On Certiorari to the Colorado Court of Appeals — Petition to be Filed on May 28, 2026 Amicus Filing Deadline:
Montgomery v. Best Buy Colo. Sup. Ct. No. 2026SC236
Setting the Record Straight

The record at bar.
And the record around it.

The November 25, 2022 incident at the Westminster Best Buy — minute by minute from the body camera, the affidavits, the disputed receipt, and police records — paired with the structural absence of every prior‑Walmart factor and eighteen months of in‑case briefing directly refuting the Court of Appeals' “lawsuit scammer” framing. The cert questions stand independent of any of this; the record is set out here in full so amici can confirm that for themselves.

TL;DR
The Court of Appeals' opinion opens with a two‑page footnote cataloging Mr. Montgomery's prior Walmart‑store litigation. This page is the deep‑dive answer: every fact element of those cases is structurally absent from Best Buy — no back registers, no plastic bags, no printed receipts, and at Westminster, Mr. Montgomery was not even a customer. Across four prior proceedings, three appeals, and two cert petitions, no court has ever found any Walmart claim frivolous. The “lawsuit scammer” framing rests on a 0% conviction rate over a decade of detentions.
Contents

Roadmap

Part I · The Record at Bar
  1. The November 25, 2022
    Incident — Minute By Minute    ›
Part II · The Walmart → Best Buy Distinction
  1. The Numbers In Context (1,000+ Trips,
    ~10 Detentions, 0 Findings Of Frivolity)    ›
  2. The Conviction‑Rate Test
    (10 Detentions, 0 Convictions)    ›
  3. The Diametric Distinctions
    (Walmart vs. Best Buy)    ›
  4. The Walmart Litigation Timeline
    (4 Proceedings, 0 Sanctions)    ›
Part III · The "Lawsuit Scammer" Narrative
  1. The Narrative — Deconstructed (Four
    Conflations The Framing Depends On)    ›
  2. From The Record Itself —
    Plaintiff's Own Words On The Record    ›
  3. Arguments No Court Has Ever
    Addressed (20+ Rational Arguments)    ›
  4. Collateral Damage (BB II, III, IV — An
    Active Attack + The Cookie‑Cutter Pattern    )    ›
Part IV · The Bottom Line
  1. The Cert Issues Stand Independent
    — None Of This Matters For Cert    ›

Part I · The Record at Bar

Twelve minutes. Three employees. A body camera that captured all of it. The granular factual timeline of the November 25, 2022 detention at the Westminster Best Buy — minute by minute, drawn from primary‑source evidence in the record.

The Incident at Bar

The November 25, 2022 incident — minute by minute.

A granular, chronological accounting of the operative incident, drawn from Plaintiff's twelve‑minute body camera footage, his two sworn affidavits, the disputed receipt, the manager's reply‑only affidavit, and Westminster Police Department records showing the call employees claimed to have placed never occurred. The cert questions arise from this timeline; Scott v. Harris applies because the body camera blatantly contradicts the version of events the Court of Appeals adopted.

The One‑Minute Contradiction

A timeline that cannot be reconciled.

Defendant's two pieces of reply‑only evidence contradict each other—and both contradict Plaintiff's own body camera footage. The Court of Appeals never addressed this.

2:19 PM
Body Camera
Plaintiff is standing outside the store, surrounded by three Best Buy employees. The detention has begun.
2:20 PM
Receipt Timestamp
Plaintiff's brother, David—an authorized user of his credit card—rings up a purchase inside the store, one minute after the body camera shows Plaintiff surrounded outside.
Manager's Affidavit
"Immediately Left"
Filed only with its MSJ reply: claims he watched Plaintiff steal JLab headphones and "immediately leave the Best Buy Store." No purchase, no transaction.

If the manager observed Plaintiff steal and "immediately leave," there was no time for a purchase. If Plaintiff made a purchase and "immediately left," the theft observation is impossible. Both cannot be true—yet the Court of Appeals concurrently adopted both.

The full chronology.

Each entry below is a discrete event in the operative twelve‑minute encounter, with citations to the underlying record exhibit. Amici reviewers are encouraged to verify each event against the primary source rather than relying on this site's narration.

The body camera shows Mr. Montgomery standing outside the store at 2:19 p.m., already surrounded by three Best Buy employees. The receipt that Defendant later produced — for the first time in its MSJ reply — bears Mr. Montgomery's name and account, but is timestamped at 2:20 p.m., one minute after the detention had already begun, and reflects a purchase made by his brother, David, an authorized user of his credit card. The Court of Appeals did not address this contradiction. Operative facts of Montgomery v. Best Buy, as set out in Plaintiff's Petition for Writ of Certiorari
Controlling Authority
Scott v. Harris, 550 U.S. 372, 380 (2007)

"When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment."

The procedural questions presented in this petition arise directly from the timeline above. Defendant's reply‑only manager affidavit and reply‑only receipt would not have been considered at all under Suncor's evidentiary‑production rule. The cardholder‑equals‑purchaser inference, when read alongside the body camera, is "merely colorable" under Anderson v. Liberty Lobby. And the Panel's concurrent adoption of both the manager's "immediately left" claim and the receipt's “proof of purchase” claim as simultaneously true is the textbook violation that Scott v. Harris forbids.

Primary sources for this timeline.

Each link below opens the underlying District Court exhibit or appellate brief. The body camera footage is hosted as an unlisted YouTube embed on the Documents page.

The sections that follow turn from the operative incident to the surrounding context: the prior‑Walmart litigation that the Court of Appeals invoked, why every fact element of those cases is structurally absent here, and why the "lawsuit scammer" framing collapses on the record.

Part II · The Walmart → Best Buy Distinction

Every fact element ever litigated against Plaintiff in his prior Walmart cases is structurally absent from this Best Buy case — and the Walmart litigation itself was never adjudicated as frivolous, vexatious, groundless, or in bad faith across four proceedings, three appeals, and two cert petitions.

The Numbers in Context

What a "lawsuit scammer" actually looks like — and what this isn't.

Mr. Montgomery has documented his approach to retail rights publicly and at length. Before any narrative is built around it, the factual baseline matters.

