Schrecengost v. Powers et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 24-cv-00588-PAB-TPO
GREG SCHRECENGOST,
Plaintiff,
v.
ETHAN POWERS, Deputy in his individual capacity, and
ELIAS GONZALEZ, in his individual capacity,
Defendants.
ORDER
This matter comes before the Court on Defendants’ Motion for Summary
Judgment [Docket No. 40]. Plaintiff Greg Schrecengost filed a response. Docket No.
52. Defendants filed a reply. Docket No. 57. The Court has jurisdiction pursuant to 28
U.S.C. § 1331. On March 2, 2022, defendants conducted a traffic stop on plaintiff’s
vehicle, leading plaintiff to file this lawsuit alleging claims for unreasonable seizure and
excessive force.
I. 	UNDISPUTED FACTS 1
On March 2, 2022, in the area of County Roads 70 and 15 in Larimer County,
Colorado, defendant Deputy Ethan Powers of the Larimer County Sheriff’s Office
(“LCSO”) conducted a traffic stop on plaintiff for failing to have a front license plate on
his car. Docket No. 40 at 3, ¶ 1. At the time of the stop, defendant LCSO Deputy Elias
1 The following facts are undisputed unless otherwise indicated.
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 1 of 32

2
Gonzalez was on a “ride-along” with Deputy Powers. Id., ¶ 2. He was dressed in street
clothes. See generally Docket No. 41-1.
Deputy Powers was driving in the opposite direction of plaintiff. Docket No. 52 at
6, ¶ 22. Deputy Powers saw plaintiff complete a lawful pass of a slow-moving semi
truck and noticed that plaintiff’s vehicle did not have a front license plate. Id. Deputy
Powers got behind plaintiff’s car and activated his red and blue lights. Id., ¶ 26. Plaintiff
immediately pulled his car to the side of the road, without any indication that plaintiff
was impaired. Id. Deputy Powers asked plaintiff for his driver’s license, plaintiff
complied, and Deputy Powers took the license. Id., at 7, ¶ 30. 2 Deputy Powers
directed plaintiff to exit the vehicle and walk to the rear of the car. Id. at 8, ¶ 41.
Plaintiff complied, with his exit and walking being normal. Id.
Deputy Powers asked plaintiff how much alcohol he had to drink that day, to
which plaintiff replied “none.” Id. at 9, ¶ 48. Deputy Powers asked plaintiff when was
the last time plaintiff smoked marijuana, to which plaintiff replied “never.” Id. at 10, ¶ 49.
Deputy Powers asked if plaintiff took prescription medications “for anything.” Id., ¶ 50.
Plaintiff told Deputy Powers that he used a prescribed ointment for his back and
sometimes took Motrin. Id., ¶ 51. While talking to Deputy Powers, plaintiff had a wallet,
a cigarette, and cigarette rolling papers in his hands. Id., ¶ 52.
Deputy Powers asked plaintiff, “you mind if I look at your eyes for a minute?” Id.,
¶ 56. Plaintiff asked Deputy Powers if he was not already looking at his eyes. Id.
2 Defendants dispute this assertion, arguing that the video does not support it.
See Docket No. 57 at 1, ¶¶ 27-32. The Court finds that the video shows that plaintiff
gave Deputy Powers his driver’s license and that Deputy Powers took it. See Docket
No. 41-1 at 00:36-1:40.
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 2 of 32

3
Deputy Powers again asked, “is it okay if look at your eyes for a minute? This is a yes
or no question.” Id., ¶ 57. Plaintiff responded, “No. This is starting to feel
confrontational.” Id. Deputy Powers asked his question a third time and plaintiff told
Deputy Powers “no.” Id. at 11, ¶¶ 58, 60. Plaintiff and Deputy Powers exchanged the
following words:
POWERS: I think I’m smelling alcohol on your breath, okay? . . . I could be
wrong, okay? I’m not saying, I’m not saying I do, I could be wrong, but what I
wanna do is make sure that its safe for you to be driving before I send you down
the road, okay? The way I can do that is by-
PLAINTIFF: What I saw-
POWERS: By looking at your eyes and do some other voluntary roadside
maneuvers-
PLAINTIFF: What I saw, was me pass a car that was not doin’ the speed limit,
you turn off heading West, I’m heading East, I pass him, you think I’m doing
somethin’ unsafe, so that’s why you pull me over-
POWERS: I haven’t said you’re doin’ something unsafe-
PLAINTIFF: This all has absolutely nothing to do with me not having a front
license plate
. . .
POWERS: So here’s the deal, okay? I’m not here to argue with you. What I am
here to do is make sure that it’s safe for you to be driving, okay? Based on my
interaction with you thus far, I’m not certain of that, not saying that it’s not safe
for you to drive, I just wanna be sure that I’m doing my job, okay? The way I
can do that is through lookin’ at your eyes, potentially through some voluntary
roadside maneuvers, soon as I can confirm-
PLAINTIFF: I want to be at work.
POWERS: Soon as I can confirm that it’s safe for you to drive, I’m gonna put
you back in that car and send you on your way, okay? However, at this point
currently, I have some concerns that it may not be safe for you to drive and I’m
not comfortable putting you back in that car. Okay? Does that make sense?
That’s all I’m trying to do here, okay, I’m not trying to pick on ya, I’m not trying to
be a mean guy-
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 3 of 32

4
PLAINTIFF: Yeah, you are.
POWERS: Okay. You certainly caught my attention when you were passing
that car, but you did not do anything illegal when you did that.
PLAINTIFF: Exactly.
Id. at 11-12, ¶ 61. 3 Deputy Powers asked plaintiff, “would you blow on a preliminary
breath test if I asked you to?,” and plaintiff responded “no.” Id. at 13, ¶ 64. Deputy
Powers asked plaintiff, “why not?” and plaintiff responded, “because [I] did not consent
to any of this shit.” Id. (internal quotations omitted). 4 Plaintiff turned towards his
vehicle and started to walk away. Docket No. 40 at 3, ¶ 4. 5 Deputy Powers grabbed
3 The parties do not dispute the content of Deputy Powers and plaintiff’s
conversation regarding voluntary roadside maneuvers. See Docket No. 52 at 11-12,
¶¶ 61-62; Docket No. 57 at 4, ¶¶ 61-62. Rather, they dispute whether this conversation
shows that plaintiff refused to perform a sobriety test. See id. Thus, the Court will
consider it undisputed that the parties had this exchange. See Docket No. 41-1 at 3:27-
4:10, 4:37-5:19
4 Defendants dispute that Deputy Powers was lying about smelling alcohol and
that he “invent[ed]” an approach for testing for intoxication that involves asking the
driver if he can look at their eyes. See Docket No. 57 at 4, ¶¶ 63-65. However,
defendants do not dispute that Deputy Powers asked whether plaintiff would “blow on a
preliminary breath test.” Docket No. 52 at 13, ¶ 64. Furthermore, the video footage
confirms this. See Docket No. 41-1 at 5:34-5:42. Accordingly, the Court deems this
fact admitted.
5 Plaintiff disputes that he tried to leave, arguing that plaintiff was “growing
concerned for his safety and tried to create more space between himself and Deputy
Powers.” Docket No. 52 at 1, ¶ 4. The Court finds that plaintiff’s description is blatantly
contradicted by the video footage, which clearly shows plaintiff turning toward his
vehicle and starting to walk away. See Docket No. 41-1 at 5:59-6:04. Even if plaintiff
was growing concerned for his safety, plaintiff’s subjective mindset is irrelevant for
purposes for plaintiff’s Fourth Amendment claims where the video footage clearly shows
plaintiff walking away. See Medina v. Cram, 252 F.3d 1124, 1131 (10th Cir. 2001)
(“Claims of excessive force are analyzed under the objective reasonableness standard
of the Fourth Amendment.”); York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir.
2008) (“Probable cause exists if facts and circumstances within the arresting officer’s
knowledge and of which he or she has reasonably trustworthy information are sufficient
to lead a prudent person to believe that the arrestee has committed or is committing an
offense.”) (citation omitted).
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 4 of 32

