Opinion
Civil Action 21-cv-02011-PAB-KLM
07-11-2022
ANDREW THOMAS SCOTT, Plaintiff, v. CHARLES DAVID HILLER, individually and in his official capacity as a Trooper in the Colorado State Patrol, MATTHEW PACKARD, individually and in his official capacity as Colonel of the Colorado State Patrol, and MICHAEL ALLEN, individually and in his official capacity as the District Attorney for the 4th Judicial District of Colorado, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Kristen L. Mix United States Magistrate Judge.
This matter is before the Court on Defendants Charles David Hiller (“Hiller”) and Matthew Packard's (“Packard”) (collectively, the “CSP Defendants”) Motion to Dismiss [#58] (“CSP Defendants' Motion”) and Defendant Michael Allen's (“Allen”) Motion to Dismiss [#71] (“Defendant Allen's Motion”). Andrew Thomas Scott (“Plaintiff”) filed Responses [#74, #78], and Defendants filed Replies [#86, #87]. The Court has reviewed the Motions, the Responses, the Replies, the entire file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court recommends that the CSP Defendants' Motion [#58] be GRANTED, and that the claims against the CSP Defendants in both their individual and official capacities be dismissed without prejudice. It is further recommended that the claims against Defendant Allen in his individual capacity be dismissed without prejudice, and that Defendant Allen's Motion [#71] be DENIED as to the claims against him in his official capacity.
I. Background
Plaintiff is a process server and owns a process serving business in Colorado. Am. Compl. [#35] ¶¶ 13-15. On March 12, 2021, Joseph C. Maher (“Mr. Maher”), an attorney for the Colorado Department of Revenue (“DOR”), asked Plaintiff to serve a subpoena on Defendant Hiller, a Colorado State Patrol (“CSP”) trooper. Id. ¶ 22. From March 12, 2021, through March 16, 2021, Plaintiff made several attempts to coordinate with Defendant Hiller about a time and place for service. Id. ¶ 23-28. On the morning of March 17, 2021, Plaintiff traveled to Defendant Hiller's residence. Id. ¶ 31. Defendant Hiller's wife answered the door. Id. ¶ 32. Defendant Hiller refused to come to the door to accept service. Response [#74] at 4. Plaintiff taped the subpoena to Defendant Hiller's door. Am. Compl. [#35] ¶ 38. Plaintiff wore a body camera that generated a video of his visit. Id. ¶ 41.
After taping the subpoena to the door, Plaintiff sent a text message to Defendant Hiller, stating “I did everything I could to avoid putting your home address on the affidavit which will be filed in this case and the criminals will see. Now I'll fill out a document explaining your wife's information and explaining that you refuse service ....” Pl.'s Ex. 2 [#74-2] at 4. Plaintiff then prepared an affidavit of service explaining Plaintiff's efforts to serve Defendant Hiller. Am. Compl. [#35] ¶ 44; see Pl.'s Ex. 2 [#74-2] at 7. In the affidavit of service, Plaintiff included Defendant Hiller's full name, date of birth, personal address, personal phone number, personal vehicle description and license plate number, and Defendant Hiller's wife's full name and date of birth. Am. Compl. [#74] ¶ 44.
For reasons discussed later in this section, the Motions [#58, #71] are resolved under Rule 12(b)(1), not Rule 12(b)(6). Accordingly, the Court considers the evidence submitted by the parties. See Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995).
Within fifteen minutes after Plaintiff left Defendant Hiller's residence, Defendant Hiller emailed Plaintiff to coordinate a meeting place to complete service. Pl.'s Ex. 2 [#74-2] at 5. Plaintiff responded to that email, stating that he would “file the attached affidavit in this case” and that “it's out of [his] hands now.” Id. at 6. Plaintiff attached the notarized affidavit of service in the email. Id. Plaintiff also emailed the affidavit of service to Mr. Maher's office. Pl.'s Aff. [#74-13] at 2. Mr. Maher agreed to redact Defendant Hiller's personal information from the affidavit of service before sending the served subpoena to the DOR. See Pl.'s Ex. 3 [#74-3] at 2.
