintiffs’ constitutional rights,” (Doc. 18 at ¶180), Plaintiffs have not presented any factual

allegations in support of how any long-standing custom or practice by Denver directly caused the

individual officers to undertake actions that allegedly violated the constitutional rights in each

plaintiff’s situation. This is insufficient in light of the “rigorous standards of culpability and

causation [that] must be applied” where a plaintiff seeks to hold a municipality liable under § 1983.

Schneider, 717 F.3d at 770. Accordingly, these claims fail.

B. Municipal Liability based on Ratification

i. Element not met: Approval of specific unconstitutional acts and basis

therefor by final policymaker

Plaintiffs alternatively assert that municipal policymakers authorized or ratified the

unconstitutional actions of individual defendant officers. (Doc. 18 at ¶¶509, 548, 571.) To support

this theory of municipal liability, Plaintiffs offer allegations regarding a press conference held on

May 29, 2020, (id. at ¶¶158-59, 191) alongside conclusory assertions that Phelan “personally

authorized the use of less-lethal munitions in ways that violated the constitutional rights of the

Plaintiffs,” (id. at ¶159), based seemingly on his role as the Incident Commander, (id. at ¶190, 208,

209-214). 3

As to allegations regarding the press conference, courts have rejected similar claims,

finding that “generic affirmations of support for the [police department] fall short of actual

ratification,” particularly when the speaker “cannot be said to have specifically approved of [the

3
As an initial matter, “basic principals [sic] of linear time prevent us from seeing how conduct
that occurs after the alleged violation could have somehow caused that violation,” for purposes of
municipal liability. Cordova v. Aragon, 569 F.3d 1183, 1194 (10th Cir. 2009). Thus, allegations
of authorization or ratification occurring after Plaintiffs’ incidents do not plausibly establish a
ratification claim. (See, e.g., Doc. 18 at ¶¶160, 164, 169, 196, 240).
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defendant officer’s] decisions or adopted [the] basis for his actions.” Buck v. City of Albuquerque,

No. CV 04-1000 JP/DJS, 2007 WL 9733722, at *6 (D.N.M. June 15, 2007); Montoya v. City &

Cnty. of Denver, No. 16-cv-01457-JLK, 2021 WL 1244264, at *23 (D. Colo. Mar. 4, 2021), aff’d,

No. 21-1107, 2022 WL 1837828 (10th Cir. June 3, 2022) (dismissing ratification claim alleging

that “the Mayor and Police Chief ratified their subordinates’ conduct at the press conference that

was held on January 11, 2000,” for failing “to allege that the Police Chief or Mayor had any

knowledge of Defendant Officers’ specific unconstitutional actions or the basis for them.”); Hunt

v. Davis, 749 F. App’x 522, 524–26 (9th Cir. 2018) (post-incident press conference statement

generally standing by police department’s work not a basis for ratification).

As to alleged “ratification” or authorization by Phelan to support municipal liability, the

conclusory assertions are insufficient to survive a Rule 12(b)(6) challenge. Case law provides that

“[m]unicipal liability may also be based on the decisions of employees with final policymaking

authority or the ratification by such final policymakers of the decisions—and the basis for them—

of subordinates to whom authority was delegated subject to these policymakers' review and

approval.” See Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1189 (10th Cir.

2010)). That is, “[i]n order to state a claim under a ratification theory of municipal liability, the

complaint must ‘allege [ ] facts regarding an affirmative approval of the [the police officer’s]

actions.” Sexton, 530 F. Supp. 3d at 1071 ((additions original) (quoting Twitchell v. Hutton, 2011

WL 318827, *5 (D. Colo. Jan. 28, 2011)). However, the allegations that Phelan knew of, ordered,

or actually approved of any of the alleged constitutional violations of Plaintiffs are wholly

conclusory. (Defendants Phelan’s Motion to Dismiss 4 at § I.A.i.) There are no specific factual

