United States District Court, D. Colorado
FRANCO MARTINEZ, DANA MARTINEZ, and PAUL GOMEZ, JR., Plaintiffs,
THE CITY OF AURORA, OFFICER TIMOTHY HUFFMAN, OFFICER CHRISTOPHER CRUSER, OFFICER BRAD GRAHAM, and SERGEANT RANDAL MOODY, Defendants.
PHILIP A. BRIMMER UNITED STATES DISTRICT JUDGE
This matter comes before the Court on defendants’ Motion for Summary Judgment [Docket No. 54]. This Court has subject matter jurisdiction over plaintiffs’ federal claims pursuant to 28 U.S.C. § 1331 and over plaintiffs’ state law claims pursuant to 28 U.S.C. § 1367. This case arises out of a maneuver used to block a car, referred to as a tactical vehicle contact (“TVC”), conducted by Aurora police officers on a vehicle in which plaintiffs were traveling.
On March 3, 2012, a silver 1995 Infiniti sedan, model J30, bearing Colorado license plate number 522RNX (“the Infiniti”), was observed by Aurora Police Department (“APD”) officers with improper tags. Docket No. 54 at 4, Statement of Undisputed Fact (“SUMF”) 1. The APD officers attempted to stop the Infiniti, at which time the Infiniti fled from the officers at a high rate of speed. Id., SUMF 2. The officers discontinued their attempt to stop the vehicle. Id. Based on the failed attempt to stop the vehicle, the APD officers placed an attempt to locate (“ATL”) notification for the vehicle with the APD. Id., SUMF 3. Two weeks later, on March 17, 2012, plaintiff Franco Martinez, who is not the registered owner, Docket No. 54-11 at 10, contacted the APD and reported the Infiniti stolen. Docket No. 54 at 4-5, SUMF 4. Officer Timothy Huffman took a stolen vehicle report from Mr. Martinez on that day. Id., SUMF 5. After March 17, 2012, Officer Huffman had no further involvement with any investigation related to the Infiniti. Id., SUMF 6. From March 17, 2012 through April 4, 2012, the Infiniti remained listed with the APD as a stolen vehicle. Id., SUMF 7.
On April 4, 2012, Arapahoe County Sheriff’s Deputy Kenneth Martinez was assigned to the East Metro Auto Theft Team (“EMATT”). Id., SUMF 8. The EMATT is a multi-jurisdictional task force staffed by members of several different law enforcement agencies, including the APD. Id., SUMF 9. On April 4, 2012, Deputy Martinez observed the Infiniti at a Shell gas station at 13780 E. 6th Avenue, Aurora, Colorado. Id., SUMF 10. Deputy Martinez ran a routine radio clearance on license plate 522RNX, which showed the vehicle to be stolen. Id. at 6, SUMF 11. As part of the clearance, Deputy Martinez learned of the ATL notice placed on the vehicle. Id., SUMF 12. Deputy Martinez notified members of EMATT to respond to assist in contacting the stolen vehicle. Id., SUMF 13. As EMATT officers, including APD Officers Christopher Cruser and Brad Graham, were responding, the Infiniti left the gas station and traveled several miles. Id., SUMF 14. Deputy Martinez followed, notifying the EMATT officers via radio of the Infiniti’s location on a continuing basis. Id.
As the Infiniti turned eastbound onto 128th Avenue, the other members of the EMATT unit caught up to it. Id., SUMF 15. Defendant Randal Moody, at that time a sergeant with the APD and supervisor of the EMATT, was in radio contact with the EMATT and was monitoring the circumstances of the contact. Id., SUMF 16. Sergeant Moody was aware of the fact that the Infiniti had previously eluded APD officers, was the subject of an ATL notification with the APD, and was listed as stolen. Id., SUMF 17. Based on his training and experience, Sergeant Moody believed that the Infiniti would attempt to flee APD officers as it had done previously, and so directed the application of a TVC maneuver to the EMATT members rather than a traditional traffic stop. Id., SUMF 20. Sergeant Moody advised the EMATT members that, once it was safe to do so, they were authorized to conduct a TVC. Id. at 7, SUMF 18.
The TVC maneuver was executed by Officer Graham driving his vehicle, an unmarked Chevrolet Tahoe, Docket No. 54-6 at 4-5, in front of the Infiniti, and Officer Cruser positioning his unmarked Dodge Durango, Docket No. 54-4 at 8, behind the Infiniti, and then both vehicles moving together and contacting the Infiniti so that it was “pinned” between the front and rear cars and could not escape. Docket No. 54 at 7, SUMF 19. Officers Cruser and Graham were both trained in application of the TVC maneuver and conducted the TVC in accordance with their training. Id., SUMF 21. Officers Cruser and Graham positioned their vehicles behind and in front of the plaintiffs’ vehicle, respectively, and slowed down in tandem in order to stop the plaintiffs’ vehicle and execute the TVC. Id. at 8, SUMF 24. Just prior to contact being made between the Infiniti and the APD vehicles, plaintiff Paul Gomez, the driver of the Infiniti, slammed on the brakes and shifted the car into reverse. Id., SUMF 26. Officer Cruser pulled his vehicle forward into the rear bumper of the Infiniti, as Officer Graham reversed his vehicle into the front bumper of the Infiniti. Id., SUMF 25. As Officer Graham was reversing his vehicle into the front bumper of the Infiniti,  he saw the Infiniti make an abrupt swerve to the right. Id., SUMF 27. Officer Cruser activated his emergency lights as soon as he made contact with the Infiniti. Id., SUMF 28.
Once the Infiniti was pinned, EMATT officers emerged from their vehicles and removed plaintiffs Dana Martinez and Paul Gomez, Jr. from the Infiniti at gunpoint. Id. at 9, SUMF 29. Plaintiff Franco Martinez was not removed from the Infiniti because he is a paraplegic. Id., n. 3. Due to officer safety concerns, it was reasonable for defendants to remove Ms. Martinez and Mr. Gomez from the Infiniti, which was still listed as a stolen vehicle, at gunpoint and place the occupants in handcuffs. Id., SUMF 30. None of the plaintiffs was the registered owner of the Infiniti on April 4, 2012. Id., SUMF 31. However, officers determined at the scene that plaintiffs were in lawful possession of the Infiniti, and they returned it to them at the scene. Id., SUMF 32. Sergeant Moody did not arrive on scene until after the TVC had been conducted and the plaintiffs removed from the Infiniti. Id. at 10, SUMF 33.
Plaintiffs assert federal claims against the City of Aurora, Sergeant Moody, Officer Huffman, Officer Cruser, and Officer Graham pursuant to 42 U.S.C. § 1983. Docket No. 39 at 5, 7, 8, 10, 11. Plaintiffs assert a due process claim under the Colorado Constitution against the City of Aurora and a state law negligence claim against Sergeant Moody and Officers Huffman, Cruser, and Graham. Id. at 9, 12.
Defendants move for summary judgment on all of plaintiffs’ claims. See Docket No. 54. Defendants argue that: (1) none of the defendants are federal government actors, so plaintiffs’ fifth amendment claim must fail, Docket No. 54 at 13; (2) the Fourth Amendment, and not the Fourteenth Amendment, governs plaintiffs’ § 1983 claims, and thus plaintiffs’ Fourteenth Amendment claims must fail, id. at 14; (3) Sergeant Moody and Officer Huffman did not personally participate in the alleged Fourth Amendment violation at issue in this case, and thus the Fourth Amendment claims against them must fail, id.; (4) Sergeant Moody, Officer Cruser, and Officer Graham are entitled to qualified immunity on plaintiffs’ Fourth Amendment claims, id. at 16; (5) no constitutional violation by APD occurred, thus plaintiffs’ claims against the City of Aurora must fail, id. at 22; (6) no cause of action lies under the Colorado Constitution because § 1983 provides an adequate remedy, id. at 24; (7) Officer Huffman and Sergeant Moody are entitled to a dismissal of the negligence claim against them because qualified immunity has not been waived, id. at 25, 27; (8) Officer Cruser’s and Officer Graham’s actions were reasonable, and they are therefore are entitled to a dismissal of plaintiffs’ negligence claims against them, id. at 28.
Plaintiffs agree that the Fourth Amendment controls their claims, and thus their federal constitutional claims outside the reasonableness inquiry of the Fourth Amendment should be dismissed. See Docket No. 57 at 3-4. Plaintiffs also agree with defendants that the City of Aurora is entitled to a dismissal of plaintiffs’ fourth claim for relief against the City of Aurora under the Colorado Constitution, id. at 5, and this claim does not appear in the Final Pretrial Order. Docket No. 68 at 4. Accordingly, the Court will dismiss plaintiffs’ fourth claim for relief.
II. STANDARD OF REVIEW
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is “material” if under the relevant substantive law it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes over material facts can create a genuine issue for trial and preclude summary judgment. Faustin v. City & Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997). 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 nonmovant on an essential element of the nonmovant’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) (internal quotation marks omitted)). “Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter.” Concrete Works of Colo., Inc. v. City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The nonmoving party may not rest solely on the allegations in the pleadings, but instead must designate “specific facts showing that there is a genuine issue for ...