Neither Plaintiff nor Defendants provide any correspondence between Defendant Hiller and Mr. Maher showing that Hiller specifically requested that his personal information be removed. However, after Mr. Maher indicated that Defendant Hiller's personal information must be redacted, Hiller responded to Mr. Maher stating, “I appreciate you agreeing to remove my family's personal information, and my personal information from [the Affidavit of Service].” Pl.'s Ex. 2 [#74-3] at 2.
On or before March 23, 2021, Defendant Hiller filed an administrative complaint against Plaintiff with the Colorado Department of Regulatory Agencies, Office of Private Investigator Licensure. See Pl.'s Ex. 4 [#74-4] at 3. On April 7, 2021, Defendant Hiller also submitted a complaint to the Process Servers Association of Colorado (“PSACO”). See Pl.'s Ex. 9 [#74-9] at 4. Plaintiff alleges that Defendant Hiller's complaints implicitly assert a violation of a Colorado criminal statute, Colo. Rev. Stat. § 18-9-313(2.7) (the “Statute”), which states:
It is unlawful for a person to knowingly make available on the internet personal information about a protected person or the protected person's
immediate family if the dissemination of personal information poses an imminent and serious threat to the protected person's safety or the safety of the protected person's immediate family and the person making the information available on the internet knows or reasonably should know of the imminent and serious threat.Id. A violation of the Statute is a class 1 misdemeanor. See Colo. Rev. Stat. § 18-9313(3). Defendant Hiller's complaints did not reference or cite to the Statute; hence, the basis for Plaintiff's assertion that Defendant Hiller alluded to the Statute in his complaints is unclear.
The term “protected person” includes peace officers. Colo. Rev. Stat. § 18-9-313(1)(n). Defendant Hiller is a peace officer and a protected person under the Statute because he is employed as a CSP trooper. Am. Compl. [#35] ¶ 11. Defendant Hiller's wife is a protected person under the Statute because she is the spouse of a protected person under the Statute. Id. ¶ 12.
Plaintiff filed responses to Defendant Hiller's complaints with the respective offices. See Pl.'s Ex. 7 [#74-7]; Pl.'s Ex. 10 [#74-10]. The Office of Private Investigator Licensure ultimately dismissed Defendant Hiller's complaint; however, PSACO expelled Plaintiff for violating the PSACO Code of Ethics and the Statute. Pl.'s Ex. 11 [#74-11] at 2.
Plaintiff commenced this action on July 26, 2021. See Compl. [#1]. On January 13, 2022, Plaintiff filed the First Amended Complaint [#35] seeking declaratory relief regarding the constitutionality of the statute, as discussed further below. According to Plaintiff, Defendant Hiller “asserted salacious and false accusations against [Plaintiff] in an overt effort to undercut [Plaintiff's] professional integrity, reputation, and credentials.” Response [#74] at 1. Plaintiff “intends to exercise his right to free speech by publishing his video and affidavit of service on the internet [that include personal identifying information of Defendant Hiller and his wife] to defend against [Defendant] Hiller's accusations by showing the truth to the public and to hold this vindictive officer to account.” Pl.'s Aff. [#74-13] at 2. Plaintiff has not yet publicly published the affidavit of service nor any of Defendant Hiller or his wife's personal information on the internet due to the threat of prosecution under the Statute. Id.
The CSP Defendants allege, however, that Plaintiff “has already admitted that he has taken several public measures to refute Trooper Hiller's claims, yet he has faced no credible threat of prosecution.” CSP Defs.' Reply [#87] at 2. It is unclear what conduct the CSP Defendants are referring to.
