Brandishing Gun at Home at Intruders, Who Haven't Identified Themselves as Police Officers, Isn't a Crime

From Hanson v. Larimer County Bd. of County Comm'rs, no. 1:20-cv-00317-RBJ, decided Tuesday by Judge R. Brooke Jackson (D. Colo.):

The following facts are derived from the second amended complaint and are assumed to be true solely for the purposes of this order….

On January 8, 2019 [plaintiff Brett Alan] Hanson was in the backyard of his Berthoud, Colorado home … yelling about President Trump's immigration policies. Mr. Hanson's neighbors heard the commotion and filed a noise complaint with police at 5:46 pm. Deputies Baker and Powers arrived at plaintiffs' home at 6:11 pm. When they arrived at plaintiffs' home it was dark outside, the entry gate was closed, and all plaintiffs were inside their home. Most notably, Mr. Hanson was no longer outside making any noise at the time of their arrival.

Notwithstanding this, Deputies Powers and Baker climbed over the four-foot fence and walked almost two hundred feet to plaintiffs' home. The plaintiffs' dogs heard the deputies and began barking. Rather than going to the front door to knock and announce their presence, the deputies instead went to the back of the house. Mr. Hanson heard his dogs barking, looked out of the back window, and thought he saw intruders. Mr. Hanson opened the door and yelled out to the supposed intruders to identify themselves. Neither deputy did so.

Rather than identify himself, deputy Powers—believing that Mr. Hanson held a pistol— drew his service revolver and fired five times at Mr. Hanson, who stood in the doorway. While all five bullets missed Mr. Hanson, they went into the plaintiffs' home where both Ms. Walker and Ms. Felt were present. In response to the gunshots, Mr. Hanson ducked behind a freezer on his porch, and then ran back into his bedroom to hide. As a result of Deputy Powers' firing his gun, numerous deputies and the Larimer County Sheriff's Office arrived on scene. A SWAT team was also called to the property.

Ms. Walker went outside after hearing the disturbance and saw Deputy Baker, who only then identified himself as a deputy sheriff. Deputy Baker informed Ms. Walker that he had been to their home several years before, and he told her to go back inside. Mr. Hanson eventually came out of his bedroom and accused Deputy Baker and Deputy Powers of trespassing. He also asked if they had shot at him. The deputies told Mr. Hanson to come with the deputies, but he declined and told Ms. Walker that he would not accompany the deputies who shot at him. He then went back inside.

A member of the SWAT team told Ms. Walker that Mr. Hanson needed to come out of the house. Ms. Walker responded that Mr. Hanson was scared to come outside because he had just been shot at multiple times. Mr. Hanson eventually came outside and immediately got on his hands and knees on the house's concrete patio. Two deputies then approached Mr. Hanson and shoved him face down onto the concrete patio where they searched and handcuffed him. The officers subsequently arrested Mr. Hanson and took him to the sheriff's office.

While at the sheriff's office, officers interrogated Mr. Hanson. During the interrogation Mr. Hanson requested an attorney and asked whether he was under arrest. He also asked why he was being detained. Corporal Andrew Weber, an officer on scene at the station, stated that he too was trying to determine the answers to those precise questions.

Deputies eventually informed Mr. Hanson that he was not free to leave, and that he was under arrest for felony menacing and second-degree assault on a police officer. Those charges were never filed against Mr. Hanson. However, Mr. Hanson was eventually charged with prohibited use of a weapon and failure to leave the premises or property when ordered by a police officer. However, the district attorney dismissed both charges. Mr. Hanson was also never charged with any noise ordinance violation, the original alleged crime for which police were called to the scene….

Here, plaintiffs contend that defendants violated Mr. Hanson's constitutional right to be free from an unreasonable seizure when they arrested him without probable cause. Defendants contend that they had probable cause to arrest Mr. Hanson for (1) felony menacing, and (2) misdemeanor obstruction of a peace officer….

Defendants contend that the [alleged] facts give rise to probable cause for felony menacing. I disagree. First, defendants ask this Court to accept as true facts that are not in the complaint, i.e., that Mr. Hanson was brandishing a gun at officers. The Court will not do so.

Second, Mr. Hanson was at his home and thought that intruders—who never once identified themselves as police officers—were on his property. Even assuming arguendo that Mr. Hanson had a gun, it is not a crime in the State of Colorado to hold a gun on your property, or to protect your home from intruders. As the Colorado Constitution says, "[t]he right of no person to keep and bear arms in defense of his home, person, and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons." The Court thus finds, construing all inferences in favor of plaintiffs as it is required to do, that defendants did not have probable cause to arrest Mr. Hanson for felony menacing.

Defendants next contend that officers had probable cause to arrest Mr. Hanson for misdemeanor obstruction of a police officer. Again, assuming all of the facts in the complaint are true, I cannot agree. According to the complaint, Mr. Hanson retreated from officers—who he did not know were officers—after being shot at multiple times on his porch. The officers then demanded that he come outside. Mr. Hanson was hesitant to come out because, in response to a noise violation, he had been shot at five times.

He eventually came to the front door and asked Deputies Powers and Baker if they were the ones who shot at him. Mr. Hanson did not immediately follow the officers' orders because he was panicked and scared as a result of just being unexpectedly shot at five times. He went outside a few moments after getting clarity on the (1) the officers' identities, and (2) who had shot at him. Once outside, the officers threw him to the ground and arrested him.

The Court does not find that this gave defendants probable cause to arrest Mr. Hanson for misdemeanor obstruction of a peace officer. A reasonably prudent person or officer would not believe that Mr. Hanson was attempting to obstruct peace officers because he went inside and hid in response to being shot at multiple times on his own front porch by unknown intruders on his property. Additionally, the fact that Mr. Hanson did not immediately succumb to police officer demands does not indicate he had an intent to obstruct—it indicates that he feared for his life because the same officers who now asked him to come with them had just shot at him moments before without identifying or announcing themselves.

The Court thus finds that plaintiffs have plausibly pled a false arrest claim. The existence of probable cause for the two alleged crimes was not a "reasonable conclusion to be drawn from the facts known to an arresting officer at the time of the arrest." Deputies Baker and Powers presumably knew that they did not identify themselves, that they crept around to the back of the house under cover of darkness, and that they then shot at Mr. Hanson five times. They further knew that all of these actions ultimately resulted from a noise complaint. Given the facts, the Court finds that they did not have "reasonably trustworthy information … sufficient to lead a prudent person to believe that [Mr. Hanson] ha[d] committed or [was] committing an offense." …

And the court rejected the deputies' qualified immunity claim:

The Court concludes that, based on plaintiffs' factual allegations, every reasonable officer would understand that the actions of Deputies Powers and Baker violated the Fourth Amendment. At the risk of redundancy, the facts here indicate that the officers responded to a noise complaint by sneaking around the back of plaintiffs' home at night and refusing to identify themselves when Mr. Hanson exited his home. Rather than stating they were police officers and announcing the reason for their presence, Deputy Powers immediately shot in Mr. Hanson's direction five times.

Rather than admitting their actions were unreasonable at that point, they arrested Mr. Hanson. They did not tell him why he was arrested at that time, but later informed him that he was charged with felony menacing and second-degree assault upon a police officer. No such charges were ever filed. The officers' actions here were out of proportion to the alleged conduct they were investigating, and they placed all members of Mr. Hanson's household as well as themselves in substantial danger.

The Court finds that there is no case directly on point to these facts because the officers' actions are so objectively unreasonable that no other officer would have dared to act in such a way. The Court thus finds that neither Deputy Powers nor Deputy Baker are entitled to qualified immunity at this stage of the litigation….