1,000+

Shopping trips at 300+ different merchants over a decade of consistent rights‑auditing behavior. The vast majority of those merchants — including most Walmart stores in the Denver metro — never detained him.

~10

Actual detentions over that decade.
Roughly one in a hundred trips.
If Mr. Montgomery were "fishing" for lawsuits by acting suspiciously, the
success rate would not be one‑in‑a‑hundred — it would be nearly all of them.

4

Consolidated proceedings against Walmart from 2020–2021 — aggregating the detentions chronologically. Three appeals. Two petitions for cert. The trial court rulings issued after the lawsuits were already filed; he did not continue filing after losing.

0

Findings — in any Walmart case, at any level — that the litigation was frivolous, vexatious, groundless, or in bad faith. The current Best Buy court is the first tribunal to deploy the "lawsuit scammer" frame.

—  And the current Best Buy court did so without ever engaging Plaintiff's MFR § II (pages 10–15), which directly contested the framing in writing — or his Response to the Motion for Attorney Fees, § II (“Plaintiff Did Not File a Frivolous Lawsuit in Bad Faith”) — or his Court of Appeals Reply Brief, § III (“The District Court Mischaracterized Plaintiff's Actions as That of Unlawful 'Entrapment'”). The conclusory framing, in other words, was reached without any record engagement with the substantial briefing that contested it.

The Conviction‑Rate Test

Zero convictions across ten detentions. The math doesn't allow a "scammer" theory.

A "lawsuit scammer" theory has a numerical premise built into it: to "induce" a payable detention, a person would have to manufacture conduct that looks enough like real shoplifting to give the detainer at least colorable probable cause. If that were what Mr. Montgomery were actually doing, his detentions would convert to convictions at roughly the rate that any other set of probable‑cause shoplifting detentions does. They do not.

37–68%

Mainstream criminal‑justice statistics place the post‑arrest conviction rate for theft offenses in this band: approximately 37% of theft incidents nationwide; 42% in Pennsylvania (2019‑2023); 57% for repeat offenders in New York (2023); and 68% for BJS felony defendants overall.

0%

Mr. Montgomery's actual conviction rate across approximately ten detentions is zero. Not a single detention — by police acting on probable cause, or by store employees acting under shopkeeper's privilege — ever produced a guilty plea, a deferred judgment, or a conviction.

Apply that baseline to ten detentions and the math is unforgiving. At the most defendant‑friendly end of the range — 37% — the probability that ten genuine probable‑cause shoplifting detentions would happen to produce zero convictions by chance is approximately (0.63)10 ≈ 1.0%. At the BJS felony baseline, the odds collapse to roughly (0.32)10 ≈ one in 100,000. A 0% conviction rate is not a feature of someone manufacturing real‑looking shoplifting for paydays. It is the statistical signature of someone who is being detained without a factual basis — which is the entire civil claim Plaintiff was bringing in this case. Defendant's “lawsuit‑scammer” framing, the YouTube video Defendant attached, and the prior‑litigation footnote the Panel built on top of them, all collapse against a single arithmetic fact in the underlying record: the merchants who detain Mr. Montgomery cannot prove he stole anything, because he didn't.

A note on the “but he consented” counter‑argument.

Where the response to a 0% conviction rate is “well, the people who handed over their receipts consented — so no detention occurred,” the academic literature has the answer ready. The Salzmann Big‑Box Bullies article devotes an entire section to documenting how the “consent” in receipt‑check encounters is structurally not voluntary. Four overlapping pressures convert what looks like consent into something the law does not recognize as such:

Physical pressure

Stores that “herd” customers through a checkpoint line and directly to the waiting employee create a physical pressure to comply. Studies show close proximity yields greater compliance with a demand — people surrender their receipts to escape the personal‑space invasion, not because they have agreed to a search.

Psychological pressure

Obedience theorists have shown that people obey orders given by anyone with apparent authority — teachers, ushers, store employees — not just police. The store employee's location at the exit and the implicit threat of police involvement create the appearance of legal authority where none exists. The article calls this “using authority to force the illegal detention while hiding behind the veil of consent.”

Social pressure

Watching every other customer hand over a receipt to the employee creates “follow‑the‑leader” conformance pressure. Refusing the request invites the social inference that one has something to hide — an inference the responding officer often reinforces with the question, “If you had the receipt the whole time, why not just show it?”

Time pressure

When the receipt demand is made immediately as the customer is leaving, time pressure short‑circuits considered refusal. Decision‑research literature shows that individuals forced to decide instantly do not adequately consider all options — they default to the path of least resistance, which is compliance.

All four pressures applied to Mr. Montgomery on November 25, 2022. He was approached the moment he stepped outside (time pressure); he was surrounded by three Best Buy employees (physical pressure); the manager invoked his apparent authority and falsely claimed police had been called (psychological pressure); and the entire encounter took place in front of other shoppers (social pressure). The body camera shows him refusing each pressure in turn — which is the only legally recognized way to preserve the right to refuse consent. The Court of Appeals nevertheless treated his refusal as a basis for the detention rather than a basis for ending it — the precise inversion the D.C. Circuit foreclosed in United States v. Carter: “The constitutional right to withdraw one's consent to a search would be of little value if the very fact of choosing to exercise that right could serve as any part of the basis for finding the reasonable suspicion that makes consent unnecessary.”

Compare to what an actual abusive litigant looks like.

The Court of Appeals' opinion does not cite Francis v. Wegener, but the framing it deploys evokes that case. Here is what the Colorado Court of Appeals said qualified a litigant for the "abuse of process" treatment:

Twenty‑seven same successive and stale claims … carbon‑copy duplicative filings … stemming from the same incident … barred by collateral attack and claim preclusion … still filed by him after he stubbornly disregarded warnings, reprimands, orders, and sanctions from courts to stop filing them. Francis v. Wegener, 494 P.3d 598, 600 (Colo. App. 2021)

Mr. Montgomery's record contains none of those features. Each Walmart filing concerned a distinct detention at a distinct store on a distinct date; none was a refile of any other; none was filed in defiance of any court warning, reprimand, or sanction; and at the time the cases were filed there was no prior order against him at all. He preserved each new legal argument as it emerged from the prior case — which is precisely what Hamon Contractors and Eurpac recognize as the opposite of frivolous. See the Hamon & Eurpac discussion below.