Plaintiff “seeks a declaration that the Statute is unconstitutional on its face[ ]” (Amended Complaint [#35] ¶ 94), and “asks this Court to determine whether the Statute can constitutionally proscribe him from publicly defending himself because his evidence contains [Defendant] Hiller's identifying information” (Response [#74] at 2). Plaintiff also “seeks a declaration that the Statute is unconstitutional as applied to publication of the Video, the Affidavit of Service, and [Defendant] Hiller's personal identifying information contained therein.” Am. Compl. [#35] ¶ 103. As to the alleged unconstitutionality of the Statute, Plaintiff claims that it has a chilling effect on the exercise of his First Amendment rights to free speech and free press due to his fear of future arrest and prosecution if he publishes Defendant Hiller's personal information. Id. at 17-20.
In the CSP Defendants' Motion [#58], the CSP Defendants contend that Plaintiff's claims against them should be dismissed under Fed.R.Civ.P. 12(b)(1) because (1) they are not proper Ex parte Young official capacity defendants and cannot provide the protective relief Plaintiff seeks; (2) any future publication of Defendant Hiller's personal information would not involve Defendant Hiller in his official capacity and therefore he still would not be a proper Ex parte Young defendant; and (3) even if the CSP Defendants are proper Ex parte Young defendants, Plaintiff cannot establish injury in fact and does not have Article III standing. Defendant Allen's Motion [#71] contends that Plaintiff's claims should be dismissed under Rule 12(b)(1) because Plaintiff does not have standing and cannot establish injury in fact.
See Ex parte Young, 209 U.S. 123 (1908).
While Defendant Allen filed his Motion [#71] pursuant to both Rules 12(b)(1) and 12(b)(6), he only asserts an argument as to Plaintiff's standing, which the Court finds should be addressed under Rule 12(b)(1). See Creek Red Nation, LLC v. Jeffco Midget Football Ass'n, Inc., 175 F.Supp.3d 1290, 1293 (D. Colo. 2016). Thus, the Court analyzes both Motions [#58, #71] under that rule.
II. Standard of Review
The purpose of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) is to test whether the Court has jurisdiction to properly hear the case before it. Because “federal courts are courts of limited jurisdiction,” the Court must have a statutory basis to exercise its jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); Fed.R.Civ.P. 12(b)(1). Statutes conferring subject-matter jurisdiction on federal courts are to be strictly construed. F & S Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). “The burden of establishing [subject-matter jurisdiction] rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) may take two forms: a facial attack or a factual attack. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). When reviewing a facial attack on a complaint, the Court accepts the allegations of the complaint as true. Id. By contrast, when reviewing a factual attack on a complaint, the Court “may not presume the truthfulness of the complaint's factual allegations.” Id. at 1003. With a factual attack, as in this case, the moving party challenges the facts upon which subject-matter jurisdiction depends. Id. The Court therefore must make its own findings of fact. Id. In order to make its findings regarding disputed jurisdictional facts, the Court “has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing.” Id. (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990); Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir.), cert. denied, 484 U.S. 986 (1987)). The Court's reliance on “evidence outside the pleadings” to make findings concerning purely jurisdictional facts does not convert a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) into a motion for summary judgment pursuant to Fed.R.Civ.P. 56. Id.
While a court is “required to convert a Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6) motion or a Rule 56 summary judgment motion when resolution of the jurisdictional question is intertwined with the merits of the case,” id., the Court does not find the requisite interconnection here.
III. Analysis
Plaintiff asserts his claims against Defendants in both their individual and official capacities, and requests prospective relief in the form of declaratory relief pursuant to Ex parte Young. See generally Am. Compl. [#35]. The Court first addresses the CSP Defendants' argument that Plaintiff's official capacity claims should be dismissed because they are not proper Ex parte Young defendants. The Court then addresses the claims against Defendants in their individual capacity, and finally addresses the issue of standing and injury in fact.
