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Date: 05-09-2023
Case Style:
Case Number: 1:20-CV-02521
Judge:
Court: United States District Court for the District of Colorado (Denver County)
Plaintiff's Attorney:
Defendant's Attorney: Heidi Michelle Miller and Kerri Ann Borth
Description: Denver, Colorado civil rights lawyer represented Plaintiff who sued Defendant on an excessive force theory.
On August 23, 2018, at approximately 11:45 p.m., Deputy Jenkins observed Plaintiff [Helvie] make several traffic infractions while driving a Nissan pickup truck. Specifically, Deputy Jenkins observed [Helvie] turn without using a signal; accelerate, slow down and then accelerate to speeds between 52 and 74 miles per hour [in a posted 50-mile-per-hour zone (Aplt. App. 49)]; and stop almost a truck's length past the line for a stop sign. Deputy Jenkins activated his overhead lights, and [Helvie] pulled over his vehicle. Besides [Helvie], two female passengers and a large black dog were inside the Nissan truck.
According to [Helvie], his window was partially down when Deputy Jenkins approached [Helvie's] vehicle. According to Deputy Jenkins, he could smell the strong odor of burnt marijuana coming out of the window, though [Helvie] disputes having smoked marijuana that day. [Helvie] handed his driver's license and registration to Deputy Jenkins. [Helvie] had some difficulty providing his proof of insurance-which was on his phone-due to either poor cellular reception or [Helvie's] inability to correctly enter a passcode.
Deputy Jenkins noticed what appeared to be ash on [Helvie's] lap.[2]
N.2 Deputy Jenkins also maintains that he observed two marijuana bottles on the driver's side floorboard. [Helvie] has submitted an affidavit in which he claims that the marijuana bottles were under his car seat and thus not readily visible from outside the car. The Court will therefore treat Deputy Jenkins' observation of the marijuana bottles as a disputed fact and will not consider this fact for purposes of deciding the instant [summary judgment] motion.
According to [Helvie], Deputy Jenkins asked [Helvie] about the "white powder" in [Helvie's] lap and asked [Helvie] whether he had been drinking or smoking. [Helvie] maintains that he stated he did not need to answer Deputy Jenkins' questions. It is undisputed that [Helvie] then rolled up his window, which [Helvie] says he did because he was scared.
At this point, Deputy Jenkins opened the door of [Helvie's] vehicle. According to Deputy Jenkins, he believed that [Helvie] was operating a vehicle while under the influence and wanted to conduct further investigation. Deputy Jenkins asked [Helvie] to get out of the vehicle several times, but [Helvie] refused to comply. According to [Helvie], he did not get out of the vehicle because he observed Deputy Jenkins standing as if he had a gun or a taser, and [Helvie] was terrified.
When [Helvie] did not get out of the vehicle, Deputy Jenkins grabbed [Helvie's] arm and ordered him out of the vehicle. According to Deputy Jenkins, [Helvie] pulled away. Deputy Jenkins then grabbed [Helvie's] leg and pulled him out of the vehicle, causing [Helvie] to land on his back. As Deputy Jenkins was pulling [Helvie] out of the vehicle, he observed a handgun in the pocket of the driver's side door. [3]
N.3 In an affidavit, [Helvie] states that Deputy Jenkins "must" have seen the firearm when he searched the truck after having already subdued [Helvie]. But, unlike with the marijuana bottles, [Helvie] does not dispute Deputy Jenkins' statement that the handgun was in the pocket of the driver's side door, and thus could have been visible to Deputy Jenkins as he was pulling [Helvie] out of the vehicle. And [Helvie] does not offer any evidence to contradict the statement in Deputy Jenkins' police report that he observed the firearm as he was pulling [Helvie] out of the vehicle. Thus, [Helvie's] conclusory and self-serving affidavit, which provides nothing more than a guess as to when Deputy Jenkins observed the firearm, does not create a genuine issue of material fact as to when Deputy Jenkins observed the firearm. Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991) (To create a genuine issue of material fact, "the nonmovant's affidavits must be based upon personal knowledge and set forth facts that would be admissible in evidence; conclusory and self-serving affidavits are not sufficient.").
Deputy Jenkins then dragged [Helvie] to the back of [Helvie's] vehicle, which Deputy Jenkins stated he needed to do in order to remove [Helvie] from close proximity to the gun. According to [Helvie], Deputy Jenkins then dropped a knee into [Helvie's] chest, fracturing two of [Helvie's] ribs.
Eventually, Deputy Jenkins was able to handcuff [Helvie] and place [Helvie] in the patrol car. Deputy Jenkins did not use any force on [Helvie] after he was fully restrained. Deputy Jenkins searched [Helvie's] vehicle and found a loaded .45 caliber handgun, unsealed bottles of marijuana, and a glass pipe that had marijuana residue. [Helvie] requested medical attention and Deputy Jenkins called for an ambulance. [Helvie] was taken to the hospital where he was treated and then medically cleared for transport to the Adams County Detention Facility.
Outcome: Summary judgement in favor of Defendant affirmed on appeal.
Plaintiff's Experts:
Defendant's Experts:
Comments: