Robert Mark Smith v. Town of Kremmling, Et. Al.

Case 1:15-cv-00459 Document 1 Filed 03/04/15 USDC Colorado Page 1 of 25
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
Civil Action No.: 15-cv-00459
ROBERT MARK SMITH,
Plaintiff,
v.
TOWN OF KREMMLING, COLORADO;

ROBERT DILLON, Officer in the Kremmling Police Department;
TODD WILSON, Officer in the Kremmling Police Department;
DANIEL MAYER, Officer in the Grand County Sheriffs Office;
ZACHARY LUCHS, Officer in the Grand County Sheriffs Office;
MIKE REED, Officer in the Grand County Sheriffs Office; and
SCOTT SPADE, Police Chief of Kremmling Police Department, in his individual and official
capacity,
Defendants.
______________________________________________________________________________
COMPLAINT AND JURY DEMAND

______________________________________________________________________________
Plaintiff, Robert Mark Smith, by and through counsel, Darold W. Killmer and Michael P.
Fairhurst of KILLMER, LANE & NEWMAN, LLP, respectfully alleges for his Complaint and Jury
Demand as follows:
I. INTRODUCTION
1. Plaintiff Robert Smith is a highly-decorated, disabled combat veteran who
honorably served the United States as a Marine during the Vietnam War, who sustained serious
combat-related injuries in 1969.
2. Mr. Smith is a resident of Kremmling, Colorado, who has a reputation for vocally
exercising the First Amendment rights he nearly lost his life defending.
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3. On March 5, 2013, Defendants retaliated against Mr. Smith for his prior exercises
of protected speech, unconstitutionally raided his home at night without a warrant, and brutally
beat him. There was no legitimate basis for Defendants willful and wanton violations of Mr.
Smiths clearly established constitutional rights.
4. Plaintiff brings this action for Defendants violations of his First Amendment
right to be free from retaliation for engaging in protected speech, his Fourth Amendment right to
be free from unreasonable searches and seizures, and for the inexcusable failure of Defendants
Scott Spade and the Town of Kremmling, Colorado to appropriately train, supervise, and
discipline their police officers. 1
II. JURISDICTION AND VENUE
5. This action arises under the Constitution and laws of the United States and the
State of Colorado, and is brought pursuant to Title 42 U.S.C. 1983.
6. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. 1331.
7. Jurisdiction supporting Plaintiffs claims for attorney fees and costs is conferred
by 42 U.S.C. 1988.
8. Venue is proper in the District of Colorado pursuant to 28 U.S.C. 1391(b). All
of the events alleged herein occurred within the State of Colorado, and all of the parties were
residents of the State at the time of the events giving rise to this litigation.
III. PARTIES
Plaintiff
9. Plaintiff, Robert Mark Smith, is a citizen of the United States and was at all times
relevant hereto a resident of and domiciled in the State of Colorado.
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Plaintiff reserves the right to amend his Complaint to add a Fifth Claim for Relief under Title II of the Americans
with Disabilities Act, as amended, pending the United States Supreme Courts decision in City and County of San
Francisco v. Sheehan.
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10. Mr. Smith is a 67-year old, disabled veteran who served in the 3rd Battalion, 26th
Regiment of the United States Marines Corps during the Vietnam War.
11. After only 22 months in the Marines, Mr. Smith achieved the rank of Sergeant E-
5.
12. In 1969, Mr. Smith was seriously injured by shrapnel from a minefield explosion
in Vietnam. Mr. Smith has never fully recovered these injuries.
13. After Mr. Smiths active combat tour in Vietnam ended, he returned to the United
States and was chosen to be part of the 2nd Reconnaissance Battalion, which is a special
operations force, at Navy divers school in Key West, Florida. Mr. Smith trained alongside Navy
SEAL personnel in this coveted position.
14. Mr. Smith is highly decorated for his military service. He received the Purple
Heart, Vietnam Presidential Unit Citation, Vietnam Cross of Gallantry, Vietnam Combat Action
Ribbon, and Good Conduct Medal.
15. Mr. Smith was honorably discharged from the military in December 1970.
Defendants
16. Defendant Town of Kremmling, Colorado is responsible for the supervision,
training, official polices, customs, and actual practices of the Kremmling Police Department
(KPD).
17. Defendant Robert Dillon is a citizen of the United States and a resident of and
domiciled in the State of Colorado. At all times relevant to the claims against him, Defendant
Dillon was acting under color of state law as a KPD officer.
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18. Defendant Todd Wilson is a citizen of the United States and a resident of and
Wilson was acting under color of state law as a KPD sergeant.
19. Defendant Daniel Mayer is a citizen of the United States and a resident of and
Mayer was acting under color of state law as a Grand County Sheriffs Office (GCSO)
sergeant.
20. Defendant Zachary Luchs is a citizen of the United States and a resident of and
Luchs was acting under color of state law as a GCSO officer.
21. Defendant Mike Reed is a citizen of the United States and a resident of and
Reed was acting under color of state law as a GCSO officer.
22. Defendant Scott Spade is a citizen of the United States and a resident of and
Spade was acting under color of state law as the Police Chief for KPD. Defendant Spade is the
final policymaker of the KPD and is responsible for the supervision, training, official polices,
customs, and actual practices of agents of the KPD.
IV. FACTUAL ALLEGATIONS
Plaintiff Smith moves to Kremmling, Colorado and decries local corruption
23. Plaintiff Robert Mark Smith moved to Kremmling, Colorado from Texas in late
1996.
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24. Mr. Smith purchased a mobile home park in Kremmling shortly after moving
there.
25. The mobile home park Mr. Smith bought needed to be overhauled in order to
comply with local laws and regulations that were scheduled to become effective about six
months after Mr. Smith purchased the park.
26. Mr. Smith spent considerable time, money, and other resources and made the
necessary modifications to his mobile home park by the time Kremmlings new laws and
regulations became effective.
27. Nevertheless, law enforcement in Kremmling persisted in harassing him and
selectively enforcing rules and regulations against him, and treated him less favorably than other
similarly-situated business owners.
28. As time passed, Mr. Smith grew increasingly confident that local law enforcement
and regulators were subjecting him and his mobile home park to heightened and unwarranted
scrutiny because of his perceived outsider status. In contrast, Mr. Smith believed that local law
enforcement and regulators knowingly permitted other Kremmling mobile home park operators
to commit rule violations with impunity.
29. In the late 1990s, Mr. Smith began vocally expressing his opposition to the
selective enforcement of laws applicable to mobile home parks in and around Kremmling.
30. Mr. Smith repeatedly complained about this unfair double standard to law
enforcement, including the Police Chief, and local political leaders. Mr. Smiths objections and
dissent constituted speech on matters of public concern.
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31. Shortly thereafter, Kremmling law enforcement and regulators began falsely
accusing Mr. Smith of failing to comply with local laws and regulations pertaining to the
operation of his mobile home park.
32. Mr. Smith became known in the Kremmling law enforcement community as a
dissenter by around the year 2000 because of his frequent, vociferous opposition to the
selective enforcement of laws applicable to mobile home parks, and his opposition to the
trumped up accusations lodged against him and his business by law enforcement and certain
community members.
Plaintiff Smiths 2004 stroke
33. Mr. Smith suffered a stroke on April 29, 2005, which (in addition to the disability
he suffered from his combat experience and in addition to a stroke suffered in 1992) left him
100% disabled. Because of this disability, Mr. Smiths strength in his upper body is extremely
limited.
34. Mr. Smiths disabled status is common knowledge among local leaders and law
enforcement, given his high visibility in the community.
35. In addition, all Mr. Smiths vehicles have prominent disabled veteran bumper
stickers on their exteriors.
Plaintiff Smiths March 3, 2015 encounter with Melody Fairfield
36. On or about March 1, 2013, Mr. Smiths friend, Melody Fairfield, arrived at Mr.
Smiths home located at 1055 Park Avenue in Kremmling to stay with him for several days.