A. Whether the CSP Defendants in Their Official Capacities Are Proper Ex parte Young Defendants
“The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court.” Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001); see also Wagoner Cnty. Rural Water Dist. No. 2 v. Grand River Dam Auth., 577 F.3d 1255, 1258 (10th Cir. 2009) (“The Eleventh Amendment is a jurisdictional bar that precludes unconsented suits in federal court against a state and arms of the state.”). “And because an ‘official capacity suit is, in all respects other than name, to be treated as a suit against the entity,' the Eleventh Amendment provides immunity ‘when [s]tate officials are sued for damages in their official capacity.'” Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013) (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)). Ex parte Young operates as an exception to this rule. Id.; see Ex parte Young, 209 U.S. 123 (1908). As explained by the Tenth Circuit, the Ex parte Young exception permits “‘suits against state officials seeking to enjoin alleged ongoing violations of federal law.'” Peterson, 707 F.3d at 1205; see also Hill v. Kemp, 478 F.3d 1236, 1255 (10th Cir. 2007) (stating that under Ex parte Young, “the Eleventh Amendment generally will not operate to bar suits so long as they (i) seek only declaratory and injunctive relief rather than monetary damages for alleged violations of federal law, and (ii) are aimed against state officers acting in their official capacities, rather than against the State itself”).
When a plaintiff sues a state official to enjoin the enforcement of an allegedly unconstitutional state law, the state official “must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the state, and thereby attempting to make the state a party.” Ex parte Young, 209 U.S. at 157; see also Peterson, 707 F.3d at 1206 (“Ex parte Young requires a nexus between the defendant and ‘enforcement' of the challenged statute.”). To have a connection with the enforcement of a statute, “the defendant must have a particular duty to enforce the statute in question and a demonstrated willingness to exercise that duty.” Id. (citing Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 828 (10th Cir. 2007) (internal quotation marks omitted)). “General authority to enforce the laws of the state is an insufficient ground for abrogating Eleventh Amendment immunity.” S.C. Wildlife Fed'n v. Limehouse, 549 F.3d 324, 333 (4th Cir. 2008) (internal citation and quotation marks omitted). The particularized connection requirement ensures that if relief is granted, an injunction or declaratory relief will actually be effective with respect to Plaintiff's underlying claim. See id.
Plaintiff argues that the Ex parte Young exception applies “when an official has a ‘general power' or ‘authority to ask' for ‘enforcement of any law,' even though the official made [sic] not have a ‘duty' to enforce the particular law challenged.” Response [#74] at 12. However, the Tenth Circuit has held that a generalized duty is insufficient to apply the Ex parte Young exception; instead, an Ex parte Young defendant must have a particular duty to enforce the challenged statute. Hendrickson v. AFSCME Council 18, 992 F.3d 950, 955 (10th Cir. 2021).
In the case at hand, Defendant Hiller is alleged to be a CSP trooper and Defendant Packard is alleged to be the Colonel for the CSP. See CSP Defs.' Motion [#58] at 4 (citing Am. Compl. [#35] at 1-2). Plaintiff does not dispute that in Colorado, “[t]he decision to prosecute is within the exclusive province of the district attorney.” People v. Kurz, 847 P.2d 194, 196 (Colo.App. 1992) (citing Colo. Const. art. VI, § 13). Plaintiff argues, however, that the Ex parte Young exception is not limited to prosecutors, and that because the CSP Defendants have the power to make criminal arrests while carrying out their primary duties and can refer cases to a district attorney's office, the CSP Defendants are proper Ex parte Young official capacity defendants. Response [#74] at 13.
As Defendant Allen is the elected District Attorney for Colorado's Fourth Judicial District (Def. Allen's Motion [#71] at 2) with apparent prosecutorial powers, he does not argue that he is an improper defendant under Ex parte Young.
The Court rejects this argument, finding that the connection Plaintiff alleges to exist between the CSP Defendants and the ability to enforce the Statute against Plaintiff is too attenuated. CSP troopers only have the power to make criminal arrests if, during an officer's exercise of powers or performance of regular duties related to motor vehicles and traffic enforcement, probable cause is established that a violation of a criminal law has occurred. Colo. Rev. Stat. § 24-33.5-212(1)(a)(I). The CSP troopers' power to make criminal arrests thus would not apply to a violation of the Statute. Further, there is no statute that confers on CSP troopers or employees the power or the authority to prosecute crimes. As the CSP Defendants highlight, “law enforcement officers can refer cases to a district attorney's office, [but] they cannot independently bring charges, and district-level prosecutors retain the ultimate - and sole - authority to determine whether charges will be filed and the nature of the charges that are filed.” CSP Defs.' Motion [#58] at 8.
