United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
RICHARD P. MATSCH, Senior District Judge.
Plaintiff Paul Bauman claims damages for injuries sustained when Teller County Sheriff's Deputies stormed a van Bauman was sleeping in, forced him out and onto the ground, flex-cuffed him, and made him remain on the ground even though he had vomited and was experiencing discomfort from his pacemaker. Bauman brings this action pursuant to 42 U.S.C. § 1983 and asserts three Fourth Amendment claims against all Defendants in connection with the incident: (1) unlawful entry; (2) excessive force; and (3) false arrest/unlawful seizure. [Doc. 1 at 10-20.]
The Cripple Creek Defendants are the City of Cripple Creek and April Peterson, who was a Sergeant with the Cripple Creek Police Department during the events in question, and is now the Cripple Creek Chief of Police. Bauman claims that she is liable as a supervisor because she set in motion the series of events that led to the constitutional violations, and that she is liable for failing to intervene because she was in close enough proximity to Bauman to see the actions of the Teller County Sheriff's Deputies and did nothing to stop them. Bauman premises the City of Cripple Creek's liability upon its alleged failure to adequately train its police officers, upon Peterson's actions during the incident as the final municipal decision-maker, and upon an unconstitutional practice or custom.
Peterson has moved for summary judgment, claiming qualified immunity. The City of Cripple Creek also seeks summary judgment and claims that municipal liability should not attach because there is no evidence in the record linking Bauman's injuries to a municipal policy or practice.
A. Undisputed Facts
On October 19, 2010, the City of Cripple Creek Police Department was notified of a large firearm theft at a home within the City; 62 long guns (two of them.50 caliber and one having a computerized sighting system), 24 handguns, and over 10, 000 rounds of ammunition were reported missing. At the time, the then-Chief of Police for Cripple Creek was on vacation. Sergeant April Peterson responded to the call. Peterson contacted the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") to assist the investigation.
The next day, Peterson was at the house where the firearms and ammunition had been stolen when Thomas Graham approached her. Peterson knew Thomas Graham was a convicted felon with domestic violence charges, drug charges, weapons offenses/violations, and charges of making false reports to law enforcement; and that he had a reputation for intoxication with a history of fighting law enforcement and possessing weapons. Peterson also knew that Graham had occasionally provided useful information to police.
During their conversation at the house, Graham told Peterson that he had been contacted to buy guns that he believed were related to the theft. Graham would not identify who contacted him, but told Peterson he could "make this happen." Then, ATF Agents Greg Cooper and Peter Merenyi arrived. Graham became skittish and immediately left.
Graham called Peterson shortly thereafter and told her that he was going to set a "drop" meeting with the people who contacted him. Graham told Peterson that the meeting would happen at 9:00 p.m. at his RV. Peterson said that the location was too dangerous and that the meeting should not occur in the City of Cripple Creek. Graham said he would change the location. Peterson thought Graham sounded agitated and excited during the conversation.
Peterson then contacted the Teller County Sheriff's Office to inform them of her conversations with Graham and to ask for assistance. Peterson advised the Sheriff's Office that Graham had changed the plan regarding the "drop" several times, and that she and the ATF Agents had started to wonder if Graham himself had the guns. Peterson also said that Teller County's tactical team may be needed because there was not enough manpower to cover the scene of the "drop" meeting, which potentially involved a dozen people and a large quantity of firearms and ammunition. Teller County Undersheriff Stanley Bishop told Peterson that the Teller County Emergency Response Team ("ER Team") was on its way and would assemble at the Cripple Creek Police Department.
Around 5:00 p.m., Graham called Peterson and told her there was "a problem" and that he needed to speak with her at a nearby casino. Peterson went to the casino but Graham did not appear. Meanwhile, the ATF Agents and Cripple Creek Police Officers Parks and Bausman were conducting surveillance on the dirt lot where Graham's RV was parked. A silver van was also parked in the lot. Around the time Graham was supposed to be meeting Peterson at the casino, the observing officers saw Graham arrive at the lot, go to the silver van, open the door, and go inside. The officers believed Graham was highly intoxicated, based on his movements. A few minutes later, Graham's girlfriend left the RV and sat in the van; she was looking around the lot, leading the officers to suspect she was acting as a look-out. It is unclear how long Graham and his girlfriend were in the van. They exited the van along with another male (later identified as Bauman), who walked with them to the RV, and then returned to the van and appeared to go to sleep. Officer Bausman communicated this information to Peterson by telephone; Peterson then relayed it to Teller County Sheriff Mike Ensminger and Undersheriff Bishop. Peterson also told Ensminger and Bishop that there was a possibility that weapons could be in the van.
Around dusk, Peterson, Sheriff Ensminger, Undersheriff Bishop, and members of the Teller County ER Team arrived in the vicinity of the dirt lot where Graham's RV and the silver van were parked. Peterson, Ensminger, Bishop, Deputy Sheriff Joshua Weatherill (the senior member of the Teller County ER Team), and the ATF Agents conferred about their plan of action. At about 6:30 p.m., it was decided (who decided is in dispute) that Peterson, Bishop, ATF Agent Merenyi and another Cripple Creek officer would go to the RV and talk to Graham to determine why he did not show up to meet Peterson at the casino; check on his physical safety; and see if he had any other information regarding the firearm theft. It was further decided (again, it is disputed who decided) that the Teller County ER Team members would "cover" (the meaning of which is disputed) the silver van while the conversation with Graham took place. Deputy Weatherill instructed the other ER Team members regarding their assignment. Peterson did not directly provide orders or instructions to Deputy Weatherill or the Teller County ER Team.
As Peterson and others approached the RV, Deputy Michael Romero saw Graham's girlfriend at the window and asked to see her hands. She did not comply. Several Teller County deputies entered the RV, engaged in a short altercation with Graham, and eventually handcuffed and removed him from the RV.
At the same time, Deputies Weatherill and Nick Hartbauer and two other Teller County ER Team members approached the silver van. Weatherill and Hartbauer gave oral commands to the individual later identified as the Bauman to show his hands. Bauman did so. Weatherill then commanded Bauman to exit the vehicle. Bauman did not comply. Weatherill and Hartbauer entered the van, grasped Bauman by his wrists, and forced him out of the back of the van and onto the ground. Teller County Tactical Medic Jesse Baker approached the scene and, according to Weatherill's instruction, placed Bauman in flex-cuffs. The deputies patted Bauman down for weapons. Bauman told them that he had a pacemaker implant ...