The Diametric Distinctions

Every fact element in the Walmart cases is absent from this Best Buy case.

The "sting operation" framing relied on by Defendant — and adopted by the Court of Appeals via the YouTube video — depends on factual elements that do not exist at Best Buy in 2022. There are exactly four such elements that have ever been argued in the Walmart cases. Every single one is reversed at Best Buy.

Factual Element
Walmart cases (2020–2021)
Best Buy — this case (2022)
Register Placement
"Back" / self‑checkout registers, distinguishable from front registers
No "back" registers. Registers are dispersed throughout the sales floor; the format does not exist.
Plastic Bag Use
Plastic bags routinely offered; declining a bag was treated as a "factor"
Best Buy phased out plastic bags nationwide in July 2022 — before this incident. There were no bags to decline. [Record Exhibit]
Receipt Format
Printed paper receipts; "refusing to show the receipt" was the central factor
Best Buy moved to digital‑only emailed receipts for account holders in November 2017. There was nothing physical to "refuse to show." [Record Exhibit]
Customer Status
Plaintiff was always a customer; he had purchased and exited the store
Plaintiff was not a customer. He entered the returns department, realized he had brought merchandise meant for a different store, and exited without any purchase. He was detained outside the store as a stranger.

Each of the four factual elements that has ever appeared in any Walmart case is, at Best Buy in November 2022, structurally impossible. The "sting" thesis — that Mr. Montgomery deliberately uses back registers, declines plastic bags, and refuses to show his receipt to provoke detentions — has no factual hook in this record. He could not have used a back register because Best Buy doesn't have them. He could not have refused plastic bags because Best Buy had eliminated them four months earlier. He could not have refused to show a printed receipt because Best Buy hadn't issued printed receipts to account holders in five years. And he wasn't a customer at all.

This is not a "minor factual difference," as the trial court in Mr. Montgomery's parallel Lakewood Best Buy case (2024CV242) characterized it. It is the literal opposite of the only facts that have ever been at issue. The Court of Appeals here did not address any of these distinctions in its opinion. The District Court below didn't either. Both treated the YouTube video as a stand‑in for record evidence of November 25, 2022 conduct — even though the video, on its face, discusses only Mr. Montgomery's Walmart litigation, never mentions Best Buy, and depicts no conduct from the day in question.

No "sting" operation of Plaintiff's could have even occurred that day of November 25, 2022, at that Best Buy store, because no "elements" of his long‑running, Walmart‑based, "sting operation" even existed at that point. Plaintiff's Court of Appeals Opening Brief, 2025CA327, at 39
The Walmart Litigation Timeline

Four consolidated proceedings. Three appeals. Zero findings of bad faith.

Below is the complete chronology of Mr. Montgomery's pre‑Best‑Buy litigation against Walmart. Each entry shows what was argued and — just as importantly — which arguments the courts never reached.

Across four proceedings, three appeals, and two cert petitions, no court has ever entered a finding that any of these claims was frivolous, vexatious, groundless, or in bad faith. No court has ever issued a sanction. No court has ever warned, reprimanded, or restricted Plaintiff's filings. The "lawsuit scammer" characterization that the Best Buy litigation has now produced is unprecedented in his record — and it appears in a case where, as documented above, the Walmart factual elements are literally absent.

Part III · The "Lawsuit Scammer" Narrative

The Narrative — Deconstructed

"He just buys things, leaves, and says 'no.' "

The "scammer" framing depends on a series of conflations — between passive rights‑auditing and active entrapment, between general statements and specific‑occasion conduct, and between a video about Walmart and an incident at Best Buy. Each conflation collapses on inspection.

1.  Passive auditing ≠
active entrapment.

Mr. Montgomery has, for over a decade, exercised the same passive rights on every shopping trip: he uses whatever registers are open, declines plastic bags he doesn't need, and declines to consent to searches when asked. Every customer in America does some subset of these things every day.

Active entrapment would require fabricating conduct that mimics shoplifting — concealing merchandise to provoke a detention. He has never done this. Not once. The trial courts' findings to the contrary are factual errors built on a misreading of his deposition statements about the general practice of rights‑auditing as if they described specific‑occasion conduct.

From the record — Plaintiff dismantled the “targeting / baiting / entrapment” framing at length on appeal, and earlier in the District Court briefing. Appeal Opening Brief, § III; MFR, § II.

2.  The YouTube video can't be evidence of November 25, 2022.

Defendant submitted a YouTube video of Mr. Montgomery discussing his prior Walmart "sting" with its opening MSJ. The video does not mention Best Buy, depicts no conduct from November 25, 2022, and was published on November 16, 2023 — nearly a year after the Westminster incident, in direct response to an attorney's online commentary about the prior Walmart litigation. It cannot, as a matter of basic evidence law, prove what Mr. Montgomery did or said at a Best Buy in Westminster on November 25, 2022.

Generalized statements about a years‑long practice of rights‑auditing across hundreds of merchants are not, and cannot be, evidence of specific‑occasion conduct at one particular store on one particular day. That is foundational evidence‑law principle, and it does not bend simply because the speaker is a pro se plaintiff with an unusual public‑facing approach.

The District Court nevertheless used the video as the primary basis for its "shopkeeper's privilege" finding — a finding made before Defendant ever introduced the manager's affidavit or the receipt (both of which appeared only in reply, the procedural defect that drives this entire petition).

From the record — Plaintiff laid out four numbered grounds for why the YouTube video cannot be evidence of the specific November 25, 2022 conduct. Appeal Opening Brief from pages 38–40; Response to MSJ, § IV.

3.  The "free lawsuits" quote, stripped of context.

The Court of Appeals' opinion characterizes Mr. Montgomery as describing how he obtains "free lawsuits." The actual usage in the underlying content is the reverse:

Plaintiff's exclusive use of the phrase "free lawsuit" has only ever been to indicate how overzealous stores like Walmart and Best Buy routinely, flagrantly violate the law — which essentially allows anybody who knows their rights the opportunity to simply not show their receipt upon leaving in order to secure a legitimate lawsuit in the matter. The lawsuits wouldn't even exist if such "Big‑Box Bully" stores didn't regularly hand them out. Plaintiff's Response in 2024CV132, footnote 8

From the record — Plaintiff first refuted the “targeter / baiter / lawsuit scammer” characterization in his Response to Defendant's MSJ at page 30, calling it “irrational, paranoid, delusional, arrogant, disingenuous, cognitively dissonant, intellectually dishonest, and statistically frauded.”

4.  The numbers don't fit a "scammer" profile.

A genuine entrapment operation would have a high success rate. If Mr. Montgomery were truly fabricating conduct to provoke detentions, he would be detained on most or all of his shopping trips. Over a decade and a thousand‑plus shopping trips, he has been detained roughly ten times.

Roughly one‑in‑a‑hundred is the success rate not of a scammer, but of a litigant whose conduct is statistically indistinguishable from that of every other customer — until a tiny minority of "Big‑Box Bully" stores deviates from their own published policies and detains him anyway.

From the record — Plaintiff made this exact statistical argument 18 months earlier: “True lawsuit scammers would be inundating your Courthouse with dozens, if not hundreds of fake lawsuits by now.” MFR at page 15.

He just buys things, leaves, and says "no." That is not entrapment."Without particularized facts to reasonably justify a stop, systematic detention of most or all customers may implicate false imprisonment."

— Victoria S. Salzmann, Big‑Box Bullies Bust Benign Buyer Behavior, 4 Fla. A&M U. L. Rev. (2009)

From the Record Itself

What Plaintiff actually said when accused of being a "lawsuit scammer."

The "lawsuit scammer" framing did not appear in this case unanswered. From the District Court Cross‑MSJ in 2024, through the MFR and the Attorney Fees Response, and on through the Court of Appeals Opening Brief, Plaintiff dismantled the narrative directly — on the record — in roughly the following order. Each callout below links to the corresponding page of the live consolidated briefing PDF, so amici can verify the quote in context with one click.

1.  Plaintiff's Response to Defendant's MSJ  · September 19, 2024

The first written rebuttal to the "targeter / baiter / scammer" label.

What Plaintiff wrote, on the record, two months into the merits briefing:

...to label Plaintiff as some intentional "targeter" / "baiter" / "lawsuit scammer" / [insert all other synonyms here] for simply a) shopping, b) knowing his rights, and c) protecting himself with recording devices, would be an irrational, paranoid, delusional, arrogant, disingenuous, cognitively dissonant, intellectually dishonest, and statistically frauded position to take... Plaintiff's Response to Defendant's MSJ, page 30

The Response also catalogued the elementary distinction between passive rights‑auditing and active entrapment — "that's just good police work, and whereby, 'merely affording a person an opportunity to commit an offense is not entrapment.'"  Same Response to MSJ, page 31.

2.  Plaintiff's Response to Defendant's Statement of Additional Material Facts

The "are all receipt‑refusers scammers?" rhetorical.

Are each and every one of the "receipt refusers" referenced in those news articles all "lawsuit scammers" executing "sting operations" just so that they can "sue for false arrest?" What an emphatic, laughable, NO. Plaintiff's Reply in Support of Cross‑MSJ, page 11

A few lines earlier on the same page, Plaintiff also noted: "Defendant's ad nauseam attempt to defame Plaintiff as some 'lawsuit scammer' holds no merit, either." The footnote crystallizes the point: this is one giant ad hominem, one not anchored to any record evidence about November 25, 2022.

3.  MFR § II · December 3, 2024 — the centerpiece refutation Open MFR, § II (PDF) →

A six‑page section devoted entirely to the question.

The MFR's Section II is, in many ways, the centerpiece of the entire scammer‑narrative refutation in this case. Its full heading reads:

Section II Heading
THE COURT IMPERMISSIBLY HELD WITH CONCLUSORY STATEMENTS THAT PLAINTIFF IS SIMPLY A "LAWSUIT SCAMMER" UNDESERVING OF DUE PROCESS TO HAVE HIS CASE ADJUDICATED ON ITS MERITS

Plaintiff's Motion for Reconsideration, § II — pages 11–16 of the MFR & Second‑MFR Compendium

Selected passages in the MFR:

Whatever happened to trying a case on its merits? Does this Court REALLY think that "once a lawsuit scammer, always a lawsuit scammer" is ACTUALLY a cognizable legal argument? Because it's not. MFR, page 11
Plaintiff's "sting operation" is by no means some complicated, elaborate "ruse." He simply refuses to answer questions and/or refuses to consent to searches while on his way out of stores after shopping. THAT'S IT! Why can't Defendants and Courts simply address that issue, on its face? Why dance around vaguely chanting "lawsuit scammer, lawsuit scammer"? Oh yeah, that's right, because they'd lose the argument, because merely “refusing to cooperate” isn't actually particularized behavior, because it's really just bootstrapping... MFR, page 12
...So by that alone we KNOW this Court is 100% FULL OF CRAP regarding its purportedly dispositive holdings that "Plaintiff is simply a lawsuit scammer." Seriously. Where's the scam? Where's the sting? MFR, page 15 (closing of subsection)
All it has done is conclusorily establish that "Plaintiff is simply a lawsuit scammer," without even so much as describing how. MFR, page 13 — the "no findings of fact" point
...if, after familiarizing oneself with ALL THAT, one still miraculously considers Plaintiff to be a "lawsuit scammer," all hope is lost for that person, and they should probably not be practicing law in this Country. MFR, page 14
EXCEPT THAT HE HASN'T. BECAUSE HE'S NOT A LAWSUIT SCAMMER. BECAUSE IT'S NOT EASY TO CATCH FALSE IMPRISONERS. BECAUSE THERE AREN'T THAT MANY OUT THERE. BECAUSE MOST MERCHANTS ARE SMART, KNOW THE LAW, AND DON'T DETAIN PEOPLE FOR MERELY REFUSING TO COOPERATE. INDEED, THE LAST TIME PLAINTIFF CAUGHT A MERCHANT VIOLATING HIS RIGHTS BEFORE THE INSTANT CASE AT BAR WAS LITERALLY OVER FOUR YEARS AGO. So just give it up. Your stats aren't adding up. True lawsuit scammers would be INUNDATING your Courthouse with dozens, if not hundreds of fake lawsuits by now, if it is truly as easy as you say it is to "entrap" reasonable acting people. MFR, page 15 — the statistical takedown that anticipates Point #4 above by 18 months
4.  Response to Motion for Attorney Fees · January 21, 2025

A second standalone section on the same theme.