37. Ms. Fairfield is an alcoholic and, when intoxicated, tends to become angry, mean,
and violent.
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38. On the evening of March 3, 2013, Ms. Fairfield voluntarily consumed a
significant quantity of alcohol and became intoxicated while inside Mr. Smiths house.
39. Ms. Fairfield grew belligerent and initiated an argument with Mr. Smith.
40. During the argument, Ms. Fairfield pushed Mr. Smiths television off the table
where it was resting and it broke.
41. Because Ms. Fairfield was drunk and violent, Mr. Smith tried to restrain her.
42. Mr. Smith did not did not try to hurt Ms. Fairfield nor did he hurt her. Rather, Mr.
Smith was only trying to keep Ms. Fairfield from being violent and destructive.
43. Shortly after Ms. Fairfield knocked the TV off the table, Mr. Smith insisted that
she leave the house.
44. Ms. Fairfield refused and became even angrier. She did not want to leave because
she was at least two hours away from her home and very intoxicated.
45. Mr. Smith decided to leave his house for a few days to avoid direct contact with
Ms. Fairfield.
46. He returned home on the evening of March 5, 2013.
47. During Mr. Smiths absence from his house, Ms. Fairfield called Donna Snyman
of Longmont, Colorado on her cell phone and described her March 3 argument with Mr. Smith.
48. Donna Snyman called Grand County, Colorado Dispatch to request that someone
go by Mr. Smiths house to check on Ms. Fairfields welfare.
49. Ms. Snyman also gave Grand County Dispatch Ms. Fairfields cell phone number.
50. At no time did Ms. Fairfield call 911 or otherwise request police assistance; nor
did she speak to any personnel associated with law enforcement before the March 5 events
described below.
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51. Grand County Dispatch notified the Kremmling Police Department (including
Defendant Dillon) about Ms. Snymans report regarding Ms. Fairfield.
52. Defendant Dillon had, for some time, harbored a grudge against Mr. Smith
because of his outsider status and his reputation as a dissenter who articulated viewpoints
with which Defendant Dillon disagreed.
53. Defendant Dillon seized upon the request for a welfare check on Ms. Fairfield on
March 3, 2013, two days earlier, as an opportunity to retaliate against Mr. Smith for Mr. Smiths
previous exercises of protected speech.
Defendant Dillon sets the stage for officers illegal nighttime raid of Plaintiff Smiths
home
54. On the evening of March 5, 2013, Defendant Dillon assembled a veritable SWAT
team to storm Mr. Smiths home that night without a warrant, including but not limited to
Defendants Wilson, Mayer, Luchs, and Reed, and Officer Nathan Lyons of the Colorado State
Patrol, pretextually based on Mr. Smiths purported domestic violence towards Ms. Fairfield.
55. Before even setting foot on Mr. Smiths property on March 5, (at least) Defendant
Dillon already had decided to unlawfully enter Mr. Smiths home and to use excessive physical
force against Mr. Smith on that night, using Mr. Smiths supposed violence against Ms.
Fairfield as a pretextual basis to try to justify the illegal scheme.
56. Upon information and belief, (at least) Defendant Dillon knew prior to the raid
that Mr. Smiths and Ms. Fairfields purported altercation occurred two days earlier on March 3.
57. Moreover, the only conceivably valid bases Defendants had for suspecting Mr.
Smith committed a crime, or that Ms. Fairfield needed help, was the uncorroborated report of a
person of unverified reliability in Longmont (Ms. Snyman) and Defendant Dillons
representations of her report.
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58. No one on scene or connected with law enforcement had spoken with any
eyewitnesses to the March 3 incident.
59. No one on scene or connected with law enforcement had ever met Ms. Fairfield,
or observed Mr. Smith threatening or being violent towards Ms. Fairfield.
60. During Defendant Dillons subsequent interactions with law enforcement who he
gathered to accompany him into Mr. Smiths residence, Defendant Dillon grossly misrepresented
Mr. Smiths history and character, falsely portraying him as mentally unstable, heavily armed,
and extremely violent as a result of having suffered a stroke a few years earlier.
61. Defendant Dillon also falsely asserted to his assisting officers that Mr. Smith
would violently resist their commands.
62. In addition, Defendant Dillon intentionally misrepresented the nature of the
relationship between Mr. Smith and Ms. Fairfield, falsely claiming that Mr. Smith had recently
been physically violent towards Ms. Fairfield, when, in fact, the only purported quarrel between
Mr. Smith and Ms. Fairfield about which he was aware occurred on March 3, 2013.
63. While making final preparations for the raid of Mr. Smiths home, Defendant
Dillon contacted Kremmling Police Chief Defendant Scott Spade by phone and, upon
information and belief, described his plan to storm into Mr. Smiths home without a warrant and
arrest him. Defendant Spade expressly authorized Defendant Dillons plan despite its obviously
reckless and unlawful nature, despite the lack of probable cause, a warrant, or any exigent
circumstances, and despite the attendant risk that it would escalate into a dangerous use-of-force
encounter.
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64. Defendant Spades authorization of Defendant Dillons illegal plan was
substantially motivated as a response to Plaintiffs prior exercises of constitutionally-protected
speech.
65. Defendant Dillon also expressly indicated to the law enforcement team he had
assembled that it was his intention to go into Mr. Smiths house without a warrant and place Mr.
Smith under arrest. He described the layout of the house, and said something to the effect of
Were going to go into that house and get that bad motherfucker.
66. Despite their duty to do so under all the circumstances, no officer intervened to
put a stop to Defendant Dillons clearly unlawful scheme. They instead agreed to participate in
it.
67. In an effort to rile up Mr. Smith before going to his door, Defendant Dillon staged
the operation from a carwash located at 11th Street and Park Ave. in Kremmling, which was only
75 to 100 yards away from, and in direct line of sight of, at least one window with the blinds
open at Mr. Smiths residence.
68. Thus, Defendant Dillon did everything in his power to set the stage for a violent
and entirely avoidable clash between law enforcement and Mr. Smith.
69. However, no police officers on scene observed anything through the un-obscured
window(s) into Mr. Smiths home to indicate that any unlawful activity was occurring or safety
threat existed inside the home.
70. Defendant Dillon directed Defendants Reed and Luchs to go to the north end of
Mr. Smiths house with Defendant Wilson.
71. Defendant Wilson directed Defendant Luchs to the alleyway to the north of the
house to recon the back of the residence.
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72. Shortly afterwards, Defendant Luchs was able to see that the curtains on the back
windows were closed and there was no door from which to exit. He relayed this information to
Defendant Dillon.
73. Defendant Dillon and rest of the police officers on scene proceeded to the front
door to make contact with Mr. Smith.
74. Defendant Dillon was positioned at the front door. Defendant Wilson was on the
northeast corner with Defendant Luchs. Defendant Mayer was on the southeast corner while
Defendant Reed covered the rear.
75. After all were in position, Defendant Dillon loudly banged on Mr. Smiths front
door at about 9 p.m. without identifying himself. Nighttime had fallen long ago.
Officers warrantless nighttime raid of Plaintiff Smiths home and excessive use of
force against him
76. Mr. Smith had just gotten out of the shower, heard the banging, and walked to the
front door, wearing only a t-shirt and his underwear.
77. There was a glass window on the upper portion of the door, allowing Defendant
Dillon to see inside.
78. There was also a screen door on the outside of this door.
79. Defendant Dillon saw Mr. Smith approach the door wearing just a t-shirt and
underwear.
80. Defendant Dillon observed nothing to indicate any circumstances existed inside
Mr. Smiths home that would permit him or any other law enforcement officer to enter Mr.
Smiths home without a search warrant or Mr. Smiths voluntary consent.
81. Mr. Smith opened the door and stood behind the screen door. Defendant Dillon
asked, Mark, is Melody here?
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82. Mr. Smith responded, Yes, but she is in bed.
83. Without any additional investigation or explanation, Defendant Dillon
commanded that Mr. Smith permit him and other law enforcement present to enter his home and
immediately speak to Ms. Fairfield.
84. Mr. Smith asked if Defendant Dillon or any other law enforcement on scene had a
search warrant.
85. Defendant Dillon said that they did not.
86. Mr. Smith clearly stated that he did not consent to a search of his home and asked
the officers to leave his property.
87. Because no officers had a valid basis to enter his home or temporarily detain him,
Mr. Smith then grabbed the screen door, pulled it shut, and attempted to latch it.
88. Undeterred, and angered by Mr. Smiths lawful assertion of his rights, Defendant
Dillon wrenched the screen open towards him and out of Mr. Smiths hands before he could get
it latched. This was not difficult, given Mr. Smiths lack of upper body strength.
89. Mr. Smith began backing away from the door, further into the room specifically,
his kitchen.
90. Defendant Dillon went through the doorway into Mr. Smiths home.
91. Defendants Wilson and Luchs immediately followed Defendant Dillon into Mr.
Smiths home.
92. Mr. Smith reiterated that he did not consent to any law enforcement officers being
in his home and again asked them to leave his property.
93. Defendant Dillon and the other officers inside Mr. Smiths home refused to leave.
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94. Upon information and belief, all the individual Defendants knew Mr. Smith was a
disabled veteran before entering his home on March 5. Also, all police officers who had
observed Mr. Smith that night in his home knew he was unarmed, as he was wearing only a t-
shirt and underwear.
95. Defendant Luchs grabbed both Mr. Smiths arms from behind his back.
96. Shortly thereafter, while Mr. Smith was still standing, Defendant Wilson
unnecessarily shot a taser in dart mode at Mr. Smith. The barbs lodged in Mr. Smiths chest and
Defendant Wilson needlessly deployed multiple, excruciating electric shocks into Mr. Smiths
body.
97. Mr. Smith reflexively tried to grab onto to Defendant Dillon to stay upright, as he
felt himself stumbling from the excessive forces applied to him, but his efforts to avoid falling
proved fruitless.
98. Defendant Luchs forcefully kneed Mr. Smiths upper left leg and Mr. Smith
collapsed to the ground in agony.
99. Upon information and belief, Defendants Wilson, Luchs, and Dillon then kicked,
stomped and/or punched Mr. Smiths ribs, head, and back once he had fallen to the ground and
was lying helplessly on his stomach.
100. While Defendants Wilson, Luchs, and Dillon were brutally beating Mr. Smith,
Defendant Mayer entered Mr. Smiths home.
101. Upon information and belief, Defendant Reed also entered Mr. Smiths home
during this time.
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102. Defendants Mayer and Reed and the other Defendant officers failed to intervene
to stop Mr. Smiths gratuitous beating even though Mr. Smith plainly did not present a threat to
anyone.
103. Partway through this beating, at least some of the Defendants involved drew their
firearms and pointed them at Mr. Smith, including a rifle directly at Mr. Smiths head.
104. Multiple Defendants involved in Mr. Smiths beating also put their knees on his
back, applying so much of their bodyweight to his torso that he could barely breathe. Mr. Smith
nearly passed out as a result of the Defendants unnecessary application of overwhelming weight
to him.
105. Eventually, Defendant Wilson handcuffed Mr. Smith while he was still lying
face-down.
106. Defendants Luchs and Mayer pulled Mr. Smith into a seated position.
107. Mr. Smith was, by now, seriously injured as a result of Defendants Wilsons,
Luchss, and Dillons excessive use of force against him, along with Defendants Mayers and
Reeds deliberate failure to put a stop to it.
108. Mr. Smith was, however, notably calm and compliant given the traumatic
violation of his rights he had just experienced.
109. A number of the officers present (besides Defendant Dillon) were struck by just
how different and less aggressive and dangerous Mr. Smiths demeanor at this time was from the
way Defendant Dillon had represented it would be.
Defendant Dillon pressures Ms. Fairfield into making a false statement against
Plaintiff Smith
110. Once Mr. Smith was handcuffed, Defendant Dillon and State Trooper Lyons (who
had, by now, entered Mr. Smiths home) went from room to room in Mr. Smiths home.
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111. They found Ms. Fairfield lying on a bed, in an area to the west of the kitchen area
where Mr. Smith had been.
112. They approached her and asked her if she was okay. She appeared to be confused
and scared.
113. As the officers were talking with her, they could smell a very strong odor of an
alcoholic beverage on her breath.
114. Ms. Fairfield asked the officers where Mr. Smith was located and Defendant
Dillon told her that he was being taken into custody.
115. She became frightened, asking the officers not to arrest Mr. Smith.
116. Defendant Dillon asked her if Mr. Smith had hurt her and she said no, that she had
fallen down the stairs.
117. Around this time, an ambulance was called to pick up Ms. Fairfield.
118. Both before and after an ambulance was summoned, Ms. Fairfield continually
expressed her feelings that Mr. Smith should not be going to jail. She was visibly distraught
over what was happening to Mr. Smith.
119. Apparently unsatisfied by the serious harm he and other Defendants had already
caused to Mr. Smith, Defendant Dillon tried to pressure Ms. Fairfield into making a false
statement against Mr. Smith.
120. This was a transparent attempt to trump up the purported cause for law
enforcements unlawful entry into Mr. Smiths home and the excessive force used against Mr.
Smith in effectuating his unlawful arrest. Defendant Dillon also was substantially motivated by
his desire to retaliate against Mr. Smith for having previously engaged in protected speech and,
furthermore, was seeking to create fabricated bases for Mr. Smith to be criminally prosecuted.
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121. Once lucid, Ms. Fairfield attested in a sworn statement that the events described
above, in the section titled Plaintiff Smiths March 3, 2015 encounter with Melody Fairfield,
regarding her interactions with Mr. Smith on March 3 were true and correct.
122. Among other things, Ms. Fairfield asserted under oath: He did not hit me or
otherwise attack me. He did not try to hurt me; he was only trying to keep me from being
violent.
123. Mr. Smith had to retain a criminal defense attorney to defend himself against
meritless criminal charges stemming from his March 3 interaction with Ms. Fairfield and March
5 interaction with law enforcement.
124. Mr. Smith was never convicted of any criminal offense relating to either the
March 3 or March 5 incidents.
125. As a result of the events described herein, Mr. Smith has and continues to suffer
damages, including but by no means limited to, significant pain in his head, face, back, and rib
cage, type 2 diabetes because of the internal trauma caused by his excessively forceful arrest,
and severe and ongoing psychological and emotional distress.
Defendants Spades and Kremmlings inadequate supervision of their police officers
126. Before March 5, 2013, Mr. Smith had truthfully complained to Kremmling local
leaders, including the town manager, that Defendant Dillon improperly threatened and harassed
him and others.
127. Upon information and belief, the Town of Kremmling, Defendant Spade, and
other KPD employees/agents received meritorious complaints from other citizens as well before
March 5, 2013 that Defendant Dillon presents an improper threat to community members and
their privacy, and has engaged in improper searches, arrests, and applications of physical force
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while acting as a KPD officer and, furthermore, has engaged in recklessly violent behavior while
off-duty.
128. Upon information and belief, the Town of Kremmling, Defendant Spade, and
other KPD employees/agents received additional meritorious complaints of a similar nature since
March 5, 2013.
129. Defendant Dillon physically threatened Mr. Smith without cause (again) in
February 2015.
130. Defendants Town of Kremmling and Spade have nonetheless failed to properly
hire, train, supervise, and/or discipline their law enforcement, including but not limited to
Defendant Dillon, despite being aware of the need for better hiring, training, supervision, and
training, and that the failure to act appropriately would lead to civil rights violations like those
which occurred in this case.
131. This failure to properly hire, train, supervise, and/or discipline was a causative
force in the violations of Plaintiff Smiths constitutional rights as described more fully herein.
V. STATEMENT OF CLAIMS FOR RELIEF
FIRST CLAIM FOR RELIEF

42 U.S.C. 1983 Violations of First and Fourteenth Amendments to United States
Constitution
(Against Defendants Kremmling, Dillon, and Spade)
132. Plaintiff incorporates all other paragraphs of this Complaint for purposes of this
Claim.
133. Plaintiff was engaging in constitutionally-protected activity at all relevant times,
including but not limited to his complaints regarding the selective enforcement of local laws
applicable to mobile home parks.
134. Plaintiffs speech was related to a matter of important public concern.
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135. Defendants Dillons and Spades conduct was substantially motivated as a
response to Plaintiffs exercise of constitutionally-protected conduct.
136. Defendants Dillons and Spades adverse actions in retaliation for Plaintiffs
exercise of his free speech rights caused Plaintiff to suffer injuries.
137. Defendants Dillons and Spades conduct violated clearly established rights
belonging to Plaintiff of which reasonable public officials knew or should have known.
138. Plaintiffs right to speak out on issues of public concern outweighed any of
Defendants interests.
139. Defendants Dillon and Spade engaged in the conduct described by this Complaint
willfully and wantonly and in reckless disregard of Plaintiffs State and federal constitutional
rights.
140. Defendants conduct legally and proximately caused significant injuries, damages,
and losses to Plaintiff.
SECOND CLAIM FOR RELIEF

