The opinion of the court was delivered by: Judge Walker D. Miller
ORDER ON MOTION FOR SUMMARY JUDGMENT
This matter is before me on the motion for summary judgment filed by defendants Gerald Whitman and the City and County of Denver on January 21, 2005. I have reviewed the parties' written arguments and their summary judgment evidence and find that oral argument is not required. For the reasons that follow, the motion will be granted.
Plaintiff's claims against defendants Gerald Whitman (Whitman) and the City and County of Denver (the City) stem from a family dispute that culminated in the shooting and killing of eighteen-year-old Gregory Lee Smith (Smith). On the evening of January 29, 2002, Regina Keith, Smith's mother, called 911 after a family dispute led Smith to throw a brick through the window of her car. When Denver police officers arrived, they found that Smith was gone, so they obtained a report from Ms. Keith and instructed her to call them if he returned. Just after midnight on January 30, 2002, Ms. Keith again called 911, indicated that Smith had returned, and asked for police assistance.
The first police officer to arrive at the scene was Jim Turney, who was directed by Ms. Keith to the back of the house where Smith's room was located. Ms. Keith opened the back door for Officer Turney and pointed out Smith's bedroom at the bottom of a stairwell. At this point, Smith was in his room with the door open, but he quickly shut the door when Officer Turney tried to speak with him. Shortly thereafter, Officer Silvas arrived and joined Officer Turney at the top of the stairwell. Next, Smith's sister, Joanne, called down to her brother to open the door. From this point the parties' accounts differ significantly. Defendants claim that Smith abruptly opened the door, began climbing the stairs, stopped, bent over and pulled out a three-inch utility knife. The officers shouted at him to drop the knife, but he continued up the stairs toward the officers, and they fatally shot him when he was within three to five feet. In contrast, Plaintiff claims that Smith never went further than putting one foot on the first step, and although he did pull out a knife, he never threatened anybody with it and was never an imminent threat to the officers or his family.
As a result of the shooting, Smith's Estate (the Estate) brought this action asserting various clams against Officers Turney & Silvas, four unknown supervisory officers, Whitman, and the City. The pending motion seeks dismissal of the following claims: (1) failure to train and/or supervise claims against the City, four unknown officers, and Whitman, pursuant to 42 U.S.C. § 1983; (2) Due Process claims against Whitman and the City, pursuant to section 1983 and the Fifth and Fourteenth Amendments; and (3) Americans with Disabilities Act claims against the City, pursuant to 42 U.S.C. § 12132.*fn2
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. A factual issue is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
Where "the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying 'a lack of evidence for the non-movant on an essential element of the non-movant's claim.'" Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998)). Then, "[t]o avoid summary judgment, the non-movant must establish, at a minimum, an inference of the presence of each element essential to the case." Id.
The Estate asserts various theories of municipal liability under section 1983: (1) the City failed to properly train its police officers on how to react when confronted by a citizen with a knife; (2) the City failed to properly supervise and discipline Officer Silvas throughout his career; (3) the City's delay in deploying less deadly weapons demonstrates deliberate indifference to the safety of its citizens; and (4) the City's conduct is so outrageous that it deprived Smith of his due process rights.
In Monell v. New York City Dep't of Social Servs., 98 S.Ct. 2018 (1978), the Supreme Court held that a municipality cannot be held liable under section 1983 for the actions of its employees under the theory of respondeat superior. Seamons v. Snow, 206 F.3d 1021, 1029 (10th Cir. 2000). However, when a municipality's failure to train its police officers demonstrates a deliberate indifference to the rights of citizens, then the city itself may be held to have caused the injury and should be liable. City of Canton v. Harris, 489 U.S. 378, 388, 390 (1989). In order to establish a failure to train case, the plaintiff must show that: (1) police action violated the plaintiff's constitutional rights; (2) the injury arose under circumstances "which constitute a usual and recurring situation with which police officers must deal;" (3) "there is a direct causal link between the alleged constitutional deprivation and the inadequate training;" and (4) the city's failure to train demonstrates deliberate indifference to the constitutional rights of citizens. Zuchel v. City and County of Denver, 997 F.2d 730, 734-35 (10th Cir. 1993).
In this case, for summary judgment purposes, Whitman and the City concede the first two Zuchel elements. I therefore will assume that the shooting constituted excessive force and that Denver police officers regularly must confront knife wielding suspects, and will focus my analysis on the Estate's deliberate indifference and direct causation showings.
Deliberate indifference means more than simple or even heightened negligence. Bd. of the County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 407 (1997). It requires "an act or omission purposefully committed by a person who must have realized that the conduct was unnecessarily dangerous or which conduct was done heedlessly or recklessly, without regard to the consequences, or without regard to the rights and safety of others." Zuchel, 997 F.2d at 735.
In addition to meeting the strict deliberate indifference standard, the plaintiff must also make a strong causation showing. There must be a direct causal link between the municipal action and the specific constitutional deprivation, such that the municipality, through its deliberate conduct, is the moving force behind the injury alleged. Brown, 520 U.S. at 404.
Clearly these burdens are very difficult to meet, but this is intentionally so, lest the law devolve into "de facto respondeat superior liability." City of Canton, 489 U.S. at 392. See also Brown, 520 U.S. at 405 (emphasizing the need for "rigorous standards of culpability and causation . . . to ensure ...