Consistent with the foregoing, Defendant Packard, in his capacity as Colonel of the CSP, has declared that he does “not possess any prosecutorial authority and [does] not have the ability to criminally prosecute any person, including pursuant to section 189-313 of the Colorado Revised Statutes.” Packard Aff. [#87-1] at 2; see also Packard Aff. [#58-2]. Defendant Hiller, in his capacity as a trooper with CSP, has also declared that he does “not possess any prosecutorial authority and [does] not have the ability to criminally prosecute any person.” Hiller Aff. [#58-1] at 2. Both CSP Defendants have stated that they have not referred, nor have any intention to refer, Plaintiff to any law enforcement agencies for criminal investigation or prosecution pursuant to the Statute based on Plaintiff's conduct to date. Id.; Packard Aff. [#87-1] at 2. The CSP Defendants further assert to their knowledge that no CSP employee intends to refer Plaintiff to any law enforcement agency or to any district attorney's office for criminal investigation or prosecution pursuant to the Statute based on Plaintiff's conduct to date. Hiller Aff. [#58-1] at 2; Packard Aff. [#87-1] at 2.
Plaintiff argues, however, that the “exercise of [Defendant Packard's] supervisory power and [his] authority to compel compliance from [subordinates] provide[s] the requisite nexus” for the Ex parte Young exception to apply. Response [#74] at 14. The Court rejects this argument, as Plaintiff as not shown that Defendant Packard's supervisory power extends in any manner to enforcement or administration of the Statute. See Kitchen v. Herbert, 755 F.3d 1193, 1204 (10th Cir. 2014) (holding that “a state official is a proper defendant if he is ‘responsible for general supervision of the administration by the local . . . officials' of a challenged provision”) (quotation omitted).
Plaintiff also argues that Defendant Hiller is a proper Ex parte Young defendant because he is personally involved and “invoked his status as a Trooper and thus as a Peace Offer [sic] to implicitly assert a violation of the Statute.” Response [#74] at 14. Plaintiff argues that because the Statute “protects Peace Officers as a class,” Defendant Hiller may be, uniquely, “both the complaining ‘victim' while at the same time possess authority to make arrests or refer complaints to prosecuting authorities.” Id. Defendant Hiller became personally involved, according to Plaintiff, because he evaded service of a subpoena and invoked his status as a CSP trooper when he filed complaints against Plaintiff. Plaintiff contends that “when ‘relief [is] sought under general law from wrongful acts of officials,' then ‘the immunity of the sovereign does not extend to wrongful individual action and the citizen is allowed a remedy against the wrongdoer personally.'” Id. (quoting Great N. Life Ins. Co. v. Read, 322 U.S. 47, 51 (1944)).
The Court finds as to the foregoing argument that Plaintiff is conflating the distinction between official and individual capacity. The CSP Defendants have dispelled any contention that they could use their status as state officials to enforce the Statute against Plaintiff for any future proscribed conduct. While Defendant Hiller, as the protected person under the Statute and a potential victim if his personal information is published, has declared that he “reserve[s] the right to request that a law enforcement agency or district attorney's office investigate [Plaintiff's] actions[,]” he makes clear that he “will be doing so in [his] capacity as a private citizen and not in [his] official capacity as a CSP Trooper.” Hiller Aff. [#58-1] at 2. Defendant Packard has also clarified that in “any future complaint or investigation regarding whether Plaintiff has violated § 18-9-313 . . . as the allegation relates to [Defendant] Hiller as a potential victim, then the CSP would not be the law enforcement agency investigating the allegations.” Packard Aff. [#87-1] at 2. Defendant Packard has further explained that Defendant Hiller, as a potential victim, would have “to pursue any complaint with the relevant local law enforcement agency in the jurisdiction in which the alleged actions occurred.” Id. The Court thus finds that, as a protected person under the Statute, Defendant Hiller would not have any power to file charges or otherwise enforce the Statute. As the CSP Defendants note, when a victim makes a complaint of a violation of a criminal law, enforcement of that law occurs when the prosecutor decides to file criminal charges. Reply [#87] at 7. This decision is solely within the prosecutor's discretion. Id. (citing United States v. Armstrong, 517 U.S. 456, 464 (1996)).