42 U.S.C. 1983 Fourth Amendment Violation
Unlawful Search
(Against All Defendants)
141. Plaintiff hereby incorporates all other paragraphs of this Complaint as if fully set
forth herein.
142. Defendants were acting under color of state law in their actions and inactions
which occurred at all times relevant to this action.
143. Plaintiff had protected Fourth Amendment interest against unreasonable
governmental intrusion into his home.
144. Defendants, acting in concert with one another, entered and searched Plaintiffs
home unlawfully.
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145. No Defendant had a warrant authorizing any such search of Plaintiffs home.
146. Plaintiff never consented to any search of his home.
147. No legally recognizable circumstances, exigent or otherwise, existed which would
have justified or permitted Defendants conduct.
148. Defendants actions were objectively unreasonable in light of the circumstances
confronting them.
149. Defendants engaged in these actions intentionally, willfully, and wantonly.
150. Defendants Town of Kremmling and Spade failed to properly hire, train,
supervise and/or discipline their employees regarding the proper basis for engaging in a search of
a residence, which contributed to the improper and unwanted search of Plaintiffs home.
151. This inadequate hiring, training, supervision, and or discipline results from a
conscious or deliberate choice to follow a course of action from among various alternatives
available to Defendants Town of Kremmling and Spade.
152. In light of the duties and responsibilities of personnel of Town of Kremmling and
Spade who must make decisions regarding when Fourth Amendment searches are appropriate
the need for scrutiny in hiring and specialized training, supervision and discipline regarding
such decisions is so obvious, and the inadequacy of appropriate hiring, training and/or
supervision is so likely to result in a violation of constitutional rights, such as those described
herein, that Defendants Town of Kremmling and Spade are liable for their failure to properly
hire, train, supervise, and/or discipline their subordinate employees and agents.
153. Defendant Spade personally participated in such failure to properly hire, train and
supervise.
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154. Such failure to properly hire, train and supervise was the moving force behind and
proximate cause of Defendants unreasonable search of Plaintiffs home, and constitutes an
unconstitutional policy, procedure, custom and/or practice.
155. Plaintiff has been and continue to be damaged by Defendants unreasonable
search because such search caused and causes him severe mental and emotional distress,
156. The acts or omissions of each Defendant, including the unconstitutional policy,
procedure, custom and/or practice described herein, were the legal and proximate cause of
Plaintiffs damages.
THIRD CLAIM FOR RELIEF

