United States District Court, D. Utah, Northern Division
AMENDED ORDER  AND MEMORANDUM
Campbell, United States District Judge.
Plaintiff Jordan Alan Neves Brewer brings this civil rights
lawsuit under 42 U.S.C. § 1983 against Defendants
Special Agent Jeffrey Ross of the F.B.I. and Detective Trevor
Petersen of the Weber County Sheriff's Office. Mr. Brewer
claims that Defendants violated his Fourth Amendment rights
when they arrested him without a warrant, searched him and
his car without probable cause, and then drove him,
handcuffed, to his home. He also claims that Defendants used
excessive force when they placed handcuffs too tightly on his
addition, Mr. Brewer, in his opposition to the
Defendants' motions, asserted a new claim for First
Amendment retaliation. Specifically, he asserts that the
Defendants arrested him and used excessive force in
retaliation for his request for counsel during their
encounter. Although he did not assert the retaliation claim
in his complaint, he has filed a motion for leave to amend
his complaint to add it now.
Defendants have filed motions for summary judgment,
which they assert qualified immunity. They also oppose Mr.
Brewer's motion to amend as futile and procedurally
reasons set forth below, the court grants the motions for
summary judgment because both Defendants are entitled to
qualified immunity, and denies the motion to amend because
adding the retaliation claim would be futile.
Gathered for the Search Warrant
before Special Agent Ross arrested Mr. Brewer, a federal
magistrate judge issued a warrant authorizing a search of Mr.
Brewer's home. Special Agent Ross was the affiant for the
affidavit supporting the warrant. In his affidavit, he
detailed evidence that, in the view of the federal magistrate
judge who issued the warrant, established probable cause to
search Mr. Brewer's home for evidence of various child
pornography crimes. (See Search Warrant & Aff. of Jeffrey
Ross, ECF No. 34-1 (attached as Ex. A to Ross Mot. Summ. J.
(hereinafter “Ross Aff.”)).
Agent Ross recounted an interview he had on August 31, 2011,
with “a concerned citizen (hereinafter referred to as
C.C.).” (Ross Aff. ¶ 21.) C.C. told Special Agent
Ross that he had known Mr. Brewer for many years and had
spent a great deal of time with him. C.C. described Mr.
Brewer as being “very secretive” with his
computer. But C.C. did see images of child pornography on the
computer on August 13, 2011, when Mr. Brewer left his bedroom
without logging off.
also told Special Agent Ross that he had seen a folder called
“pr0n” on Mr. Brewer's computer. Special
Agent Ross knew from previous experience that this term was
slang for pornography. In the folder, C.C. saw videos and
still photos of child pornography. C.C. described one of the
photos in detail. (See Id. ¶ 23.)
affidavit, Special Agent Ross also stated that in February
2007 he knew that agents of the Utah Internet Crimes Against
Children Task Force had found images of child pornography on
Mr. Brewer's computer during a search of Mr. Brewer's
home. Special Agent Ross testified that Mr. Brewer had
confessed to possession of child pornography.
time Special Agent Ross wrote his affidavit, Mr. Brewer was
free on bail and awaiting trial on state charges of Sexual
Exploitation of a Minor.
6, 2011, United States Magistrate Judge Paul Warner signed
the warrant authorizing a search of Mr. Brewer's
addition to the information in his affidavit submitted to the
magistrate judge, Special Agent Ross, as support for his
motion here, filed a declaration giving more details of his
interview with C.C. (See Decl. of Special Agent Jeffrey Ross,
ECF No. 34-2.) Detective Petersen, who was present during
Special Agent Ross' interview of C.C., also filed a
declaration in which he described the interview with C.C.
(See Decl. of Trevor Petersen, ECF No. 44-1.)
Petersen identified C.C. as Almon Jonathan Paul Bates, Mr.
Brewer's former roommate. Both Special Agent Ross and
Detective Petersen testified in their declarations that Mr.
Bates told them Mr. Brewer regularly carried a .9 mm Taurus
handgun and a Millenium .45 caliber handgun concealed under
his trench coat in shoulder holsters. (Ross Decl. ¶ 5;
Petersen Decl. ¶ 9.) Usually the firearms were loaded.
According to Mr. Bates, Mr. Brewer had a “hostile
attitude toward law enforcement” and said numerous
times that if officers entered his residence without legal
authority, he “would ‘draw down' on law
enforcement officers if they ‘drew down' on
him.” (Ross Decl. ¶ 7; Petersen Decl. ¶ 11.)
Search, and Handcuffing of Mr. Brewer
afternoon of September 7, 2011, Special Agent Ross was in
Ogden waiting in his car for Detective Petersen. He saw a man
who matched Mr. Brewer's description getting into a
nearby car. The man was wearing a black trench coat even
though the temperature was at least eighty degrees. Special
Agent Ross walked up to the car and asked the man if he was
Jordan Brewer. Mr. Brewer confirmed his identity. At that
point, Special Agent Ross asked Mr. Brewer to step out of the
car. He searched Mr. Brewer for weapons (found none) and
handcuffed him for officer safety. (See Second Decl. of
Special Agent Ross ¶ 7, ECF No. 84-1; Brewer Supplement
& Mem. in Opp'n to Ross' Mot. Summ. J. at 16, ECF
No. 83.) Then he placed him on the curb near the car's
back bumper. Following that, at least according to Mr.
Brewer, Special Agent Ross searched Mr. Brewer's car for
weapons. No. weapons were recovered at the scene.
the search of Mr. Brewer's car, Detective Petersen drove
Mr. Brewer to his home where they met Special Agent Ross and
other law enforcement officials who joined them to search the
home. Mr. Brewer alleges that he was forced to remain outside
while they searched his home, although his handcuffs were
removed during the search.
end of the search, Special Agent Ross took a photograph of
Mr. Brewer which did not show any marks on Mr. Brewer's
wrists. (See Photo, attached as Ex. 2 to Ross Decl.; see also
Petersen Decl. ¶ 23.) Detective Petersen saw no marks on
Mr. Brewer's wrists. (Petersen Decl. ¶ 24.)
enforcement officers left and Mr. Brewer was not taken back
into custody. But later, based on the evidence found in the
search, a federal grand jury indicted Mr. Brewer on charges
of possession of child pornography and receipt of a firearm
while under indictment. Mr. Brewer pleaded guilty to the
Brewer brings five claims in his complaint, all of which are
based on the Fourth Amendment: (1) unlawful arrest; (2)
unlawful detention and transportation; (3) unlawful search of
Mr. Brewer (only asserted against Special Agent Ross); (4)
unlawful search of Mr. Brewer's car; and (5) excessive
force in handcuffing Mr. Brewer.
for Summary Judgment
judgment should be granted if there is no genuine issue as to
any material fact and the movant is entitled to judgment as a
matter of law.” Koch v. City of Del City, 660
F.3d 1228, 1238 (10th Cir. 2011) (citing Fed.R.Civ.P. 56(a)).
The court must draw all reasonable inferences in a light most
favorable to Mr. Brewer, the non-moving party. Id.
a defendant asserts qualified immunity at summary judgment,
the burden shifts to the plaintiff to show that: (1) the
defendant violated a constitutional right and (2) the
constitutional right was clearly established.”
Id. (quoting Martinez v. Beggs, 563 F.3d
1082, 1088 (10th Cir. 2009)). Only if Mr. Brewer meets that
burden will the court review whether the Defendants have met
the traditional summary judgment burden (i.e., showing that
there are no genuine issues of material fact and that they
are entitled to judgment as a matter of law). Id.
reasons set forth below, the court finds that Mr. Brewer has
not established that the Defendants ...