5
plaintiff’s left arm and said, “don’t walk away from me, we’re not done.” Docket No. 52
at 14, ¶ 70. Plaintiff did not walk away any further and said, “[y]ou’re being
confrontational.” Id. Deputy Powers twice ordered plaintiff to take his hands out of his
pockets, but he did not take his left hand out of his pants pocket. Docket No. 40 at 4,
¶ 6. 6
Deputy Powers grabbed plaintiff’s left arm and wrist, attempting to twist them
behind plaintiff’s back. Docket No. 52 at 14, ¶¶ 73-74. 7 Plaintiff did not place his hands
behind his back, but instead resisted Deputy Powers’ attempt. Docket No. 40 at 4, ¶ 7. 8
6 Plaintiff disputes that he failed to obey Deputy Powers’ commands to remove
his hands from his pocket, arguing that plaintiff “had one hand resting on the stitching of
one of his pockets (with the other holding his unlit cigarette) throughout the entire
encounter up to this point.” Docket No. 52 at 2, ¶ 6. The Court finds that plaintiff’s
assertion is blatantly contradicted by the video footage that shows plaintiff put his left
hand in his pants pocket, see Docket No. 41-1 at 3:34-36, where it remained at the point
Deputy Powers commanded plaintiff to remove his hands from his pockets. See id. at
3:36-6:18.
7 Defendants dispute plaintiff’s description of Deputy Powers’ conduct as he
grabbed plaintiff, arguing that Deputy Powers’ body-worn camera footage cited by
plaintiff does not support plaintiff’s view. See Docket No. 52 at 14, ¶¶ 73-74; Docket
No. 57 at 5, ¶¶ 73-74. The Court finds that the footage supports plaintiff’s assertion that
Deputy Powers grabbed plaintiff’s left arm and wrist and attempted to twist them behind
plaintiff’s back. See Docket No. 41-1 at 6:20-50.
8 Plaintiff disputes that he resisted Deputy Powers’ attempts to put plaintiff’s
hands behind his back and refused to comply with Deputy Powers’ commands. See
Docket No. 40 at 4, ¶¶ 7-9. Plaintiff contends that he was not attempting to “pull away”
from Deputy Powers. Docket No. 52 at 2, ¶ 7. Plaintiff argues that he did not “‘pull
away’ so much as his whole body stiffened and recoiled in reaction to the physical pain
Powers [was] purposely inflicting upon him.” Id. Even viewing the video in the light
most favorable to plaintiff, to the extent that plaintiff argues that his reaction to Deputy
Powers attempting to twist plaintiff’s arm behind his back was an involuntary response
to pain, and not active resistance, the Court finds that no reasonable jury could credit
plaintiff’s version of events. See Emmett v. Armstrong, 973 F.3d 1127, 1131 (10th Cir.
2020) (accepting plaintiff’s “version of the story” to the extent that it is not “so utterly
discredited by the record that no reasonable jury could have believed him”) (citation
omitted). The footage shows no indication that plaintiff is in pain. Moreover, plaintiff
told Deputy Powers that he would not comply with Deputy Powers’ commands. See
Docket No. 41-1 at 6:20-50. Thus, the video blatantly contradicts plaintiff’s version of
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 5 of 32

6
Deputy Powers told plaintiff several times to put his hands behind his back and that he
was under arrest, with plaintiff responding “no” and “no, I’m not.” Id., ¶¶ 7-9. Deputy
Powers stated, “force is gonna be used against you if you don’t put your hands behind
your back.” Docket No. 52 at 2-3, ¶ 8. 9 Plaintiff responded, “[f]orce is gonna be used
against you because you’re assaulting me.” Id.
Deputy Powers took plaintiff to the ground. Id. at 15, ¶ 76. 	Deputy Gonzalez
then grabbed and held plaintiff’s legs down. Id. Plaintiff produced a metal flashlight,
which he held in his hand, and said, “Dude I could fuck you up with this light. I’m not
assaulting you. I’m not doing anything wrong.” Docket No. 40 at 4, ¶ 11. 10 Deputy
Powers said to plaintiff, “get on your back! Do it now.” Docket No. 52 at 15, ¶ 77.
Without warning, Deputy Powers used his Taser on plaintiff. Id. Plaintiff yelled “ow”
and rolled onto his back in response to the shock. Id. Deputy Powers then told plaintiff
to roll onto his stomach. Id. Plaintiff grabbed Deputy Powers’ Taser. Docket No. 40 at
events. Furthermore, plaintiff’s subjective mindset (i.e., whether he was failing to put his
hands behind his back due to pain or a desire to resist arrest) is not material.
Accordingly, the Court finds that defendants’ assertions of fact regarding plaintiff’s
resistance to arrest, see Docket No. 40 at 4, ¶¶ 7-9, are undisputed.
9 The parties do not dispute that Deputy Powers told plaintiff that force would be
used against him if plaintiff did not comply and that plaintiff responded that force would
be used against Deputy Powers, although the parties selectively quote from such
exchange in their assertions of fact. See Docket No. 40 at 4, ¶ 8; Docket No. 52 at 2-3,
¶ 8. 10 Plaintiff disputes that he produced a flashlight from his pocket, arguing that he
had it “in his hand throughout his and Powers’ entire encounter.” Docket No. 52 at 3,
¶ 11. The video footage clearly shows that plaintiff did not have the flashlight in his
hands and plaintiff fails to cite where in the video the flashlight can be seen in plaintiff’s
hands or provide other evidence that supports this assertion. See generally Docket No.
41-1. The Court finds that the video blatantly contradicts plaintiff’s version of events.
Accordingly, the Court will deem this fact admitted.
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 6 of 32

7
5, ¶ 13. 11 Deputy Powers continued yelling at plaintiff to roll over onto his stomach.
Docket No. 52 at 15, ¶ 79. Plaintiff took hold of Deputy Powers’ hand, which prevented
Deputy Powers from radioing for further assistance. Docket No. 40 at 5, ¶ 13. Deputy
Gonzalez got off plaintiff’s legs so that plaintiff could roll over. Docket No. 52 at 16,
¶ 81. Plaintiff rolled over and Deputy Powers placed him in handcuffs. Id.
Plaintiff was charged with a license plate violation, driving under the influence of
alcohol (“DUI”), Obstructing a Police Officer, Resisting Arrest, and Attempt to Disarm a
Police Officer. Docket No. 40 at 5, ¶ 15. Plaintiff pled guilty to the license plate
violation, was convicted at a jury trial of Obstruction, and was acquitted of the remaining
charges at a second jury trial. Id.
II. 	LEGAL STANDARD
A. Summary Judgment
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is “material” if,
under the relevant substantive law, it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary judgment.
Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is
11 Plaintiff disputes that he “pointed” the Taser at Deputy Powers. See Docket
No. 52 at 4, ¶ 13. Plaintiff argues that he “clearly was trying” to get the Taser “out of the
fight by throwing it away from the scene.” Id. Because plaintiff does not dispute that he
grabbed the Taser, the Court will deem this fact admitted.
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 7 of 32