Thus, Plaintiff fails to establish, through affidavits or otherwise, that the CSP Defendants have a particular duty to enforce the Statute or any demonstrated willingness to exercise such duty. See Peterson, 707 F.3d at 1206. Plaintiff has not refuted the CSP Defendants' affidavits as to this issue, which definitively state that they do not hold prosecutorial powers to enforce the Statute. Plaintiff therefore fails to establish that the CSP Defendants have a “connection with the enforcement” of the Statute. See Ex parte Young, 209 U.S. at 157. Finding no connection with the enforcement of the Statute, the Court concludes that the CSP Defendants are not proper Ex parte Young official capacity defendants. Id.
Accordingly, the Court recommends that the CSP Defendants' Motion [#58] be granted as to this issue, and that Plaintiff's official capacity claims against the CSP Defendants be dismissed without prejudice. See Albert v. Smith's Food & Drug Ctrs., Inc., 356 F.3d 1242, 1249 (10th Cir. 2004) (“In cases where the district court has determined that it lacks jurisdiction, dismissal of a claim must be without prejudice.”).
B. The Claims Against Defendants in Their Individual Capacities
As previously noted, Plaintiff has sued Defendants in both their official and individual capacities. As to the individual capacity claims, the CSP Defendants correctly note that a plaintiff suing under 42 U.S.C. § 1983 “‘may sue individual-capacity defendants only for money damages.'” Reply [#87] at 3 (quoting Brown v. Montoya, 662 F.3d 1152, 1161 n.5 (10th Cir. 2011)). Here, Plaintiff has not sought monetary damages and seeks only declaratory relief. Accordingly, the Court recommends that the individual capacity claims against Defendants, who are all state officials, be dismissed without prejudice. Albert, 356 F.3d at 1249. Further, since the Court has recommended dismissal of the CSP Defendants in both their individual and official capacities, it is recommended that they be dismissed from the case.
C. Whether Plaintiff Satisfies Article III's Standing Requirements
Both of the Motions to Dismiss [#58, #71] argue that Plaintiff's allegations fail to satisfy Article III's standing requirements because he cannot establish an injury in fact. Def. Allen's Motion [#71] at 4; CSP Defs.' Motion [#58] at 9-10. Defendants contend that Plaintiff's injury is “purely speculative[,]” and that Plaintiff offers no well-pled allegations showing a credible threat of prosecution in his Complaint. Def. Allen's Motion [#71] at 4-5; CSP Defs.' Motion [#58] at 9-10. Defendants support their argument that Plaintiff cannot show a credible threat of prosecution through their affidavits and declaration. Id. at 5; see Allen Decl. [#71-1]; Hiller Aff. [#58-1]; Packard Affs. [#58-2, #87-1].
While the CSP Defendants have already been dismissed on other grounds, they make this argument as an additional basis for dismissal.
Article III of the United States Constitution limits the jurisdiction of the federal courts to actual cases or controversies. U.S. Const. art. III, § 2, cl. 1. One “element of the case-or-controversy requirement is that Plaintiff must establish that he has standing to sue.” Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408 (2013) (internal citations and quotation marks omitted). To satisfy Article III's standing requirements, a plaintiff must show: “(1) [he] has suffered an ‘injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” S. Utah Wilderness All. v. Palma, 707 F.3d 1143, 1153 (10th Cir. 2013) (quoting Friends of the Earth v. Laidlaw Env't Servs., 528 U.S. 167, 180-81 (2000) (internal citation omitted)).