Section II Heading
PLAINTIFF DID NOT FILE A FRIVOLOUS LAWSUIT IN BAD FAITH

(a) Plaintiff simply shops, and nothing more, at many different stores.— Plaintiff's Response to Defendant's Motion for Attorney Fees, page 9

A few pages later, § IV opens with the matching framing for the dismissal itself: "The Court Violated Numerous Rules and Laws, and Should Not Have Dismissed Plaintiff's Lawsuit in the First Place" — including direct citation to Suncor v. Aspen, 178 P.3d 1263, 1269 (Colo. App. 2008) for the rule that "a conclusory statement made without supporting documentation or testimony is insufficient to create an issue of material fact."

5. Appeal Reply Brief, § III · September 8, 2025 Open Reply, § III (PDF) →

The same refutation, preserved for appellate review.

Section III Heading
THE DISTRICT COURT MISCHARACTERIZED PLAINTIFF'S ACTIONS AS THAT OF UNLAWFUL "ENTRAPMENT"

(a) Defendant's baseless arguments of "baiting" and "entrapment"— Appeal Reply Brief, page 25 (b) The District Court's baseless ruling of "baiting" and "entrapment"— Appeal Reply Brief, page 26

Defendant's own characterization of Plaintiff's "modus operandi" thus serves to only highlight the systemic issue of unlawful receipt checking practices that lead to false imprisonment, rather than demonstrating any nefarious intent on Plaintiff's part. Appeal Reply Brief, page 26
...the supposed "elements" of Plaintiff's "modus operandi" (e.g., using "back" registers, not using plastic bags, refusing to show receipts) were drawn from prior cases involving a different merchant (Walmart) with different policies. Appeal Reply Brief, page 28 — the appellate version of the “diametric distinctions” argument above

Earlier in the Opening Brief, at pages 38–40, Plaintiff laid out four numbered grounds for why the YouTube video cannot supply evidence of November 25, 2022 conduct — one of which (Ground Four) is, in his own words, "unquestionably the most grave of the issues": "Plaintiff wasn't even a customer of Best Buy that day... in order to even 'use back registers,' 'forgo the use of plastic bags,' or 'refuse to show a receipt upon leaving.'"

A direct refutation. Five briefs deep. Eighteen months running.

From September 2024 through September 2025, across the District Court MSJ briefing, the MFR, the Response to the Motion for Attorney Fees, and the Merits Appeal briefing, Plaintiff has met the “lawsuit scammer” framing head‑on, by name, in writing, on the record. Not a single one of these passages is engaged in any Opinion in this case. Neither the District Court's MSJ Order, nor its Order Denying MFR, nor its Order Granting Attorney Fees, nor the Court of Appeals' Opinion, picks up any of the points made above and disposes of them on the merits. The framing has been systematically deployed but has never been defended.

That is the procedural posture in which an amicus reviewer encounters the “lawsuit scammer” footnote in the Court of Appeals' Opinion. The full record of how Plaintiff responded to it is now one click away above — or, end‑to‑end, at the Consolidated Briefing Compendium index.

Arguments No Court Has Ever Addressed

Twenty‑plus rational arguments. Zero responses.

Across the entire pre‑Best‑Buy record, the courts repeatedly relied on a single rationale — "the receipt is your escape" — and never engaged the substantial body of preserved arguments that surround it. Below is a non‑exhaustive list. Each was raised at trial, on appeal, or in cert, and each remains undisturbed by anything in any opinion in any case.

On the "escape" theory

  • False imprisonment occurs for "any amount of time, no matter how short" — "The Defendant, directly or indirectly, restricted the Plaintiff's freedom of movement for a period of time, no matter how short." Colo. Civ. Jury Instr. 21:1 (element 2 of false imprisonment).
  • "Unreasonable risk of harm" was intended to apply to physical barriers, not procedural ones — "A person's freedom of movement is actually limited, or he or she believes that it has been limited to a certain area by physical barriers and does not know of any way to escape without causing an unreasonable risk of harm to him or herself or to property." Colo. Civ. Jury Instr. 21:2(1) (emphasis added). The "harm" the instruction speaks of is therefore strictly physical harm flowing from physical barriers — not the mere inconvenience of having to display a receipt.
  • There exists a critical window of time between confinement and release within which a patron is detained even after fully complying. Ball v. Wal‑Mart, 102 F. Supp. 2d 44, 57 (D. Mass. 2000).
  • Showing a receipt yields only conditional release; it is not an autonomous avenue of "escape" — the dictionary defines "escape" as "to get away (as by flight)" or "to issue from confinement" — both naturally hinging on the notion that the person doing the escaping is acting single‑handedly and of their own volition. By contrast, "release" is "to set free from restraint, confinement, or servitude" — a result that requires an independent, conscious decision by the captor. See Jacques v. Childs Dining Hall Co., 244 Mass. 438, 441 (1923) (the false‑imprisonment test is met where "the situation was in the control of the defendant," even if no physical restraint was attempted); Ball v. Wal‑Mart, Inc., 102 F. Supp. 2d 44, 57 (D. Mass. 2000).
  • Showing a receipt after the fact does not retroactively nullify a prior detention — the act of belatedly producing a receipt, even if the merchant accepts it, does not nullify the prior, completed, initial, outright detention from having occurred in the first place. The earlier confinement still requires shopkeeper's privilege to lawfully justify. As Ball v. Wal‑Mart, Inc., 102 F. Supp. 2d 44, 57 (D. Mass. 2000), holds, even after a shopper hands over her receipt, she "[is] not free to leave until [the store employee] conclude[s] his inspection."
  • Showing and refusing to show cannot both constitute "consent" — courts have held that voluntarily showing a receipt already constitutes consent to a detention. Broadnax v. Kroger Texas, No. 05‑04‑01306‑CV (Tex. App. Aug. 24, 2005); Anderson v. Wal‑Mart, 675 So. 2d 1184 (La. Ct. App. 1996).
  • If a person is forced to give up one right for another, they are, by definition, imprisoned — "a person who 'gives up the right of locomotion as the only available alternative to relinquishment of another right [] is restrained, or imprisoned, in the sense that imprisonment is an element of tortious false imprisonment.'" Ball v. Wal‑Mart, Inc., 102 F. Supp. 2d 44, 56 (D. Mass. 2000) (quoting Foley v. Polaroid Corp., 400 Mass. 89, 91, 508 N.E.2d 75, 77 (1987)).
  • An employee who "exercises dominion" over a customer's property thereby detains the customer — "[I]t may be inferred that the employee intended to restrain and control both the property and the person of the plaintiff until the search was completed." Burrow v. K‑Mart Corp., 166 Ga. App. 284, 285 (1983). Confiscating, holding, or refusing to return a customer's belongings (including receipts), regardless of whether they are physically blocked, is itself an act of confinement on the customer.