8
“genuine” if the evidence is such that it might lead a reasonable jury to return a verdict
for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
Where “the moving party does not bear the ultimate burden of persuasion at trial,
it may satisfy its burden at the summary judgment stage by identifying a lack of
evidence for the nonmovant on an essential element of the nonmovant’s claim.”
Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quotations
omitted). “Once the moving party meets this burden, the burden shifts to the nonmoving
party to demonstrate a genuine issue for trial on a material matter.” Concrete Works of
Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994). The
nonmoving party may not rest solely on the allegations in the pleadings, but instead
must designate “specific facts showing that there is a genuine issue for trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quotations omitted). “To avoid summary
judgment, the nonmovant must establish, at a minimum, an inference of the presence of
each element essential to the case.” Bausman, 252 F.3d at 1115. When reviewing a
motion for summary judgment, a court must view the evidence in the light most
favorable to the non-moving party. Id.
B. Qualified Immunity
“Qualified immunity balances two important interests – the need to hold public
officials accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their duties
reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Under the doctrine of
qualified immunity, “government officials performing discretionary functions generally
are shielded from liability for civil damages insofar as their conduct does not violate
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 8 of 32

9
clearly established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A court should resolve
questions of qualified immunity at the earliest possible stage of litigation. Anderson v.
Creighton, 483 U.S. 635, 646 n.6 (1987).
To overcome a qualified immunity defense at the summary judgment stage, a
plaintiff must demonstrate (1) that the official violated a statutory or constitutional right,
and (2) that the right was “clearly established” at the time of the challenged conduct.
Surat v. Klamser, 52 F.4th 1261, 1270-71 (10th Cir. 2022). Courts are “permitted to
exercise their sound discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the
particular case.” Pearson, 555 U.S. at 236. Generally, a constitutional right is clearly
established if “the contours of the right [are] sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” Surat, 52 F.4th at 1276.
“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.” Torres v.
Madrid, 60 F.4th 596, 603 (10th Cir. 2023); see also Irizarry v. Yehia, 38 F.4th 1282,
1293 (10th Cir. 2022). The relevant precedent is “considered on point if it involves
materially similar conduct or applies with obvious clarity to the conduct at issue.”
Irizarry, 38 F.4th at 1294 (emphasis in original); see also Shepherd v. Robbins, 55 F.4th
810, 815 (10th Cir. 2022). “To be clear, we do not require plaintiffs to engage in a
scavenger hunt for a prior case with identical facts. We ask whether the existing law
provides fair warning to a defendant.” Shepherd, 55 F.4th at 815 (citations omitted).
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 9 of 32

10
C. Video Evidence
On summary judgment, when a court has “video evidence of the incident in
question” that is inconsistent with a plaintiff’s allegations of fact, the court “will accept
the version of the facts portrayed in the video, but only to the extent that it blatantly
contradicts the plaintiff’s version of events.” See Emmett, 973 F.3d at 1131 (citing Scott
v. Harris, 550 U.S. 372, 380 (2007)) (internal quotations and alteration omitted). This
means that the court must accept as true plaintiff’s “version of the story to the extent
that it is not so utterly discredited by the record that no reasonable jury could have
believed him.” See id. (internal quotation and citation omitted). If the video footage
“arguably could support” either party’s version of events, the court must “view the video
in the light most favorable” to the non-moving party. See id. at 1135.
III. 	ANALYSIS
The complaint asserts the following claims for relief: excessive force and
wrongful arrest in violation of Art. II, § 7 of the Colorado Constitution pursuant to Colo.
Rev. Stat. § 13-21-131 against Deputies Powers and Gonzalez (Claim One); excessive
force in violation of the Fourth Amendment of the U.S. Constitution pursuant to 42
U.S.C. § 1983 against Deputies Powers and Gonzalez (Claim Two); unreasonable
seizure in violation of the Fourth Amendment pursuant to § 1983 against Deputies
Powers and Gonzalez and Sergeant Michael Rairdon (Claim Three); malicious
prosecution in violation of Art. II, § 25 of the Colorado Constitution pursuant to § 13-21-
131 against Deputies Powers, Gonzalez, and Sergeant Rairdon (Claim Four); malicious
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 10 of 32

11
prosecution in violation of the Fourth Amendment pursuant to § 1983 against Deputies
Powers and Gonzalez and Sergeant Rairdon (Claim Five); and a Monell claim pursuant
to § 1983 against Larimer County Sheriff John Feyen in his official capacity (Claim
Six). 12 Docket No. 1 at 28-37.
The parties stipulated to the dismissal of Claims Five and Six against Sergeant
Rairdon and Sheriff Feyen. See Docket No. 65. Furthermore, in plaintiff’s response to
defendants’ motion for summary judgment, plaintiff represents that he “dismisses his
state and federal claims for malicious prosecution.” Docket No. 52 at 17. Thus, the
remaining claims in this case are Claim One, state-law excessive force and unlawful
arrest, Claim Two, federal excessive force, and Claim Three, federal unlawful seizure,
against Deputies Powers and Gonzalez. Deputies Powers and Gonzalez raise the
defense of qualified immunity to plaintiff’s § 1983 claims. See Docket No. 40 at 2-3.
A. Claim Two – § 1983 Excessive Force Claim
The Fourth Amendment is not a guarantee against all seizures, just
unreasonable seizures. United States v. Sharpe, 470 U.S. 675, 682 (1985). “[A]ll
claims that law enforcement officers have used excessive force–deadly or not–in the
course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be
analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” Graham v.
Connor, 490 U.S. 386, 395 (1989).
To determine “whether the force used to effect a particular seizure is
‘reasonable’’ under the Fourth Amendment,” a court must carefully balance “’the nature
12 On August 2, 2024, the magistrate judge granted plaintiff’s motion to substitute
Sheriff Feyen in the place of defendant Larimer County. Docket No. 25.
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 11 of 32

12
and quality of the intrusion on the individual’s Fourth Amendment interests' against the
countervailing governmental interests at stake.” Id. at 396 (citations omitted). “The
‘reasonableness’ of a particular use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id.
(citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)). “The calculus of reasonableness must
embody allowance for the fact that police officers are often forced to make split-second
judgments–in circumstances that are tense, uncertain, and rapidly evolving–about the
amount of force that is necessary in a particular situation.” Id. at 396-97.
Proper application of the Fourth Amendment’s reasonableness standard to an
excessive force case focuses on three, non-exclusive factors: “[1] the severity of the
crime at issue, [2] whether the suspect poses an immediate threat to the safety of the
officers or others, and [3] whether [the suspect] is actively resisting arrest or attempting
to evade arrest by flight.” Id. at 396 (citing Tennessee v. Garner, 471 U.S. 1, 8-9
(1985)); see also Saucier v. Katz, 533 U.S. 194, 195 (2001) (“If an officer reasonably,
but mistakenly, believed that a suspect was likely to fight back, for instance, the officer
would be justified in using more force than in fact was needed.”). The court must
consider “the totality of the circumstances and the full length of the use of the force.”
See Krueger v. Phillips, 154 F.4th 1164, 1206 (10th Cir. 2025).
The Court finds that the alleged excessive force began when Deputy Powers
attempted to twist plaintiff’s arm behind his back. See Docket No. 52 at 14, ¶¶ 73-74.
Deputy Powers then took plaintiff to the ground while Deputy Gonzalez 13 got on
13 Defendants do not contest that Deputy Gonzalez can be held liable for the
allegations of excessive force that occurred after Deputy Powers took plaintiff to the
ground. See Docket No. 40 at 7-10.
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 12 of 32

