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Davies v. City of Lakewood

United States District Court, D. Colorado

February 16, 2016

TAMARA DAVIES, as personal representative of the Estate of James Davies, Plaintiff,
THE CITY OF LAKEWOOD, COLORADO, and its Police Department; AGENT DELVANEY D.J. BRALEY, in his official and individual capacities; POLICE CHIEF KEVIN PALETTA, in his official and individual capacities; SERGEANT MICHELLE CURRENT, in her official and individual capacities; JOHN AND JANE DOES 1-5, current and former employees of the Lakewood Police Department, in their official and individual capacities, Defendants.



This matter is before the Court on defendants’ Motions for Summary Judgment [ECF Nos. 114, 115, 116, and 119] and plaintiff’s Motions for Partial Summary Judgment [ECF Nos. 122 and 123]. The motions have been fully briefed by the parties and are ripe for review.


This case arises from a tragic incident that occurred on November 9, 2012. ECF No. 43 at ¶ 1. Around 2:00 a.m., the Lakewood Police Department (LPD) responded to reports of gunshots near 20th Avenue and Eaton Street in Lakewood, Colorado. Id. at ¶ 26. The officers eventually pinpointed the location of the shooter, Joe Ruiz, at 1940 Eaton Street. Id. at ¶ 37. Defendant Sergeant Thomas Grady, a SWAT negotiator, called into the house and spoke with Rebecca Ruiz, who informed him that there were three people inside. Id. at ¶ 47. At the LPD’s request, the three occupants exited through the front door without any weapons and were taken into police custody. Id. at ¶¶ 48, 51; ECF No. 119 at 3. The parties dispute whether the officers on scene believed there to be an outstanding armed suspect on the premises.

Defendant Sergeant Michelle Current, the Incident Commander, instructed her officers to “clear the house.” ECF No. 43 at ¶ 52. Meanwhile, Agent James Davies set up a perimeter on the backside of the house. Id. at ¶¶ 65-68. Agent Davies stood on an overturned ladder to peer over the wooden privacy fence in order to see into the backyard. Id. at ¶ 1. Sergeant Current instructed Agent Davies to maintain his position. Id. at ¶ 67.

While the officers were clearing the house they discovered three aggressive pit bulls inside the bedrooms. Id. at ¶ 55. Because the pit bulls sounded “extremely angry, ” they decided to clear the rest of the house from the exterior by breaking the windows and scanning each room with a mirror. Id. at ¶¶ 101, 207. Sergeant Current radioed a request for the necessary equipment, and Defendant Agent Devaney Braley offered to bring the equipment from the LPD station. Id. at ¶ 69.

Once Agent Braley arrived on scene, he joined Sergeant Grady and Agent Okamura inside the house. As the three officers prepared to go outside to break the windows, Sergeant Grady informed Agents Braley and Okamura that the backyard had not yet been cleared. Id. at ¶ 201. Now focused on clearing the backyard, the officers exited the north door of the house. Id. at ¶ 210; ECF No. 119 at 4-5.

Agent Braley stepped into the carport attached to the north side of the residence and moved several steps to his left to allow Sergeant Grady and Agent Okamura to follow. ECF No. 43 at ¶ 210-211. He maneuvered around a parked vehicle in order to observe and clear the north side of the residence. Id. at ¶ 212. As he scanned from left to right, he spotted a man peering over the privacy fence holding a black semi-automatic pistol and heard him say “hey” in a conversational tone. Id. at ¶ 215-16. Unbeknownst to Agent Braley, it was Agent Davies. Believing him to be an armed suspect, Agent Braley yelled “Drop the gun. Drop the gun.” Id. at ¶ 221. Seconds later, Agent Braley fired six shots at Agent Davies. Id. at ¶ 222; ECF No. 119 at 6. One of Agent Braley’s six shots struck and killed Agent Davies. ECF No. 43 at ¶ 224.

This suit is brought on behalf of Agent Davies’ estate by its personal representative, Tamara Davies. ECF No. 43. She asserts constitutional claims against Agent Braley, Sergeant Current, Sergeant Grady, and the City of Lakewood (the City). Id. Agent Braley, Sergeant Current, and Sergeant Grady move for summary judgment asserting qualified immunity. ECF Nos. 114, 116, 119. The City moves for summary judgment, arguing that for each claim against it, plaintiff cannot put forth evidence proving one or more elements of the claim for which plaintiff bears the burden. ECF No. 115. Finally, plaintiff moves for partial summary judgment regarding the defendants’ workers’ compensation and comparative fault defenses and the City’s deadly force policy. ECF Nos. 122, 123.