On shopkeeper's privilege

  • Probable cause cannot be based on "mere conjecture" — "[t]he investigation should be based on more than mere conjecture or suspicion. It must be grounded on some definite information from some person that saw enough to justify [their] belief that a theft had been made, and that a person was guilty of shoplifting." J.C. Penney Co. v. Cox, 246 Miss. 1, 10 (1963); see also Zenik v. O'Brien, 137 Conn. 592 (1951) ("Mere conjecture or suspicion is insufficient to establish probable cause.").
  • Merchants are not allowed to "bootstrap" patron non‑compliance into justification for a detention — "officers lacking legal justification to detain a person may not bootstrap noncompliance into justification for a detention, because in that event a citizen would in effect have no way of declining to participate in a 'consensual' encounter with the police." Brief of the United States as Amicus Curiae Supporting Petitioner at 25, Florida v. Bostick, No. 89‑1717. The Tenth Circuit, ruling favorably in Plaintiff's own Fourth Amendment appeal in Montgomery v. Lore, applied this principle directly to receipt refusal: a person's "refusal to . . . answer does not, without more, furnish" reasonable, objective grounds for a detention. Florida v. Royer, 460 U.S. 491, 498 (1983) (cited in Montgomery v. Lore, 10th Cir. No. 23‑1106); U.S. v. Sterling, 909 F.2d 1078, 1082 (7th Cir. 1990).
  • Refusal to cooperate cannot be the "single additional event" that ripens pre‑existing concerns into founded suspicion. U.S. v. Sterling, 909 F.2d 1078, 1082 (7th Cir. 1990).
  • Not using plastic bags does not establish shopkeeper's privilege — "[t]he absence of any indication that the merchandise is 'unpurchased' justifies the conclusion of the court that there were no reasonable grounds for believing that the defendant‑customer was shoplifting." Henry v. Shopper's World, 200 N.J. Super. 14, 18 (App. Div. 1985) (discussing Coblyn v. Kennedy's Inc., 359 Mass. 319 (1971)).
  • Not using front registers does not establish shopkeeper's privilege — an employee's suspicion arising from a back register it already knows exists is nothing more than a self‑fulfilling prophecy.
  • Being merely "posted up" at the store's exit does not establish shopkeeper's privilege. Wal‑Mart Stores, Inc. v. Odem, 929 S.W.2d 513, 520 (Tex. App. 1996).
  • Lack of intent to conceal negates shopkeeper's privilege — where a plaintiff "made no 'effort to conceal' the merchandise that he had recently purchased, Defendant lacked 'facts justifying a belief (a reasonable belief) on [their] part [] that Plaintiff intended to commit a theft.'" Chelette v. Wal‑Mart Stores, Inc., 535 So. 2d 558, 561 (La. Ct. App. 1989).
  • Merchants cannot detain to "compel payment." Lynch v. Metropolitan El. R. Co., 90 N.Y. 77 (1882).
  • Merchants are no different from private investigators who cannot detain unidentified citizens until they "tell them their name." Plaintiff developed this argument in his Petition for Rehearing in 2023CA159 as a reductio ad absurdum response to the Court of Appeals' rationale that "showing a receipt" is a viable "escape" path. The analogy: "Can a private investigator lawfully detain a bystander until they provide their name to them? Private investigators have an interest in detecting crime, just like merchants. And all a bystander has to do in order to secure their release is to provide their name, just like a customer who shows their receipt. Yet no such legal power has EVER been granted to private investigators to conduct such draconian detentions."

Rational arguments that go unrefuted are not frivolous — even when they don't win.

Colorado law is explicit on this. The Court of Appeals has repeatedly held that a litigant cannot be sanctioned, fee‑shifted, or labeled vexatious for raising rational arguments — even ones that ultimately fail and even ones the court declines to address.

Controlling Authority
Hamon Contractors, Inc. v. Carter & Burgess, Inc., 229 P.3d 282 (Colo. App. 2009)

"Hamon cannot be faulted for attempting to convince the court to reconsider its view of the applicable law."

Controlling Authority
Eurpac Serv., Inc. v. Republic Acceptance Corp., 37 P.3d 447 (Colo. App. 2000)

"Where defendant made rational arguments on the law in support of its position, the trial court noted that the legal issue was one of first impression in Colorado, and defendant was able to cite legal authority from other jurisdictions in support of its position, an award of attorney fees was improper."

Mr. Montgomery's record satisfies both standards. Each new case raised arguments not previously addressed; each cited authority from other jurisdictions on issues of first impression in Colorado; each attempted, in good faith, to reconsider the developing case law. Hamon and Eurpac protect exactly that kind of advocacy. They do not sanction labeling it as "scammer" conduct.

Collateral Damage

The Westminster judgment is already being weaponized.