13
plaintiff’s legs to hold him down. Id. at 15, ¶ 76. While plaintiff was on the ground,
Deputy Powers used his Taser on plaintiff. Id., ¶ 77. Deputy Powers then placed
plaintiff in handcuffs. Id. at 16, ¶ 81. 14
a. 	Severity of the Crime
Regarding the first Graham factor, defendants contend that, “while the initial stop
was legitimized by Plaintiff’s missing license plate, review of the record reveals that by
the time Plaintiff was finally handcuffed, probable cause had arisen to charge Plaintiff
with attempted assault on a peace officer and attempt to disarm a police officer, both of
which are felonies under Colorado law.” Docket No. 40 at 7. Plaintiff responds that the
alleged development of probable cause for the felonies does not change the fact that
the crime at issue is a missing front license plate or DUI. Docket No. 52 at 23. Plaintiff
argues that to adopt defendants’ contention “would require the Court to resolve multiple
disputed facts in Defendants’ favor.” Id.
While plaintiff was initially stopped for a traffic infraction, see Colo. Rev. Stat.
§ 42-3-202(3)(a), plaintiff subsequently threatened Deputy Powers with a metal
14 Plaintiff asserts that, after being handcuffed by Deputy Powers, Deputy
Gonzalez “put his knee into Plaintiff’s back while they awaited more deputies to arrive.”
Docket No. 52 at 16, ¶ 82. Plaintiff argues that there was “no lawful purpose for
maintaining him in this dangerous prone position with weight placed upon his back.” Id.
Plaintiff cites a screenshot from the video in support; however, the screenshot blatantly
contradicts plaintiff’s characterization that Deputy Gonzalez placed his knee into
plaintiff’s back. Accordingly, the Court will not consider this fact. While the screenshot
shows Deputy Gonzalez pressing his hand into plaintiff’s left shoulder, the screenshot
contradicts that plaintiff was in a “dangerous prone position with weight placed upon his
back.” See id. Plaintiff does not cite the video footage that shows Deputy Gonzalez
restraining plaintiff while waiting for back-up; however, it appears that that screenshot is
taken from the body-worn camera footage at Exhibit H, Docket No. 41-7. This video
footage also blatantly contradicts plaintiff’s characterization of him being in a prone
position with Deputy Gonzalez’s knee in his back, and plaintiff does not cite other
evidence in support. See Docket No. 41-7 at 3:10-4:20.
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 13 of 32

14
flashlight. See Docket No. 40 at 4, ¶ 11. Colo. Rev. Stat. § 18-3-203 provides that a
person assaults a police officer where:
With intent to prevent one whom he or she knows, or should know, to be a peace
officer, firefighter, emergency medical care provider, or emergency medical
service provider from performing a lawful duty, he or she intentionally causes
bodily injury to any person
Colo. Rev. Stat. § 18-3-203(1)(c). In these circumstances – where plaintiff refused a
directive to remove his hand from his pockets, resisted arrest, during a struggle
suddenly had a weapon in his hands, and told Deputy Powers that he could “fuck [him]
up with this light,” see Docket No. 40 at 4, ¶¶ 6, 11 – the Court finds that a reasonable
officer would have suspected that plaintiff committed a felony crime of attempted assault
on a police officer. See Krueger, 154 F.4th at 1198 (in analyzing the first Graham
factor, considering whether a jury could find that a “reasonable officer” would have
“suspected” a battery). Accordingly, the Court finds that the first Graham factor weighs
in favor of defendants.
b. Immediate Threat to Safety
The second Graham factor, whether the suspect posed an immediate threat to
the officers’ safety, “is undoubtedly the most important and fact intensive factor in
determining the objective reasonableness of an officer’s use of force.” Pauly v. White,
874 F.3d 1197, 1216 (10th Cir. 2017) (internal quotation and citation omitted).
Defendants argue that plaintiff “obviously showed an immediate threat” because he
“repeatedly refuse[d] to obey every lawful command” and “produced a metal flashlight
from his pocket,” which he threatened Deputy Powers with, “notably after refusing to
take his hand from his pocket.” Docket No. 40 at 8. Defendants note that plaintiff
“repeatedly grabbed Powers’s hand.” Id. Plaintiff responds that he is a “disabled
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 14 of 32

15
veteran” and “can be seen on BWC video to be significantly smaller and more frail than
both deputies, who were both armed with guns,” while plaintiff “had a little flashlight and
an unlit cigarette.” Docket No. 52 at 24.
The undisputed facts demonstrate that plaintiff tried to walk away from Deputy
Powers and refused Deputy Powers’ subsequent directive to remove his hand from his
pockets. Docket No. 40 at 4, ¶ 6. As Deputy Powers attempted to restrain plaintiff,
plaintiff told Deputy Powers that “force is gonna be used against you.” Docket No. 52 at
2-3, ¶ 8. When, due to plaintiff’s resistance, Deputy Powers could not control plaintiff’s
hands, plaintiff was able to obtain a metal flashlight and threatened to use it to harm
Deputy Powers. Docket No. 40 at 4, ¶ 11. Only at this point did Deputy Powers use the
Taser. See Docket No. 52 at 15, ¶ 77. Plaintiff then grabbed Deputy Powers’ Taser
and later Deputy Powers’ hand. Docket No. 40 at 5, ¶ 13. Based on plaintiff’s actions,
the Court finds that plaintiff posed an immediate threat to the safety of Deputy Powers,
as well as Deputy Gonzalez, and that the second Graham factor weighs in favor of
defendants. See Wilson v. City of Lafayette, 510 F. App’x 775, 778 (10th Cir. 2013)
(unpublished) (holding that the second Graham factor weighed in favor of defendant
where the officer used his Taser on the suspect, resulting in the suspect’s death, after
the suspect disregarded multiple commands and the suspect reached into his pockets
despite being ordered not to do so); compare Davis v. Clifford, 825 F.3d 1131, 1135
(10th Cir. 2016) (holding that the second Graham factor weighed in favor of plaintiff
because there was no evidence that she had “access to a weapon or that she
threatened harm to herself or others”).
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 15 of 32

16
c. 	Resistance to Arrest
As Deputy Powers attempted to twist plaintiff’s left arm behind his back, Deputy
Powers told plaintiff to put his hands behind his back because he was under arrest.
Docket No. 52 at 14, ¶ 75. Plaintiff did not put his hands behind his back and instead
resisted Deputy Powers’ attempt to restrain him. Docket No. 40 at 4, ¶ 7. Plaintiff
repeatedly stated “no” and “no, I’m not” in response to Deputy Powers’ commands. Id.
at 4, ¶¶ 7-9. Based on the undisputed facts, a reasonable officer would have
determined that plaintiff was resisting arrest.
Defendants assert that, after being taken to the ground, plaintiff “continued to
resist and refuse lawful orders to put his hands behind his back.” Id. at 4-5, ¶ 12.
However, plaintiff disputes that he resisted Deputy Powers between the time that
Deputy Powers took plaintiff to the ground and when Deputy Powers used the Taser on
him. Plaintiff contends that he could not place his hands behind his back because
Deputy Powers’ position on top of plaintiff made it impossible to do so. Docket No. 52
at 3, ¶ 12. The video cited by plaintiff supports his assertion. See Docket No. 41-1 at
6:50-7:14. Similarly, plaintiff disputes defendants’ assertion that he failed to obey
Deputy Powers’ command to roll on his back, arguing that he could not do so because
Deputy Gonzalez was on his legs. See Docket No. 52 at 3-4, 15, ¶¶ 12, 76. The record
also demonstrates that Deputy Powers alternated between conflicting commands,
ordering plaintiff to roll onto his back and, when plaintiff did so in response to the pain
from the Taser, ordered plaintiff to roll onto his stomach. Id. at 15, ¶ 77. “[W]hen a
suspect is unable to comply with police commands, his lack of compliance is not
resistance that could make force reasonable under the Graham factors.” Krueger, 154
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 16 of 32

