United States District Court, D. Colorado
KATHRYN GUY, as mother, next of kin and executor of the estate of James Guy, deceased, Plaintiff,
NATHAN JORSTAD, Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE
This matter arises from a police shooting the occurred at approximately 8:12 am on April 22, 2011, which Plaintiff alleges resulted in “deprivation under color of law, of Plaintiff’s rights under the 4th and 5th amendments to the United States Constitution and for tortus [sic] behavior under Colorado State Law.” (ECF No. 33, p.1, ¶ 2;pp.4-5). Plaintiff Kathryn Guy is “the mother, next of kin and executor of the estate of James William Guy, deceased.” (ECF No. 33, p.2, ¶ 5).
Defendant, Nathan Jorstad (Defendant) is an officer of the Colorado Springs Police Department (CSPD) and is being sued for his actions “undertaken in the regular course of his employment . . . .”, which resulted in the death of James William Guy (Decedent). (ECF No. 33, p.2, ¶ 6; pp. 4-5). Kathryn Guy (Plaintiff) seeks compensatory damages and attorney fees, costs and funeral and burial expenses. (ECF No. 33, p.8).
Pursuant to Fed.R.Civ.P. 56, Defendant moves for summary judgment and dismissal of Plaintiff’s claims against him. (ECF No. 96). Defendant argues that: (1) Plaintiff has failed to comply with this court’s Civil Practice Standards, Section IV.B.2.b, despite the court’s invitation to do so; (2) there is no genuine dispute as to any material fact and (3) Defendant’s use of force was reasonable as a matter of law and he is therefore entitled to qualified immunity from suit. (ECF Nos. 96; 116).
II. ACTUAL BACKGROUND
A. Undisputed Facts
Plaintiff failed to file a separate statement disputing Defendant’s material facts despite this court’s explicit invitation to do so. (ECF No.115). After careful review of the entire record, the court considers the following to be undisputed facts.
Decedent’s next door neighbor located at 1714 Auburn Drive, called Colorado Springs Police (CSPD), early on the morning of April 22, 2011, to report that the Decedent was firing rounds from a handgun from his back yard at 1718 Auburn Drive. (ECF Nos. 96, p.2; 97, pp.12; 97-4, p.1). This address is located in a densely occupied residential neighborhood. (ECF Nos. 97-3, p.2; 97-6). Officer Jeremy Tidwell was dispatched as a result of that call. (ECF No. 97, pp1-2; ECF Nos. 97-1, p.2; 97-2, p.4; 97-5, p.2).
That same morning CSPD Officers Farrow and Jorstad (Defendant) were working in motorcycle traffic enforcement at a location near the neighborhood from which the incident was reported. (ECF No. 96; ECF Nos.97, p.1; 97-1, p.1; 97-2, pp.2-3; 97-4). They heard the call for cover and responded along with the dispatched officer. (ECF Nos. 97-1, pp.2-4; 97-4, p.1; ECF No. 110, Ex.A, pp.8-9).
While on their way, the officers received further notice from the dispatcher that another party had called in from the neighborhood and reported that seven shots had been fired. (ECF No. 97-4, p.1). The dispatcher also relayed to the responding officers that last year there had been a T.E.U. incident at the 1718 Auburn Drive address. (ECF No. 97-3, pp.2-3).
The officers met at the corner of the street to develop a plan before approaching the address. (ECF Nos. 97-1, pp.3-5; 97-3, p.3; 97-4, pp.1-2; 97-5, p.4). While getting back to their vehicles to approach the suspect house, Officer Tidwell reported to dispatch (at approximately 8:03 am), that he heard two more shots fired. (ECF No.97-4, p.2; 97-5, p.4). At this time the neighborhood had not been evacuated. (ECF Nos. 97, p.5; 97-3, p.3).
The three officers parked their vehicles south of 1714 Auburn Drive and approached 1718 Auburn Drive on foot. (ECF No. 97-1, p.5; 97-2, pp. 6-7; 97-5, pp. 4-5). Officer Farrow requested and received a description of the suspect shooter. (ECF No. 97-4, p.2). As the officers reached the front yard of 1714 Auburn Drive they heard more gunshots coming from the backyard of 1718 Auburn Drive. (ECF No. 97-1, p.5; 97-2, p.8; 97-4, p.3; 97-5, p.8).
The six-foot privacy fence and shed that occupies the space between the 1714 and 1718 Auburn Drive houses obstructed the officers’ view of the 1718 Auburn Drive backyard. (ECF No.97-1, p.6; 97-2, p.9; 97-7; 97-8, p.1). Officer Farrow moved to the 1718 Auburn Drive’s garage where, unable to see anyone through the garage windows, he determined he needed to go around the northeast corner of 1718 Auburn Drive to neighboring 1722 Auburn Drive in order to view the suspected shooter. (ECF No. 97-1, pp.9-10; 97-2, p.11; 97-5, p.6; 97-7).
Upon climbing onto the fender of a boat parked at 1722 Auburn Drive, Officer Farrow was able to view the Decedent stumbling about in an intoxicated manner in the 1718 Auburn Drive backyard. Officer Tidwell stayed at the front of 1714 Auburn Drive behind the tree near the property line to control onlookers while the Defendant entered the reporting party’s home at 1714 Auburn Drive. (ECF No. 97-1, pp.9-12; 97-3, p.4; 97-5, pp.6-7).
After instructing the reporting party to sequester herself and her dogs in an interior room with the door closed, Defendant looked out the kitchen window of 1714 Auburn Drive, and saw the Decedent sitting at a table in his backyard. (ECF No. 97-1, p.12). Defendant observed Decedent put his gun within arm’s reach and then hunch over and appear to re-load the magazine. (ECF Nos. 97-1, ...