The petition's Section III flagged the financial‑ruin and access‑to‑justice consequences of the decision below. Three downstream effects have already materialized in collateral cases — two of them resolved against Mr. Montgomery, and a third now actively being prosecuted, in real time, on the strength of the Westminster judgment — demonstrating both why the Supreme Court's review matters and why the Best Buy detention pattern itself is now beginning to look systematic.

The three collateral matters below are the downstream manifestations of the “lawsuit scammer” framing. The original, in‑case refutations — the briefing where the framing was first dismantled — live in the Westminster case itself; they are gathered, with deep links, in the From the Record Itself section above. The four cards below stack chronologically: the first highlights the current Westminster matter as the origin of the framing; the three cards beneath it then document what the Lakewood, Northglenn, and (a year later) second Westminster courts have done — or are now actively being asked to do — with the Westminster judgment downstream.

Best Buy I · Westminster CURRENT CASE

Case No. 2023CV226 — the origin of the framing — and the most extensive in‑case refutation

The Westminster Best Buy detention of November 25, 2022 is the case the Colorado Court of Appeals affirmed and which is now before the Supreme Court on cert. It is also the first tribunal in the entire prior‑litigation history to deploy the “lawsuit scammer” frame — and the case in which Plaintiff has, to date, written by far the most extensive direct refutation of it.

Five separate filings in this case engage the framing head‑on: Plaintiff's Response to Defendant's MSJ (Sep. 2024), Plaintiff's Response to Defendant's Statement of Additional Material Facts, the MFR, § II (Dec. 2024 — six pages devoted entirely to the question), the Response to the Motion for Attorney Fees, § II (Jan. 2025), and the Appeal Reply Brief, § III (Sep. 2025). None of these passages has been engaged on the merits in any Opinion in this case.

MFR, § II (PDF) Appeal Reply Brief, § III Atty Fees Response, § II Response to MSJ at 30
Best Buy II · Lakewood

Case No. 2024CV242 — dismissed because of the Westminster judgment

A separate Best Buy detention at the Lakewood store, on November 24, 2023. Mr. Montgomery was a customer of that store, but the other three diametric distinctions still applied: no back registers, no plastic bags, no printed receipt. The trial court relied on the Westminster judgment as a basis for treating the new complaint as a "strategic misuse of litigation" — even though no court had previously found his prior cases frivolous and even though this case presented genuinely novel facts.

In response, Mr. Montgomery filed a 16‑page Motion to Reconsider that exhaustively walks the court through his entire Walmart litigation history and its diametric distinctions from Best Buy — the most complete contemporaneous statement of the record on the downstream prior‑litigation question, complementing (rather than duplicating) the in‑case refutation in the card above.

2024CV242 Motion to Reconsider (PDF)
Best Buy III · Northglenn

Case No. 2024CV132 — indigent filing status revoked based on the Westminster judgment

A separate Best Buy detention at the Northglenn store, on November 24, 2023, in which Mr. Montgomery additionally sued the responding police officers under state law (a claim for which qualified immunity is unavailable). The trial court revoked his SNAP‑based indigent filing status, citing the prior Westminster judgment and the same "lawsuit scammer" framing — despite the new complaint including claims of first impression against the officers and despite his good‑faith service of the complaint.

The Combined Motion to Reconsider in that case — also linked below — addresses the IFP revocation at length and contains the "He just buys things, leaves, and says 'no'" passage that has since become a touchstone of the record.

2024CV132 Motion to Reconsider (PDF)
Best Buy IV · Westminster (Iron Spear) ACTIVE ATTACK

Case No. 2024CV241 — defense counsel actively wielding the Panel's affirmance to demand dismissal

A separate Best Buy detention at the Westminster store, on November 24, 2023 — almost exactly one year after the November 25, 2022 detention at the same store that produced this cert petition. This time the loss‑prevention encounter was conducted by employees of Iron Spear Protection Group, LLC, with the Westminster police summoned to the scene; Mr. Montgomery sued Iron Spear and Best Buy together for false imprisonment, defamation per se, and false arrest.

On May 12, 2026 — barely two weeks before this cert petition was due to be filed — Iron Spear's counsel filed a Motion to Dismiss that openly weaponizes the Panel's affirmance, asserting that “Plaintiff has repeatedly lost in the trial courts, the Courts of Appeals, and the Colorado Supreme Court has refused to take up any of his claims.” That sentence is precisely the kind of downstream bootstrapping the cert petition warned about: an unpublished procedural affirmance treated, in another case, as if it were a merits ruling on the underlying detention claim.

2024CV241 Iron Spear's Motion to Dismiss (PDF)

A pattern is forming — and it is Best Buy's, not the Plaintiff's.

Four Best Buy detentions, at three different Best Buy stores (Westminster repeated almost exactly one year apart), by the chain's employees and its contracted loss‑prevention security, all sharing certain features: the detentions occur outside the store or at the exit; the employees and guards never identify any specific item allegedly taken; police are claimed to have been called when no such call was made; and after‑the‑fact paperwork is generated to retroactively justify the encounter. None of these detentions involves any of the Walmart factors. The pattern, viewed across all four cases, is the opposite of a "scammer" pattern. It is a pattern of cookie‑cutter retail false imprisonment by a single chain.

And the pattern extends well beyond Best Buy. Aggressive receipt‑checking and door‑stop detentions at major retail chains have been a documented source of false‑imprisonment claims nationwide for over a decade. Walmart's practices in particular have drawn academic scrutiny — most notably Victoria S. Salzmann, Big‑Box Bullies Bust Benign Buyer Behavior: Wal‑Mart, Get Your Hands Off My Receipt!, 4 Fla. A&M U. L. Rev. (2009), which catalogues the structural incentives that drive these encounters. The article's central legal conclusion, published thirteen years before the November 25, 2022 detention at issue here, describes Mr. Montgomery's case with uncomfortable precision:

“Without particularized facts to reasonably justify a stop, systematic detention of most or all customers may implicate false imprisonment. Because receipt‑checking is not related to any fact of theft other than presence in the store, detention for failure to give consent does not create an adequate basis for invoking the privilege.” — Salzmann, Big‑Box Bullies, 4 Fla. A&M U. L. Rev. at 26.