When prospective relief is sought “‘the plaintiff must be suffering a continuing injury or be under a real and immediate threat of being injured in the future.'” Colo. Cross Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205, 1211 (10th Cir. 2014) (quoting Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004)). In pre-enforcement criminal statute challenges, such as asserted here, a plaintiff must allege “(1) an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and (2) there exists a credible threat of prosecution thereunder.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) (internal citation and quotation marks omitted). To determine whether a credible threat of prosecution exists, there are at least three factors for the Court to weigh: “(1) whether the plaintiff showed past enforcement against the same conduct; (2) whether authority to initiate charges was not limited to a prosecutor or an agency and, instead, any person could file a complaint against the plaintiffs; and (3) whether the state disavowed future enforcement.” 303 Creative LLC v. Elenis, 6 F.4th 1160, 1174 (10th Cir. 2021) (internal quotation marks omitted). Plaintiff need not establish a credible threat of prosecution under all three factors. Susan B. Anthony List, 573 U.S. at 159-61 (citing several cases that “illustrate[ ] circumstances under which plaintiffs may bring a preenforcement challenge”). See Steffel v. Thompson, 415 U.S. 452, 459 (1974) (finding plaintiff's concern with arrest was not chimerical because his companion was prosecuted for identical conduct); Holder v. Humanitarian Law Project, 561 U.S. 1, 16 (2010) (finding plaintiff faced credible threat when government declined to disavow prosecution).
Defendant Allen argues that Plaintiff's injury must be analyzed under the 303 Creative factors in addition to a three-part test established in Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1089 (10th Cir. 2006). Def. Allen's Motion [#71] at 6. However, the Court finds that the subsequent standard established in Susan B. Anthony List and 303 Creative is controlling, as a plaintiff may have standing despite the absence of prior speech. 303 Creative, 6 F.4th at 1170 (finding plaintiffs had an injury in fact even though they “ha[d] not yet offered wedding-related services, or published the Proposed Statement, because [plaintiffs] [were] unwilling to violate CADA” prior to filing a lawsuit).
Plaintiff does not provide any examples in the First Amended Complaint [#35] or his Responses [#74, #78] of Defendants enforcing the Statute against other individuals. Further, Plaintiff does not show that the CSP Defendants have control over enforcement. Plaintiff argues, however, that “[t]he evidence of past enforcement is in the exclusive control of the [sic] Mr. Allen and he has not spoken to this matter.” Response [#78] at 8. Plaintiff further argues that “[t]he court cannot assume, from his silence, that there is no past enforcement.” Id. The Court disagrees. Plaintiff has the burden to show that the Statute was enforced in the past, and has failed to meet that burden. As Defendant Allen highlights, “Plaintiff could have submitted a request under CCJRA or CORA requesting a report of prior problems under the [S]tatute, but apparently, he elected not to do so.” Reply [#86] at 5 n.1. Because Plaintiff points only to Defendant Allen's silence on the matter and does not provide allegations or evidence of past enforcement, the Court cannot assume such past enforcement exists against other individuals engaging in conduct similar to that Plaintiff wishes to undertake.
The Court next considers whether any person could initiate charges against Plaintiff. Though Plaintiff acknowledges the three 303 Creative factors in his Responses [#74, #78], Plaintiff does not further assert any position on the matter. The CSP Defendants also do not address the issue. Defendant Allen asserts that “members of the public may not initiate prosecutions against Plaintiff for an alleged violation of the challenged statute.” Reply [#86] at 5. Because prosecutors hold the exclusive power to prosecute crimes in Colorado, the Court finds that authority to initiate charges is limited to a prosecutor and Plaintiff is not at risk of members of the public, including Defendant Hiller in his capacity as a private citizen, filing charges against him. See Kurz, 847 P.2d at 196; Colo. Const. art. VI, § 13.