4
Filed contemporaneously with this Motion.
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allegations that plausibly suggest that Phelan knew of and ratified the uses of force against the

individual plaintiffs and the unconstitutional basis for them. “A municipality will not be found

liable under a ratification theory unless a final decisionmaker ratifies an employee’s specific

unconstitutional actions, as well as the basis for these actions.” Bryson, 627 F.3d at790 (emphasis

added). Plaintiffs’ conclusory allegations that Phelan—in the context of unprecedented protests

occurring over multiple days and throughout the city—was aware of alleged unconstitutional

actions undertaken by unknown officers against each plaintiff and ratified such unconstitutional

actions fail to reach the level of plausibility necessary to establish a municipal liability claim.

ii. Element not met: Plaintiffs have not plausibly alleged a causal link

Plaintiffs’ conclusory “moving force” allegations are also insufficient to support a causal

link between the act of ratification and the alleged unconstitutional conduct, (see Doc. 18 at ¶¶180,

220). Their ratification claim against Denver must accordingly be dismissed. See Osborn v.

Meitzen, 2020 WL 3800547, *2 (E.D. Okla. July 6, 2020).

C. Municipal Liability based on Failure to Train, Supervise or Discipline

i. Element not met: Plaintiffs have not identified a specific deficiency closely
related to their injuries.

To assert a plausible failure to train claim, Plaintiffs’ must identify a specific deficiency in

Denver’s training program that is closely related to their respective ultimate injuries. See, e.g.,

Carr v. Castle, 337 F.3d 1221, 1231 (10th Cir. 2003). Failure to supervise/discipline claims

similarly require identification of a specific deficiency in supervision. Adkins v. City of Colo.

Springs, No. 20-CV-01022-KMT, 2021 WL 810107, at *12 (D. Colo. Mar. 3, 2021). Here, the

Amended Complaint characterizes the failure to train in a myriad of different ways, alternatively

stating that officers were insufficiently trained, disciplined, or supervised with respect to (a)

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“crowd control,” (Doc. 18 at ¶25), (b) joint training with neighboring jurisdictions, (id. at ¶174),

(c) “less lethal” munitions, (d) flash bang or stinger grenades, (id. at ¶¶170, 176), and (e)

“constitutional responses to peaceful demonstrations,” (id. at ¶206). 5 However, the Amended

Complaint relies on nothing more than conclusory assertions that there was no training or that the

training was simply deficient in some unspecified way. (See, e.g., Doc. 18 at ¶¶204-05.) Such

allegations are not sufficient to support a plausible claim under a failure to train theory of municipal

liability. See Sanchez v. City of Littleton, 491 F. Supp. 3d 904, 922 (D. Colo. 2020) (finding

allegations insufficient where “plaintiffs do not set forth any facts concerning how the individual

defendants were trained, who they were trained by, or why their training was deficient”); Baldwin

v. City of Rifle, No. 20-CV-00594-PAB-GPG, 2021 WL 948831, at *4 (D. Colo. Mar. 11, 2021).

ii. Element not met: Plaintiffs have not plausibly alleged deliberate
indifference.

Plaintiffs’ allegations are also insufficient to show that Denver acted with the requisite

deliberate indifference. “To state a Monell claim based on the failure to train or supervise, a

plaintiff must sufficiently allege that the failure ‘amounts to deliberate indifference to the rights of

persons with whom the police come into contact.’” Sexton, 530 F. Supp. 3d at 1072 (quoting City

of Canton v Harris, 489 U.S. 378, 388 (1989)). Deliberate indifference is a stringent standard of

fault, and to sufficiently plead it, the Amended Complaint must include factual allegations showing

5
Notably, there are no factual allegations tying some of these deficiencies to any of the
constitutional injuries suffered by Plaintiffs. For example, there are no allegations as to how a
failure to have joint training with neighboring jurisdictions led to any of the injuries. Similarly, at
most, only three of the Plaintiffs appear to have any allegations regarding flash bangs, (Doc. 18 at
¶¶254 (Mr. Rios), 329 (Mr. Schwab), 364 (Mr. Friedman), 454 (Ms. Klotzer)), so a failure to train
on flash bang or stinger grenades has no connection to the majority of Plaintiffs’ alleged
constitutional violations.
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that Denver knowingly created a substantial risk of constitutional injury. See Schneider, 717 F.3d

at 769. “To satisfy the stringent deliberate indifference standard, a pattern of similar constitutional

violations by untrained employees is ordinarily necessary: [w]ithout notice that a course of training

is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen

a training program that will cause violations of constitutional rights.” Waller, 932 F.3d at 1285

(internal quotations omitted).

The Amended Complaint does not contain those necessary factual allegations. (See supra,

§II.A.i.) Instead, it offers no more than wholly conclusory assertions of deliberate indifference.

(Doc. 18 at ¶¶158-59, 167, 176.) At most, the Amended Complaint suggests Denver was on notice

of deficiencies in training, supervision, or discipline due to complaints or press coverage during

and after the George Floyd protests. (Doc. 18 at ¶¶168, 170, 195-96.) However, the Amended

Complaint pleads no facts showing that Denver was on notice prior to Plaintiffs’ alleged injuries

of any of these complaints or specific training, supervision, or discipline deficiencies. The George

Floyd protests were unprecedented, and Plaintiffs cannot and have not alleged prior notice of the

need for different or more training or supervision. See Connick v. Thompson, 563 U.S. 51, 63 n.7

(2011) (“[C]ontemporaneous or subsequent conduct cannot establish a pattern of violations that

would provide ‘notice to the cit[y] and the opportunity to conform to constitutional dictates ....’”)

(quoting Canton, 489 U.S. at 395). The Amended Complaint fails to allege facts showing it was

plausible that Denver was deliberately indifferent to any training or supervision deficiency, and

the failure to train or supervise claim must be dismissed.

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D. Municipal Liability based on Formal Policies

i. Element not met: Plaintiffs have not plausibly alleged causation.

Plaintiffs’ Amended Complaint mentions in passing a few arguably formal, official

policies: namely, (a) permitting other jurisdictions to use their own use of force policies and

weapons (Doc. 18 at ¶183); (b) not requiring completion of use of force reports during the protests

(id. at ¶198-99); and (c) not requiring BWC activation during the protests (id. at ¶200). However,

even if such policies are deemed “formal policies,” Plaintiffs’ allegations fall short of

demonstrating the necessary element of causation to show that such policies were the moving force

behind the particular constitutional injuries allegedly suffered by Plaintiffs because there are

simply no allegations as to how these policies caused the particular constitutional violations

complained of.

CONCLUSION

WHEREFORE, for the reasons stated herein, Defendant Denver respectfully requests that

the Court dismiss Plaintiffs’ Amended Complaint against it in its entirety, with prejudice.

Dated this 19th day of October 2022.

Respectfully submitted,
By: s/ Katherine Field
Geoffrey Klingsporn, Assistant City Attorney
Clayton J. Ankney, Assistant City Attorney
Katherine Field, Assistant City Attorney
Denver City Attorney’s Office
E-mail: [email protected]
E-mail: [email protected]
E-mail: [email protected]
Attorneys for Defendants

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CERTIFICATE OF SERVICE

I certify that on this 19th day of October 2022, I electronically filed the foregoing
DEFENDANT DENVER’S MOTION TO DISMISS with the Clerk of the Court using the
CM/ECF system which will send notification of such filing to the following:

Edward Milo Schwab

Ascend Counsel, LLC
2401 South Downing Street
Denver, CO 80210
(303) 888-4407
[email protected]

Attorney for Plaintiffs

s/ Katherine Field
Denver City Attorney’s Office

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