17
F.4th at 1200. However, it is undisputed that plaintiff, while on the ground, obtained the
flashlight and threatened to harm Deputy Powers with it. See Docket No. 40 at 4, ¶ 11.
Furthermore, after Deputy Powers used the Taser against plaintiff, it is undisputed that
plaintiff resisted arrest by attempting to grab Deputy Powers’ Taser and later by
attempting to grab Deputy Powers’ hands rather than submitting to arrest. See id. at 5,
¶ 13. Thus, the undisputed facts show that plaintiff continued to resist until he was
handcuffed.
Considering “the totality of the circumstances and the full length of the use of the
force,” the Court finds that the plaintiff was resisting arrest and that the third Graham
factor weighs in favor of defendants. See Krueger, 154 F.4th at 1206.
d. Balancing the Graham Factors
Graham requires the court to “balance the nature and quality of the intrusion on
the individual’s Fourth Amendment interests against the countervailing governmental
interests at stake, and consider ultimately whether the officers’ actions are objectively
reasonable.” See Luethje v. Kyle, 131 F.4th 1179, 1198 (10th Cir. 2025) (internal
quotations, alteration, and citation omitted). “To assess whether an officer acted
reasonably in using force, a court must consider all the relevant circumstances,
including facts and events leading up to the climactic moment.” Barnes v. Felix, 605
U.S. 73, 76 (2025). “While the situation at the precise time of the use of force will often
be what matters most earlier facts and circumstances may bear on how a reasonable
officer would have understood and responded to later ones.” Teetz as next friend of
Lofton v. Stepien, 142 F.4th 705, 723 (10th Cir. 2025) (internal quotations and alteration
omitted) (citing Barnes, 605 U.S. at 723).
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 17 of 32

18
After plaintiff tried to walk away from Deputy Powers, Deputy Powers stopped
plaintiff from doing so and then ordered him several times to remove his hand from his
pockets, which plaintiff refused to do. Docket No. 40 at 4, ¶ 6. Deputy Powers then
attempted to place plaintiff’s arm behind his back, telling plaintiff he was under arrest,
but plaintiff resisted. Id., ¶ 7. When Deputy Powers told plaintiff that, if he continued to
resist, force would be used against him, plaintiff stated that force would be used against
Deputy Powers. Docket No. 52 at 2-3, ¶ 8. Deputy Powers took plaintiff to the ground
as plaintiff continued resisting, with Deputy Gonzalez restraining plaintiff’s legs. Id. at
15, ¶ 76. Even after Deputy Powers got plaintiff on the ground, plaintiff was able to
obtain a metal flashlight and told Deputy Powers he could harm him with it. Docket No.
40 at 4, ¶ 11. At this point, Deputy Powers used his Taser on plaintiff. Docket No. 52 at
15, ¶ 77. However, plaintiff nevertheless proceeded to grab Deputy Powers’ Taser and
grab his hand. Docket No. 40 at 5, ¶ 13. Deputy Powers eventually handcuffed
plaintiff. Docket No. 52 at 16, ¶ 81. In considering the Graham factors and the totality
of the circumstances, the Court finds that plaintiff fails to state a claim for excessive
force because defendants’ use of force, in response to actions by plaintiff that grew
increasingly threatening to their safety, was objectively reasonable.
Accordingly, the Court finds that plaintiff has not demonstrated a violation of his
Fourth Amendment right to be free from excessive force and defendants are entitled to
qualified immunity as to Claim Two. 15
15 Courts are “permitted to exercise their sound discretion in deciding which of
the two prongs of the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case.” Pearson, 555 U.S. at 236. Because plaintiff fails
to state a Fourth Amendment excessive force claim, the Court will not consider whether
defendants violated clearly established law.
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 18 of 32

19
B. Claim Three – §1983 Unreasonable Seizure Claim
The Fourth Amendment provides that the “right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated.” U.S. Const. amend. IV. A “seizure” of one’s person occurs when
a government actor terminates one’s freedom of movement through means intentionally
applied. See Brower v. County of Inyo, 489 U.S. 593, 596–97 (1989); Scott, 550 U.S. at
381. A government official “may make a seizure by a show of authority and without the
use of physical force, but there is no seizure without actual submission” to the official’s
show of authority. Brendlin v. California, 551 U.S. 249, 254 (2007); see also United
States v. Mosley, 743 F.3d 1317, 1324 (10th Cir. 2014). The Supreme Court has
identified three types of police encounters with citizens: consensual encounters,
investigative detentions, and arrests. Cortez v. McCauley, 478 F.3d 1108, 1115 (10th
Cir. 2007) (en banc). Investigative detentions and arrests are “seizures” within the
meaning of the Fourth Amendment. Id.
“An investigative detention, also called a Terry stop, is an encounter in which
police may ‘stop and briefly detain a person for investigative purposes.’” Morris v. Noe,
672 F.3d 1185, 1191 (10th Cir. 2012) (quoting United States v. Sokolow, 490 U.S. 1, 7
(1989)). An investigative detention is justified “if the officer has a reasonable suspicion
supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer
lacks probable cause.” Id. at 1191-92 (quoting Sokolow, 490 U.S. at 7). The officer
“must have a particularized and objective basis for suspecting the particular person
stopped of criminal activity.” Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir. 2000).
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 19 of 32

20
Reasonable suspicion requires more than a “hunch,” but is “considerably less than proof
by a preponderance of the evidence or that required for probable cause.” United States
v. Chavez, 660 F.3d 1215, 1221 (10th Cir. 2011). Reasonable suspicion is based on
the “totality of the circumstances.” Id. at 1222. “[A]n investigative detention must be
temporary and last no longer than is necessary to effectuate the purpose of the stop.”
Florida v. Royer, 460 U.S. 491, 500 (1983).
An arrest requires probable cause to believe that the arrestee committed a crime.
Fogarty, 523 F.3d at 1156; Cortez, 478 F.3d at 1115-16. “In a qualified immunity
context, the probable cause evaluation is a question of law appropriate for resolution by
the Court.” Shimomura v. Carlson, 17 F. Supp. 3d 1120, 1132 (D. Colo. 2014) (citing
Hunter v. Bryant, 502 U.S. 224, 228 (1991)). When determining whether an officer has
probable cause for an arrest, the court must “examine the events leading up to the
arrest, and then decide whether these historical facts, viewed from the standpoint of an
objectively reasonable police officer, amount to probable cause.” District of Columbia v.
Wesby, 583 U.S. 48, 56-57 (2018) (internal quotations and citation omitted). “Probable
cause exists if facts and circumstances within the arresting officer’s knowledge and of
which he or she has reasonably trustworthy information are sufficient to lead a prudent
person to believe that the arrestee has committed or is committing an offense.” York,
523 F.3d at 1210 (quoting Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir. 1995)).
Probable cause is not a high bar. Wesby, 583 U.S. at 57. “Because probable cause is
measured by an objective standard, ‘an arrest is lawful if the officer had probable cause
to arrest for any offense, not just the offense cited at the time of arrest or booking.’”
Mglej, 974 F.3d at 1161 (quoting Wesby, 583 U.S. at 54 n.2).
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 20 of 32