Finally, the Court considers whether Defendants have disavowed enforcement of the Statute against Plaintiff should he publish the video and affidavit of service containing Defendant Hiller's personal information. In Section III.A, supra, the Court determined that the CSP Defendants lack prosecutorial powers to enforce the Statute. Further, the CSP Defendants have made efforts to demonstrate disavowal. Both CSP Defendants submitted affidavits stating that they have not referred, nor have any intention to refer, Plaintiff to any law enforcement agencies based on Plaintiff's conduct to date. See Hiller Aff. [#58-1] at 2; Packard Aff. [#87-1] at 2. The CSP Defendants have also made clear that if Plaintiff publishes Defendant Hiller's personal information in the future, the CSP agency would not be investigating any alleged violations of the Statute involving Plaintiff. Packard Aff. [#87-1] at 2. Instead, if Defendant Hiller pursued a complaint in his individual capacity, he would have to report to the relevant local law enforcement agency rather than the CSP. Id. The Court finds that Plaintiff does not risk prosecution by the CSP Defendants if he publishes Defendant Hiller's personal information in the future because the CSP Defendants lack prosecutorial powers to enforce the Statute and have further disavowed enforcement even if they held prosecutorial powers. Accordingly, the Court concludes that Plaintiff has not shown an injury in fact or standing to challenge the Statute as to his claims against the CSP Defendants, and recommends that this is another basis to dismiss these Defendants without prejudice from the case.
On the other hand, the Court finds that Defendant Allen has not specifically disavowed enforcement of the Statute against Plaintiff should he publish the video and affidavit of service containing Defendant Hiller's personal information. Defendant Allen filed an affidavit declaring that he reviewed the District Attorney's Office's (the “Office”) files and found no information indicating that the Office has filed any criminal charges against Plaintiff for violating the Statute. Def. Allen's Aff. [#71-1] at 1. Defendant Allen also declared that, “[t]o [his] knowledge, the Office has never threatened to prosecute [Plaintiff] for violation of C.R.S. § 18-9-313.” Id. at 2. Plaintiff argues that he faces a credible threat of prosecution because Defendant Allen “. . . declined to disavow intentions to enforce the Statute against [him] should he publish the video and affidavit of service . . . .” Response [#78] at 9. Defendant Allen's only response is that “while [he] has not disavowed any possibility of future prosecution, it is ‘not necessary for defendants [ ] to refute and eliminate all possible risk that the statute might be enforced[.]'” Reply [#86] at 5 (quoting Mink v. Suthers, 482 F.3d 1244, 1255 (10th Cir. 2007)).
The Mink case is distinguishable. In Mink, “the district attorney disclaimed an intent to prosecute immediately after the lawsuit was filed.” Mink, 482 F.3d at 1254-55. The issue in that case centered around whether all possible risk of future enforcement needed to be eliminated to defeat standing when the defendant district attorney's disavowal might not bind other non-defendant district attorneys. Id. at 1255. Here, Defendant Allen has not disavowed enforcement to any extent, for either Plaintiff's past or future conduct; he has only stated that his office has not yet threatened or filed any criminal charges against Plaintiff for violating the Statute. Neither Plaintiff nor Defendant Allen provides any evidence of other district attorneys disavowing enforcement. Thus, the Court finds that Plaintiff has established a credible threat of prosecution as to Defendant Allen under the third 303 Creative factor because Allen has not disavowed future enforcement. The Court therefore concludes that, for purposes of Defendant Allen's Motion [#71], Plaintiff has shown an injury in fact and has Article III standing to challenge the Statute as to his claims against Defendant Allen in his official capacity. Accordingly, the Court recommends that Defendant Allen's Motion [#71] be denied as to the official capacity claims.
IV. Conclusion
For the reasons stated above, IT IS HEREBY RECOMMENDED that the CSP Defendants' Motion [#58] be GRANTED, and the CSP Defendants be DISMISSED WITHOUT PREJUDICE under Fed.R.Civ.P. 12(b)(1) as to the claims asserted against them in both their individual and official capacities.
IT IS FURTHER RECOMMENDED that Defendant Allen be DISMISSED WITHOUT PREJUDICE as to the claims asserted against him in his individual capacity.
IT IS FURTHER RECOMMENDED that Defendant Allen's Motion [#71] be DENIED as to the claims asserted against him in his official capacity, and that these claims remain pending.
IT IS FURTHER ORDERED that pursuant to Fed.R.Civ.P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).