Unlawful Seizure / False Arrest
forth herein.
158. Defendants were acting under color of state law in their actions and inactions that
occurred at all times relevant to this action.
159. No Defendants at any time had probable cause or reasonable suspicion, or any
other legally valid basis, to believe that Plaintiff committed or was committing any violation of
the law prior to seizing and continuing to restrain his person.
160. No Defendants at any time had a reasonable basis for believing that Plaintiff was
a danger to himself or others.
161. No Defendants at any time had a warrant authorizing any such seizure of
Plaintiffs body.
162. Defendants, acting in concert with one another, forcibly seized Plaintiff while he
was inside his home, despite lacking any legally valid basis for their actions.
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163. During this seizure, Defendants forcibly and intentionally restrained Plaintiff
against his will, despite lacking any legally valid basis for their actions.
164. Each of the Defendants at Mr. Smiths house on March 5, 2013 failed to intervene
to prevent the other Defendants from violating Plaintiffs constitutional rights, and are thereby
liable for such failure to intervene.
165. The Defendants actions were objectively unreasonable in light of the
circumstances confronting them, and violated clearly established law of which reasonable
officials in their positions would have known.
166. Defendants engaged in these actions intentionally, willfully, and wantonly,
demonstrating deliberate indifference to the constitutionally- protected rights of Plaintiff, and
demonstrating a reckless disregard for the federally-protected constitutional rights of Plaintiff.
supervise, and/or discipline their KPD employees regarding the proper use of physical restraint,
resulting in Plaintiffs unlawful seizure.
168. This inadequate hiring, training, supervision, and/or discipline resulted from a
169. In light of the duties and responsibilities of personnel of Defendants Town of
Kremmling and Spade who must make decisions regarding when forcible restraint and use of
physical force is appropriate the need for scrutiny in hiring and specialized training,
supervision and discipline regarding such decisions is so obvious, and the inadequacy of
appropriate hiring, training and/or supervision is so likely to result in a violation of constitutional
rights, such as those described herein, that Town of Kremmling and Spade are liable for their
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failure to properly hire, train, supervise, and/or discipline their subordinate employees and
agents.
supervise.
171. Such failure to properly hire, train, supervise, and/or discipline was the moving
force behind and proximate cause of Defendants wrongful arrest of Plaintiff, and constitutes an
unconstitutional policy, procedure, custom, and/or practice.
172. Plaintiff has been and continue to be damaged by Defendants wrongful arrest of
him.
173. The acts or omissions of each Defendant described herein, including the
unconstitutional policy, procedure, custom and/or practice described herein, were the legal and
proximate cause of Plaintiffs damages.
FOURTH CLAIM FOR RELIEF