21
The Court considers whether the sequence of events following plaintiff and
defendants’ initial contact constitute an investigative detention or arrest. “A traffic stop
is an investigative detention analogous to a Terry stop.” United States v. Soto, 988 F.2d
1548, 1554 (10th Cir. 1993). Thus, “the detaining officer must have an objectively
reasonable articulable suspicion that a traffic violation has occurred or is occurring
before stopping the automobile.” See id. Because Deputy Powers observed that
plaintiff did not have a front license plate, in violation of Colo. Rev. Stat. § 42-3-
202(3)(a), he had reasonable suspicion, if not probable cause, to detain plaintiff for
purposes for conducting a traffic stop. See Docket No. 40 at 3, ¶ 1. Moreover, it was
within the scope of the traffic stop for defendant to ask plaintiff to exit his vehicle.
United States v. Polly, 630 F.3d 991, 998 (10th Cir. 2011) (it is “permissible during a
routine traffic stop for purposes of officer safety” to ask a driver to step out of his
vehicle). This is particularly true when an officer has concerns as to his safety due to
passing cars.
However, the initial scope of the traffic stop, which involved the missing front
license plate, was exceeded when Deputy Powers began questioning plaintiff regarding
his possible intoxication. In order to prolong the stop, Deputy Powers needed
reasonable suspicion that plaintiff was driving under the influence of alcohol or drugs.
See Leon v. Summit Cnty., 755 F. App’x 790, 793-94 (10th Cir. 2018) (unpublished)
(describing defendant’s actions to determine whether plaintiff was intoxicated as a
“typical investigative detention, which does not require probable cause but can be
conducted upon reasonable suspicion”). The parties dispute whether defendant
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 21 of 32

22
smelled alcohol on plaintiff’s breath during the traffic stop. 16 The Court agrees that
whether Deputy Powers smelled alcohol on plaintiff’s breath is a credibility issue that the
Court cannot resolve on a summary judgment motion. It is undisputed, however, that
plaintiff did not exhibit signs of impairment driving or when he stepped out of his vehicle.
Docket No. 52 at 6, 8, ¶¶ 26, 41. While it is undisputed that plaintiff indicated that he
would not take a preliminary breath test and that plaintiff refused Deputy Powers’
request to look at plaintiff’s eyes, see Docket No. 52 at 10, 13, ¶¶ 56-57, 64, this alone
cannot supply reasonable suspicion for DUI. See Florida v. Bostick, 501 U.S. 429, 437
(1991) (“a refusal to cooperate, without more, does not furnish the minimal level of
objective justification needed for a detention or seizure”). Thus, there is a dispute
regarding whether defendants had reasonable suspicion to prolong plaintiff’s detention
for purposes of the DUI investigation. Furthermore, defendants are not entitled to
qualified immunity on that portion of plaintiff’s unreasonable seizure claim that involves
the prolongation of plaintiff’s detention. It was clearly established at the time of the
traffic stop that “[a]n investigative detention must be temporary, lasting no longer than
necessary to effectuate the purpose of the detention. The scope of the detention must
be carefully tailored to its underlying justification.” United States v. Gutierrez-Daniez,
131 F.3d 939, 942 (10th Cir. 1997). Furthermore, it was clearly established that an
16 In their Statement of Undisputed Material Facts, defendants assert that Deputy
Powers observed “other indicia of intoxication.” Docket No. 40 at 3, ¶ 3. Because
defendants do not assert these “indicia” in their statement of facts, the Court will not
consider them. Id. Even if the Court could consider the other indicia, the Court cannot
find that defendants had reasonable suspicion for driving under the influence because
the video footage does not show plaintiff having slurred speech, imbalance, or
compromised motor skills. See Docket No. 52 at 9, ¶¶ 46-47 (citing Docket No. 41-1).
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 22 of 32

23
investigative detention cannot be prolonged on the basis of unrelated inquiries absent
reasonable suspicion. Rodriguez v. United States, 575 U.S. 348, 355 (2015)
In their reply brief, defendants argue that plaintiff is precluded from litigating the
issue of whether defendant had reasonable suspicion and probable cause to conduct
the DUI investigation. See Docket No. 57 at 10-12. Defendants state that, during
plaintiff’s jury trial, plaintiff filed a motion to suppress that asserted plaintiff’s “detention
and arrest were made without reasonable suspicion or probable cause.” Id. at 11.
Defendants indicate that the state court “found that Defendant Powers not only had
reasonable suspicion to conduct the investigatory stop, but had actual probable cause
for Plaintiff’s arrest for driving under the influence at the time Defendant Powers had
Plaintiff step out of the vehicle.” Id. (citing Docket No. 57-6 at 7). Specifically, the state
court found that, “at the time Deputy Powers had Mr. Schrecengost step out of the
vehicle, probable cause existed to believe that Mr. Schrecengost was driving under the
influence of alcohol.” Docket No. 57-6 at 7. The state court found that “Deputy Powers
could order Mr. Schrecengost out of the vehicle both for officer safety and because he
had probable cause to believe Mr. Schrecengost was driving under the influence” and
that “at the time Deputy Powers began the process of requesting that Mr. Schrecengost
perform voluntary roadside maneuvers, there was probable cause to arrest him for
driving under the influence.” Id. at 8. The state court thus concluded that, “at the time
Deputy Powers took hold of Mr. Schrecengost’s arm to place him under arrest, that
arrest was supported by probable cause.” Id.
“Under proper circumstances, federal courts accord preclusive effect to issues
decided by state courts.” Cortese v. Black, 838 F. Supp. 485, 492 (D. Colo. 1993). To
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 23 of 32

24
determine whether the court should give preclusive effect to the state court’s probable
cause determination, the court applies Colorado law. See Ortega v. City & Cnty. of
Denver, No. 11-cv-02394-WJM-CBS, 2013 WL 359934, at *3 (D. Colo. Jan. 30, 2013).
Under Colorado law, issue preclusion applies when:
(1) the issue is identical to an issue actually litigated and necessarily adjudicated
in the prior proceeding; (2) the party against whom estoppel was sought was a
party to or was in privity with a party to the prior proceeding; (3) there was a final
judgment on the merits in the prior proceeding; and (4) the party against whom
the doctrine is asserted had a full and fair opportunity to litigate the issues in the
prior proceeding.
Oaster Dev., LLC v. WD Consulting, 778 F. Supp. 3d 1168, 1176 (D. Colo. 2025)
(citation omitted).
The Court, however, declines to consider whether issue preclusion applies at this
stage because defendants did not raise this argument until their reply brief. See
Gutierrez v. Cobos, 841 F.3d 895, 902 (10th Cir. 2016) (“a party waives issues and
arguments raised for the first time in a reply brief.” (quoting Reedy v. Werholtz, 660 F.3d
1270, 1274 (10th Cir. 2011)); Perez v. City & Cnty. of Denver, 2023 WL 7486461, at *2
n.3 (10th Cir. Nov. 13, 2023) (“[W]e see no reason why the arguments raised by a party
for the first time in a reply brief in the district court should be evaluated differently [from
an appellant’s reply brief]. In either forum, waiting to raise an argument for the first time
in a reply brief robs the other party of a chance to respond and denies the court the
benefit of the adversarial process.”).
However, even assuming that defendants lacked reasonable suspicion for the
DUI investigation and that plaintiff is not precluded from litigating the issue, the Court
finds that defendants’ conduct following the DUI investigation did not violate plaintiff’s
Fourth Amendment right to be free from unreasonable seizure.
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 24 of 32