The article's elements track this case directly. The Best Buy employees who detained Mr. Montgomery never identified any specific item allegedly taken; they never articulated a theft observation in any document filed before MSJ reply; and they detained him without articulating any particularized fact suggesting theft. Salzmann's diagnosis — written in 2009 — is that detentions of this kind, even where consent is technically given, cannot rest on the shopkeeper's privilege.

This conclusion has particular force in Colorado. Colorado's shopkeeper's privilege statute — C.R.S. § 18‑4‑407 — is among the more demanding versions of the privilege in the country: it requires not the lower “reasonable suspicion” standard some states permit, but probable cause that goods have been unlawfully taken. The reply‑only manager affidavit and reply‑only receipt cannot satisfy that standard when (a) the body camera shows Plaintiff standing outside the store at the time of the alleged purchase, (b) the receipt timestamp is one minute after the detention had already begun, and (c) the manager's affidavit was not even solicited until 1 year, 10 months, and 13 days after the incident.

The Salzmann article also catalogues the precise authorities that defeat a shopkeeper's‑privilege defense in cases just like this one. Crase v. Highland Village Value Plus Pharmacy, 374 N.E.2d 58 (Ind. App. 1978), holds that the privilege requires probable cause to believe both that a theft occurred and that this specific person committed it — a generalized presence‑in‑the‑store inference is not enough. Mullins v. Friend, 449 S.E.2d 227 (N.C. App. 1994), rejects profile‑based stops as a basis for the privilege. West v. Wal‑Mart Stores, Inc., 539 So.2d 1258 (La. App. 1989), holds that even a brief, apologetic detention to make a shoplifting inquiry is unreasonable false imprisonment when there is no corroborating evidence of theft. Williams v. F.W. Woolworth Co., 242 So.2d 16 (La. 1970), holds that the moment a customer refuses to consent to a search, “legal justification for the detention ended.” And the United States Court of Appeals for the D.C. Circuit, in United States v. Carter, 985 F.2d 1095 (D.C. Cir. 1993), holds the corollary directly: “The constitutional right to withdraw one's consent to a search would be of little value if the very fact of choosing to exercise that right could serve as any part of the basis for finding the reasonable suspicion that makes consent unnecessary.”

The fact pattern is also not novel in any meaningful sense. The Salzmann article opens with the case of Michael Righi, who refused to show his receipt at a Cleveland Circuit City in 2007, was physically blocked at his car door by a manager, was arrested by police who agreed with the store that it had the right to inspect his receipt, and was eventually exonerated of any theft. The article quotes Righi at the time: “I've always taken the stance that retail stores shouldn't treat their loyal customers as criminals and that customers shouldn't so willingly give up their rights along with their money.” What happened to Mr. Righi in 2007 is, structurally, what happened to Mr. Montgomery in 2022. The article's commentary on Righi applies word‑for‑word here: “Police officers are not guilty of false imprisonment if they reasonably rely on a storeowner's assertion that theft may have taken place. But when local law enforcement upholds illegal detentions, it does not cure the underlying illegality.”

And contemporary news coverage has chronicled the same problem continuously across multiple jurisdictions: local reports of unprovoked customer detentions, industry analysis of the legal exposure created by dragnet‑style door checks, and consumer‑rights commentary on the recurrence of these incidents at major chains nationwide. [Record Exhibit: Collected News Articles]

What was once primarily a Walmart problem has now bled into other major retailers in near‑identical form. The four Best Buy detentions of Mr. Montgomery are the local Colorado manifestation of a national retail‑policy issue — one that the academic and trade literature has been documenting for years. The receipt‑at‑the‑door practice that produced this litigation is not a Plaintiff problem; it is a retail‑industry policy problem now spreading from chain to chain.

The cert petition focuses, by design, on the procedural questions in the Westminster case alone. But amici should be aware that the consequences of this Court's denial would not be hypothetical: two collateral cases have already been resolved against Mr. Montgomery on the strength of the Westminster judgment, a third is now actively under attack on the same theory, and the rules the Panel announced will produce identical outcomes for every other plaintiff who finds himself in a similar posture — in any chain, in any store, in any Colorado court.

The Salzmann article closes with a sentence that — sixteen years after publication — reads as an answer to the Court of Appeals' “lawsuit scammer” footnote: “Litigation may not prevent unlawful detentions related to receipt‑checking, but enough consumers complaining just might.” Mr. Montgomery is one of those consumers. The academic literature, fifteen years before this case was filed, identified what he is doing as the only known mechanism for changing the policy. He is not a lawsuit scammer. He is, in the article's own words, the corrective.

Part IV · The Bottom Line

The Cert Issues Stand Independent

None of this matters for cert. And it matters anyway.

The five questions presented in the petition are all pure questions of procedural law — whether reply‑only evidence is forfeited absent a motion to strike; whether a Cross‑MSJ reply may serve as a surrogate surreply; whether procedural burden‑of‑proof challenges may be recharacterized as factual “denials” sufficient to admit reply‑only evidence as “rebuttal”; whether mere topic discussion can "raise" an issue under Suncor; and whether mutually contradictory evidence may be accepted as simultaneously true.

Every one of those questions applies regardless of who Mr. Montgomery is, what his prior litigation looked like, or whether any individual finds his rights‑auditing approach sympathetic. They apply with equal force to every pro se civil plaintiff and every resource‑limited civil defendant in Colorado and nationwide. Amada, Wallman, Morlan, Central Bank, and Suncor all equally protect the corporate antitrust defendant and the unrepresented consumer in complete identical terms.

And yet — the prior‑litigation framing has been deployed against Mr. Montgomery at every stage of this case, and an amicus reviewer encountering the YouTube‑video reasoning in the Court of Appeals' opinion is entitled to the full record of what that video does and does not show. That is what this page is for. The cert petition does not ask this Court to evaluate his prior litigation. It asks this Court to apply C.R.C.P. 56 to a record that was procedurally mis‑handled below — nothing more, and nothing less.

If you are an amicus organization considering whether the prior‑litigation backdrop should affect your participation, the answer is: it shouldn't — but if it does, the materials linked above are the primary‑source record. The cert questions remain the cert questions.

View Amicus Pathways → Read the Petition
Cert-Pool Memo Roadmap