Unlawful Seizure / Excessive Force
forth herein.
175. Defendants were acting under color of state law in their actions and inactions
which occurred at all times relevant to this action.
176. Plaintiff had a protected Fourth Amendment interest against unreasonable
governmental seizures of his person, and against excessive force at the hands of law enforcement
personnel.
177. No Defendants at any time had a legally-valid basis to seize Plaintiffs person.
178. Defendants unlawfully seized Plaintiff by means of excessive physical force.
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179. Defendants had no warrant authorizing any seizure of Plaintiffs body.
180. No legally-recognizable circumstances, exigent or otherwise, existed which would
have justified or permitted Defendants conduct.
181. Each of the Defendants at Mr. Smiths house on March 5, 2013 failed to intervene
to prevent the other Defendants from violating Plaintiffs constitutional rights, and are thereby
liable for such failure to intervene.
182. Defendants actions were objectively unreasonable in light of the circumstances
confronting them.
183. Defendants engaged in these actions intentionally, willfully, and wantonly,
demonstrating deliberate indifference to the constitutionally- protected rights of Plaintiff, and
demonstrating a reckless disregard for the federally-protected constitutional rights of Plaintiff.
supervise, and/or discipline their KPD employees regarding the proper use of physical restraint
and force, resulting in Plaintiffs unlawful seizure.
185. This inadequate hiring, training, supervision, and/or discipline resulted from a
186. In light of the duties and responsibilities of personnel of Defendants Town of
Kremmling and Spade who must make decisions regarding when forcible restraint and use of
physical force is appropriate the need for scrutiny in hiring and specialized training,
supervision and discipline regarding such decisions is so obvious, and the inadequacy of
appropriate hiring, training and/or supervision is so likely to result in a violation of constitutional
rights, such as those described herein, that Town of Kremmling and Spade are liable for their
23
failure to properly hire, train, supervise, and/or discipline their subordinate employees and
agents.
supervise.
188. Such failure to properly hire, train, supervise, and/or discipline was the moving
force behind and proximate cause of Defendants unreasonable seizure of Plaintiff, and
constitutes an unconstitutional policy, procedure, custom, and/or practice.
189. Plaintiff has been and continue to be damaged by Defendants unreasonable
seizure of him. He has endured and continues to endure severe mental and emotional distress,
and was significantly physically injured by Defendants unlawful seizure.
190. The acts or omissions of each Defendant described herein, including the
unconstitutional policy, procedure, custom and/or practice described herein, were the legal and
proximate cause of Plaintiffs damages.
WHEREFORE, Plaintiff respectfully requests that this Court enter judgment in their
favor and against Defendants, and award him all relief as allowed by law and equity, including,
but not limited to the following:
a. Declaratory relief and injunctive relief, as appropriate;
b. Actual economic damages as established at trial;
c. Compensatory damages, including, but not limited to those for past and future
pecuniary and non-pecuniary losses, emotional pain, suffering, inconvenience,
mental anguish, loss of enjoyment of life, medical bills, and other non-pecuniary
losses;
24
d. Punitive damages for all claims as allowed by law in an amount to be determined
at trial;
e. Issuance of an Order mandating appropriate equitable relief, including but not
limited to:
i. Issuance of a formal written apology from each Defendant to Plaintiff;
ii. The imposition of policy changes designed to avoid future similar