The Court may grant summary judgment if “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). A fact is material “if under the substantive law it is essential to the proper disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (internal quotations and citations omitted). A material fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party has the burden to show that there is an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The nonmoving party must “designate ‘specific facts showing that there is a genuine issue for trial.’” Id. at 324.


The qualified immunity doctrine “shields government officials performing discretionary functions from liability for damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Toevs v. Reid, 685 F.3d 903, 909 (10th Cir. 2012) (internal quotations and citations omitted). When the defendant asserts a qualified immunity defense, the summary judgment standard is subject to a “somewhat different analysis from other summary judgment rulings.” Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir. 2006).

By asserting the defense of qualified immunity, a defendant “trigger[s] a well-settled twofold burden” that the plaintiff is “compelled to shoulder.” Cox v. Glanz, 800 F.3d 1231, 1245 (10th Cir. 2015). The burden shifts to the plaintiff to show (1) “that the defendant’s actions violated a specific statutory or constitutional right, ” and (2) that the right was “clearly established at the time of the conduct at issue.” Steffey, 461 F.3d at 1221. Courts have discretion to address either prong of this standard first. Cox, 800 F.3d at 1246. “In determining whether a plaintiff has carried its two-part burden . . . ordinarily courts must ‘adopt’ plaintiff's ‘version of the facts.’” Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1325 (10th Cir. 2009) (Holmes, J., concurring). However, “plaintiff's version of the facts must find support in the record[.]” Id.

“It is only after plaintiff crosses the legal hurdle comprised of his or her two-part burden of demonstrating the violation of a constitutional right that was clearly established, that courts should be concerned with the true factual landscape[.]” Id. (emphasis in original). Considering the true factual landscape, “courts should determine whether defendant can carry the traditional summary judgment burden of establishing that there are no genuine issues of material fact for jury resolution and that defendant is entitled to judgment as a matter of law.” Id. at 1326.


A. Agent Braley

Agent Braley argues that he is entitled to summary judgment on qualified immunity grounds. ECF No. 114. He is entitled to qualified immunity unless his use of deadly force violated clearly established Fourth Amendment law. Thomson, 584 F.3d at 1313.

1. Constitutional Violation

The Court must first determine whether plaintiff’s version of the facts demonstrates that Agent Braley violated Agent Davies’ constitutional right. I find that it does.

Plaintiff claims that Agent Braley’s use of deadly force constituted excessive force in violation of Agent Davies’ Fourth Amendment right to be secure in his person against unreasonable seizures.[1] U.S. Const. amend. IV; ECF No. 43 at ¶ 286. The Supreme Court has held that “all claims that law enforcement officers have used excessive force-deadly or not-in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis in original). When evaluating excessive force claims, “the question is whether the officers' actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397. Courts assess “objective reasonableness” based on “whether the totality of the circumstances justified the use of force, ” and must “pay careful attention to the facts and circumstances of the particular case.” Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008) (quoting Sevier v. City of Lawrence, 60 F.3d 695, 699 (10th Cir. 1995)) (internal quotation marks omitted). The “reasonableness” of the use of force “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. Further, “the reasonableness of an officer’s actions must be assessed in light of the officer’s training.”[2] Weigel v. Broad, 544 F.3d 1143, 1155 (10th Cir. 2008).

Deadly force is justified under the Fourth Amendment “if a reasonable officer in Defendants' position would have had probable cause to believe that there was a threat of serious physical harm to themselves or to others.” Sevier, 60 F.3d at 699 (citing Graham, 490 U.S. at 396 and Tennessee v. Garner, 471 U.S. 1, 11 (1985)). In discerning whether probable cause exists courts consider a non-exclusive list of factors: “(1) whether the officers ordered the suspect to drop his weapon, and the suspect's compliance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions of the suspect.” Estate of Larsen, 511 F.3d at 1260.

In friendly-fire cases, the Fourth Amendment inquiry is whether the defendant’s mistaken belief that his fellow officer was a suspect was objectively reasonable under the circumstances. Young v. City of Providence ex rel. Napolitano, 404 F.3d 4, 23 (1st Cir. 2005) (“We think that a jury could find that an objectively reasonable officer would have recognized [plaintiff] as an officer, and thus would have recognized that he was not a threat and would not have shot him.”); Duy Ngo v. Storlie, No. 03-3376 (RHK/JJG), 2006 WL 1579873, at *7 (D. Minn. June 2, 2006) aff'd sub nom, Ngo v. Storlie, 495 F.3d 597 (8th Cir. 2007) (“Genuine issues of material fact exist concerning whether [defendant’s] failure to recognize [plaintiff] as someone other than the targeted suspect was reasonable[.]”); Wilkins v. City of Oakland, 350 F.3d 949, 955 (9th Cir. 2003) (“The crucial question, therefore, is whether their mistaken belief that Wilkins was a civilian was reasonable under the circumstances.”).