25
The Court first turns to the period of time after plaintiff walked away and Deputy
Powers grabbed plaintiff’s arm. “A citizen has the constitutional right to walk away from
a law enforcement officer who lacks probable cause or reasonable suspicion to detain
or seize him or her.” Romero v. Story, 672 F.3d 880, 889 (10th Cir. 2012). However,
during a Terry stop, officers are authorized to take “steps as were reasonably necessary
. . . to maintain the status quo during the course of the stop.” See United States v.
Hensley, 469 U.S. 221, 235 (1985); Moore v. Pederson, 806 F.3d 1036, 1044 n.11 (11th
Cir. 2015) (“In the Terry stop, the person is detained within the meaning of the Fourth
Amendment; he cannot simply walk away or otherwise avoid the encounter.”).
Assuming Deputy Powers lacked reasonable suspicion to investigate driving under the
influence, the initial purpose of the traffic stop had not been completed because Deputy
Powers had not yet issued plaintiff a citation for the missing front license plate. See
Docket No. 52 at 7, ¶ 29. Thus, the question is whether – despite the lawful purpose of
the investigative detention not yet being completed – plaintiff had the right to walk away
when the investigative detention had become prolonged without the requisite DUI
reasonable suspicion. The Court finds, even assuming that Deputy Powers unlawfully
prolonged the investigative detention, the fact that the Terry stop had not yet concluded
permitted Deputy Powers to keep plaintiff at the scene. See Leibel v. City of Buckeye,
556 F. Supp. 3d 1042, 1068 (D. Ariz. 2021) (where the evidence established that the
officer’s “investigation had not run its course at the time” plaintiff attempted to walk
away, the officer “was entitled to use force to keep [plaintiff] from leaving” during a Terry
stop). A suspect is not permitted to leave in the middle a traffic stop. See United States
v. Sullivan, 138 F.3d 126, 130–31 (4th Cir. 1998) (“a motorist during a routine traffic
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 25 of 32

26
stop is detained and not free to leave”); United States v. Acosta, 363 F.3d 1141, 1149
(11th Cir. 2004) (“traffic stops, like Terry stops generally, are indeed stops. A
reasonable person knows that he is not free to drive away from a traffic stop until it is
completed, just as a reasonable person knows that he is not free to walk away from a
Terry stop until it is over.”). Deputy Powers was therefore authorized within the scope
of the Terry stop to prevent plaintiff from walking back towards his automobile by
grabbing plaintiff’s arm. See Morris, 672 F.3d at 1192 (“Officers may restrain an
individual in order to maintain the status quo during the course of a Terry stop.”)
(internal quotations and citation omitted). 17
As Deputy Powers prevented plaintiff from walking away, plaintiff had his hand in
his pockets and refused Deputy Powers’ order to remove it. After plaintiff failed to
comply, defendant tried to place plaintiff’s arms behind his back in an attempt to restrain
him. Without exceeding the scope of a Terry stop, officers are permitted to take steps
“reasonably necessary to protect their personal safety.” See Hensley, 469 U.S. at 235.
The Tenth Circuit has approved forceful methods of restraint where officers “reasonably
feared for their safety.” See Morris, 672 F.3d at 1192 (“We have approved both a
takedown and the use of handcuffs during the course of a Terry stop, where the officers
reasonably feared for their safety.”) (collecting cases); see United States v. Salas-
17 The fact that a prolongation of detention was unlawful does not preclude the
Court from considering evidence that arose following the unlawful prolongation. See
Shaw v. Schulte, 36 F.4th 1006, 1017 (10th Cir. 2022) (“Considering the marginal
deterrent effect of applying the exclusionary rule within the § 1983 context with the fact
that not applying the rule would merely truncate the scope of a § 1983 action but not bar
pursuit of the action, we agree with the seeming consensus in our sibling circuits that
the exclusionary rule and fruit-of-the-poisonous-tree doctrine do not apply in the § 1983
context.”).
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 26 of 32

27
Garcia, 698 F.3d 1242, 1249 (10th Cir. 2012) (“The use of handcuffs or placing
suspects on the ground during a Terry stop does not necessarily turn a lawful Terry stop
into an arrest under the Fourth Amendment.”) (internal quotations, alteration, and
citation omitted). Here, where plaintiff refused to take his hand out of his pockets after
having just tried to walk away, the Court finds that a reasonable officer would have
feared for his safety and it was lawful for him to attempt to restrain plaintiff. In doing so,
Deputy Powers did not exceed the scope of the Terry stop. 18
The Court next turns to Deputy Powers’ takedown of plaintiff. The Tenth Circuit
has held that throwing a suspect to the ground, where the suspect “presented no threat
to officer safety and had not engaged in any suspicious activity,” transforms a Terry stop
into an arrest for which probable cause is required. See Morris, 672 F.3d at 1192;
Cortez, 478 F.3d at 1130 (“an unreasonable level of force transforms a Terry detention
into an arrest requiring probable cause”) (citation omitted). Nevertheless, “[a]lthough
Terry stops are normally non-intrusive, . . . law enforcement may (1) display some force,
(2) place suspects on the ground, (3) use handcuffs, or (4) detain suspects in law
enforcement vehicles, even in the absence of probable cause.” See Cortez, 478 F.3d at
1130; Gallegos v. City of Colorado Springs, 114 F.3d 1024, 1030 (10th Cir. 1997) (“as
long as the precautionary measures employed by officers during a Terry stop are
reasonable, they will be permitted without a showing of probable cause”). Here,
18 Although Deputy Powers stated during the struggle that plaintiff was under
arrest, his pronouncement is not dispositive as to whether plaintiff was subjected to an
arrest or investigative detention. See United States v. Diaz-Lizaraza, 981 F.2d 1216,
1221 (11th Cir. 1993) (“The character of a seizure as arrest or Terry stop depends on
the nature and degree of intrusion, not on whether the officer pronounces the detainee
‘under arrest.’”) (citing Dunaway v. New York, 442 U.S. 200, 212 (1979)).
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 27 of 32

28
defendants reasonably feared for their safety because plaintiff attempted to walk away,
had his hand in his pockets once stopped, and refused multiple commands to take his
hand out of his pockets. Furthermore, plaintiff resisted Deputy Powers’ attempt to
restrain him. Given plaintiff’s resistance, plaintiff’s subsequent threat to use force
against Deputy Powers, and the fact that less aggressive means of restraining plaintiff
had failed, it was reasonable for Deputy Powers to take plaintiff to the ground in an
attempt to restrain him. Not only did Deputy Powers’ conduct not exceed the scope of
the Terry stop, he also had probable cause at that point to believe that plaintiff had
committed the crime of Obstruction. Colo. Rev. Stat. § 18-8-104 provides in relevant
part:
A person commits obstructing a peace officer . . . when, by using or threatening
to use violence, force, physical interference, or an obstacle, such person
knowingly obstructs, impairs, or hinders the enforcement of the penal law or the
preservation of the peace by a peace officer, acting under color of his or her
official authority.
Colo. Rev. Stat. § 18-8-104(1)(a). Plaintiff refused to remove his hands from his
pockets, told Deputy Powers that force would be used against him, and resisted Deputy
Powers’ attempts to restrain him. These facts are sufficient to “lead a prudent person to
believe” that plaintiff had committed the crime of obstruction. See York, 523 F.3d at
1210. Thus, defendants had probable cause to arrest plaintiff.
Turning to Deputy Powers’ use of the Taser when plaintiff was on the ground, by
that point, not only had plaintiff threatened to use force against Deputy Powers before
the takedown, but plaintiff obtained a metal flashlight, held it in his hand, and threatened
to use it as a weapon against Deputy Powers, indicating that plaintiff was still a serious
threat to the officers’ physical safety. Under these circumstances, even if defendants
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 28 of 32

29
lacked probable cause to arrest plaintiff, the Court finds that Deputy Powers’ use of the
Taser did not transform the detention into an arrest because it was a reasonable use of
force given the threat to defendants’ safety. See United States v. Fields, 449 F. App’x
146, 148, 149 (3d Cir. 2011) (unpublished) (holding that officer’s use of a Taser did not
elevate the investigative detention to a arrest where officers used “physical force after
less aggressive means were unsuccessful” and the suspect did not “yield to the show of
authority and created an environment where the Officers felt threatened”); United States
v. Colon, 654 F. Supp. 2d 326, 333 (E.D. Pa. 2009) (holding that the officer’s “use of the
taser on the Defendant did not raise this confrontation to an arrest” where the officers
“suspected the Defendant was carrying contraband and, for their own safety and the
safety of others in the neighborhood, did not want to pursue the Defendant through
dimly lit streets”).
Following the use of the Taser, the Court need not determine whether the Terry
stop was transformed into an arrest because defendants had probable cause to believe,
not only that plaintiff committed the crime of obstructing a peace officer, see Colo. Rev.
Stat. 18-8-104(1)(a), but also that plaintiff had committed the crime of attempted assault
on a peace officer. Plaintiff was convicted of Obstruction by a jury in his state case,
demonstrating that there was probable cause to arrest on the basis of § 18-8-104.
Docket No. 40 at 5, ¶ 15; see Blake v. Hong, 2023 WL 382928, at *3 (10th Cir. Jan. 25,
2023) (“Because a jury convicted Mr. Blake, he cannot plausibly allege there was no
probable cause to issue the citation.”) (citing Cameron v. Fogarty, 806 F.2d 380, 388-89
(2d Cir. 1986) (“where law enforcement officers have made an arrest, the resulting
conviction is a defense to a § 1983 action asserting that the arrest was made without
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 29 of 32

30
probable cause”)). 19 Moreover, at this point in the encounter, plaintiff threatened to use
the metal flashlight as a weapon, grabbed Deputy Powers’ Taser, and grabbed Deputy
Powers’ hand, which prevented him for radioing for assistance. The Court finds that an
objectively reasonable officer would view these facts as establishing probable cause
that plaintiff had committed the crime of attempted assault. See Wesby, 583 U.S. at 56-
57.
Accordingly, the Court will dismiss that portion of Claim Three that alleges
defendants unreasonably seized plaintiff after he attempted to walk away. 20 Claim
Three will be limited to plaintiff’s claim that defendants unreasonably prolonged his
detention to conduct an investigation into whether plaintiff was driving under the
influence.
C. Claim One – State Claims for Wrongful Arrest and Excessive Force
Plaintiff brings claims for wrongful arrest and excessive force, in violation of Art. II
§ 7 of the Colorado Constitution, pursuant to Colo. Rev. Stat. § 13-21-131. Docket No.
19 The Court declines to find that plaintiff’s conviction for Obstruction prevents
him from bringing an unreasonable seizure claim. Although the jury convicted plaintiff of
Obstruction, it is unclear on which events the jury based its determination. For
example, if the basis for plaintiff’s Obstruction conviction did not arise until after plaintiff
grabbed the Taser and Deputy Powers’ hands, then plaintiff would not be precluded
from bringing an unreasonable seizure claim for any seizure that occurred before that
point. The Court is permitted to truncate plaintiff’s unreasonable seizure claim. For
instance, in Shaw, 36 F.4th at 1014, the Tenth Circuit considered plaintiff’s seizure as it
occurred at two points: (1) the initial prolongation of a traffic stop for a K-9 sweep and
(2) the prolongation after the K-9 alerted. Shaw denied summary judgment for the
officer on plaintiff’s claim as it related to the first seizure. See id. at 1016. However,
Shaw granted summary for the officer, regarding the second seizure, because probable
cause arose for the seizure after the K-9 alerted. See id. at 1017-1018.
20 Because plaintiff fails to state a Fourth Amendment unreasonable seizure
claim for this portion of Claim Three, the Court will not consider whether defendants
violated clearly established law. See Pearson, 555 U.S. at 236.
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 30 of 32

31
1 at 28-30. Given the Court’s finding that plaintiff has not demonstrated a Fourth
Amendment excessive force claim pursuant to § 1983, the Court finds that plaintiff
cannot show an excessive force violation under the Colorado Constitution. See
Woodall v. Godfrey, 553 P.3d 249, 257 (Colo. App. 2024) (“when determining whether
the force used to effect a seizure is reasonable under article II, section 7 of the
Colorado Constitution, courts should apply the ‘objective reasonableness’ standard
articulated in Graham”). “The Colorado Supreme Court has observed that Article II,
section 7 is ‘almost identical’ to the federal Fourth Amendment.” Shash v. City of
Pueblo, 770 F. Supp. 3d 1279, 1307 (D. Colo. 2025) (citing Colorado v. Rister, 803 P.2d
483, 489 (Colo. 1990)). Accordingly, the Court will dismiss that portion of Claim One
that asserts a claim for excessive force in violation of Art. II, § 7 of the Colorado
Constitution. Furthermore, the Court will dismiss that portion of plaintiff’s unreasonable
seizure claim under Claim One that does not concern the prolongation of the traffic stop
for purposes of the DUI investigation, i.e., after the point that plaintiff turned and started
to walk away.
IV. 	CONCLUSION
Therefore, it is
ORDERED that Defendants’ Motion for Summary Judgment [Docket No. 40] is
GRANTED in part. It is further
ORDERED that Claim Two is DISMISSED with prejudice. It is further
ORDERED that the portion of Claim Three that asserts a claim for unreasonable
seizure that does not concern the prolongation of plaintiff’s detention for the DUI
investigation is DISMISSED with prejudice. It is further
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 31 of 32

32
ORDERED that Claims Four, Five, and Six are DISMISSED with prejudice. It is
further
ORDERED that the portion of Claim One that asserts a claim for excessive force
is DISMISSED with prejudice. It is further
ORDERED that the portion of Claim One that asserts a claim for unreasonable
seizure that does not concern the prolongation of plaintiff’s detention for the DUI
investigation is DISMISSED with prejudice.
DATED March 30, 2026.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
United States District Judge
____	_____	__	____	__	_____	_____	__________	___	________	__	______ ______________________________________________________________________
Case No. 1:24-cv-00588-PAB-TPO Document 70 filed 03/30/26 USDC Colorado
pg 32 of 32