misconduct by Defendants;
iii. Mandatory training designed to avoid future similar misconduct by

Defendants;
iv. An explicit prohibition against any retaliation against Plaintiff;
v. Imposition of disciplinary action against appropriate employees of the

institutional Defendant;
vi. The appropriate expungement of records;
f. Pre-judgment and post-judgment interest at the highest lawful rate;
g. Attorneys fees and costs; and
h. Such further relief as justice requires.
PLAINTIFF DEMANDS A JURY TRIAL ON ALL ISSUES SO TRIABLE.
DATED this 4th day of March, 2015.
KILLMER, LANE & NEWMAN, LLP
/s/ Darold W. Killmer

___________________________
Darold W. Killmer
Michael P. Fairhurst
1543 Champa St., Ste. 400
Denver, CO 80202
Phone: (303) 571-1000
dkillmer@kln-law.com
mfairhurst@kln-law.com
ATTORNEYS FOR PLAINTIFF
25

Robert Mark Smith v. Town of Kremmling, Et. Al.

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Case 1:15-cv-00459 Document 1 Filed 03/04/15 USDC Colorado Page 1 of 25

IN THE UNITED STATES DISTRICT COURT

Civil Action No.: 15-cv-00459

ROBERT MARK SMITH,

TOWN OF KREMMLING, COLORADO;

COMPLAINT AND JURY DEMAND

1. Plaintiff Robert Smith is a highly-decorated, disabled combat veteran who

combat-related injuries in 1969.

Smiths clearly established constitutional rights.

discipline their police officers. 1

II. JURISDICTION AND VENUE

State of Colorado, and is brought pursuant to Title 42 U.S.C. 1983.

6. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. 1331.

8. Venue is proper in the District of Colorado pursuant to 28 U.S.C. 1391(b). All

relevant hereto a resident of and domiciled in the State of Colorado.

in Vietnam. Mr. Smith has never fully recovered these injuries.

SEAL personnel in this coveted position.

Ribbon, and Good Conduct Medal.

16. Defendant Town of Kremmling, Colorado is responsible for the supervision,

Dillon was acting under color of state law as a KPD officer.

Wilson was acting under color of state law as a KPD sergeant.

Luchs was acting under color of state law as a GCSO officer.

Reed was acting under color of state law as a GCSO officer.

customs, and actual practices of agents of the KPD.

IV. FACTUAL ALLEGATIONS

Plaintiff Smith moves to Kremmling, Colorado and decries local corruption

months after Mr. Smith purchased the park.

regulations became effective.

27. Nevertheless, law enforcement in Kremmling persisted in harassing him and

similarly-situated business owners.

to commit rule violations with impunity.

dissent constituted speech on matters of public concern.

operation of his mobile home park.

Plaintiff Smiths 2004 stroke

enforcement, given his high visibility in the community.

stickers on their exteriors.

Plaintiff Smiths March 3, 2015 encounter with Melody Fairfield

38. On the evening of March 3, 2013, Ms. Fairfield voluntarily consumed a

where it was resting and it broke.

she leave the house.

46. He returned home on the evening of March 5, 2013.

go by Mr. Smiths house to check on Ms. Fairfields welfare.

Defendant Dillon) about Ms. Snymans report regarding Ms. Fairfield.

with which Defendant Dillon disagreed.

previous exercises of protected speech.

Fairfield as a pretextual basis to try to justify the illegal scheme.

person of unverified reliability in Longmont (Ms. Snyman) and Defendant Dillons

representations of her report.

eyewitnesses to the March 3 incident.

or observed Mr. Smith threatening or being violent towards Ms. Fairfield.

would violently resist their commands.

62. In addition, Defendant Dillon intentionally misrepresented the nature of the

64. Defendant Spades authorization of Defendant Dillons illegal plan was

substantially motivated as a response to Plaintiffs prior exercises of constitutionally-protected

open at Mr. Smiths residence.

threat existed inside the home.

Mr. Smiths house with Defendant Wilson.

house to recon the back of the residence.