In the present case, plaintiff claims that Agent Braley’s use of deadly force was objectively unreasonable, and, alternatively, if there was a need for deadly force, Agent Braley’s reckless conduct created that need. ECF No. 144 at 20-36. Accepting plaintiff’s version of the facts, insofar as it is supported by the record, the Court finds that plaintiff has presented sufficient evidence to demonstrate that the degree of force used against Agent Davies was objectively unreasonable. As such, the Court need not discuss whether plaintiff’s evidence demonstrates that Agent Braley’s reckless conduct created the need for deadly force.

According to plaintiff, a reasonable officer would have been aware of Agent Davies’ location on the perimeter due to Agent Davies’ radio communications.[3] ECF No. 144 at 23. Around 3:08 a.m., Agent Braley radioed Sergeant Current as he was driving to the residence with the mirror and catch poles. ECF No. 144-6 at 13. He stated, “Hey sarge, what’s the best way for me to come in with this equipment[?]” Id. Sergeant Current responded with directions. Id. Immediately thereafter, Sergeant Current asked Agent Davies, “[A]re you actually in the backyard, or are you on the outside of the fence?” Id. at 14. Agent Davies responded, “I’m on the outside of the fence ah kinda peeking over it’s not a great spot but it’s the best I got for the backyard.” Id. Agent Davies’ voice was recognizable over the radio due to his British accent. ECF No. 144-26 at 227:14-25. Sergeant Current then asked Agent Davies, “so the backyard’s secure, I mean will we be able to throw the dogs back there[?]” ECF No. 144-6 at 14. Agent Davies answered, “as far as I can see it does appear to be secure.” Id. Twenty seconds after that exchange, Agent Albrets, using Davies’ last name, advised Davies over the radio that he was opening up the north door to the house, and Davies confirmed. Id.

Further, plaintiff claims that even if a reasonable officer would not have known that Agent Davies was on the perimeter, in light of his training, a reasonable officer would have expected to see at least one officer in Agent Davies’ perimeter position. ECF No. 144 at 25. Agent Braley had received training on setting up a perimeter so that two officers take positions on opposite corners of a scene to minimize crossfire and maintain cover of all four sides. ECF No. 144-26 at 70:23-71:13; ECF No. 144-22 at 93:1-10. Upon arriving at the scene, Agent Braley stopped and talked to four police officers near the southwest side of the house. ECF No. 144-8 at 2-3. Plaintiff argues that a reasonable officer with Agent Braley’s training would have concluded that the other perimeter officers were located on the northeast corner of the scene. ECF No. 144 at 25.

The perimeter officers advised Agent Braley that the equipment was needed inside. ECF No. 144-8 at 2-3. He took the equipment inside through the open front door and met up with the rest of the entry team-Sergeant Grady and Agent Okamura. Id. Of the three officers, Agent Braley was the most experienced in tactics. ECF No. 144-22 at 157:21-159:16. The entry team needed to clear the house from the backyard by breaking the windows and using mirrors to peer inside of the rooms due to the aggressive pit bulls inside. Id. at 131:1-25. However, just before going outside to break the windows Sergeant Grady mentioned to Agent Braley that the backyard had not yet been cleared. ECF No. 144-5 at 10. In some respects, at this point the plan changed-from a plan to clear the house to a plan to clear the backyard. ECF No. 144-26 at 310:1-311:23.

Agent Braley had been trained to communicate his plans over the radio under these circumstances. ECF No. 144-28. Agent Braley had received a Training Bulletin titled “Tactics in Use of Force Situations.” Id. It instructed officers to “[c]oordinate and communicate with other officers arriving on scene, ” and “[k]now the location of these back-up officers and approach the call as a team.” Id. at 1. It stated that officers were to (1) plan; (2) communicate, (3) maintain situational awareness; (4) listen to their radios; and (5) slow things down. Id. Finally, the bulletin warned officers: “Do not forget, several other agents will be involved. It is absolutely critical to communicate what your intentions are. Do not assume others on scene know what your plan is.” Id. Despite this training, Agent Braley neglected to broadcast their new plan. See ECF No. 144-6.

The team exited the house through the north door. ECF No. 144-5 at 5-6. Agent Braley led the group, followed by Sergeant Grady and Agent Okamura. Id. Immediately outside the door there was a carport containing a classic car covered by a tarp. Id. Agent Braley stepped to the left to clear the deep-left corner of the yard. