Aurora police officers did not violate a man’s constitutional rights by detaining him for 16 minutes to issue him a no-trespassing order, a federal judge ruled after finding no similar cases had proclaimed such conduct clearly unconstitutional.

William Montgomery sued four police officers for allegedly violating the Fourth Amendment’s prohibition on unreasonable searches and seizures. The officers reportedly held him for 16 minutes while he was on public property and after he had conversed with security guards at the Town Center at Aurora mall about his panhandling. Montgomery argued the officers had no lawful justification to detain him while writing an order banning him from the mall property.

U.S. District Court Chief Judge Philip A. Brimmer dismissed Montgomery’s lawsuit last week by granting the officers qualified immunity. Qualified immunity shields government employees from civil liability unless they violate a clearly-established legal right. Typically, prior court decisions in cases with similar circumstances are necessary for a right to fall in the category of clearly-established.

Brimmer pointed to the Aurora Municipal Code’s provision on trespassing, which empowers police and property owners to provide no-trespassing warnings for those who enter or fail to leave private property.

“It is true that the Aurora ordinance does not state that an officer can detain an individual in order to issue the person a written trespass notice,” Brimmer acknowledged in his March 16 order. However, “the Court’s own review has not located any opinions that would support finding the right to remain free from detention while being issued a trespass notice under an ordinance that permits an officer to issue a written trespass notice is clearly established.”

Montgomery, who represented himself in court, alleged that he was standing on private property and panhandling at the mall on Dec. 7, 2018. Multiple security guards asked to talk with him, and he agreed. The guards informed him mall management reportedly wanted him banned.

“Plaintiff William was quite surprised that he had been banned so hastily, however, considering that he had never been prior ‘first advised’ by the mall to stop / not do what he was doing,” Montgomery wrote.

Aurora police officers soon arrived, and Montgomery allegedly continued to protest his banning without prior notice. He refused to provide his identification, saying he did not want to be charged with trespassing.

“You’re not,” a security guard and Officer Steven Gerdjikian both allegedly responded, indicating Montgomery would merely receive a no-trespassing notice.

Montgomery further claimed that Gerdjikian grabbed him in order to issue a written ban, which Montgomery received 16 minutes later. At some point, he had reportedly left the mall’s property and was on public property.

In June 2021, U.S. Magistrate Judge Michael E. Hegarty recommended granting the officers qualified immunity. Noting that Montgomery never alleged he was under arrest, Hegarty instead weighed whether the officers were justified in carrying out an investigative detention when they prevented Montgomery from leaving.

He concluded that police were acting on a reasonable suspicion that Montgomery was trespassing, and the sole purpose of detaining him was to ascertain Montgomery’s identity and issue a one-year ban from the mall property.

“While reasonable suspicion of a crime (such as criminal trespass) may have been dispelled during the course of the investigative stop,” Hegarty wrote, “a lawful detention may extend until its purpose has concluded.”

Montgomery objected to the magistrate judge’s recommendation, arguing the municipal code does not empower officers to detain or arrest someone solely for the purpose of issuing a no-trespassing notice. The city countered that police can “briefly detain” suspects in order to write a notice when such a stop is grounded in the reasonable suspicion of criminal activity.

“Although the stop was extended by Plaintiff’s refusal to identify himself, it was still relatively quick (16 minutes), and Officer Gerdjikian worked diligently to obtain the necessary information from other sources. Thus, the stop did not violate constitutional standards,” wrote lawyers for the Office of the City Attorney.

Brimmer upheld the magistrate judge’s recommendation, finding no instances where courts had recognized a right to be free from detention while officers issue no-trespass notices under a municipal ordinance.

“The city is pleased with the court’s decision as the officers were acting within the scope of their duties and in accordance with established caselaw in our region and city code,” city spokesperson Ryan Luby told Colorado Politics.

The case is Montgomery v. Gerdjikian et al.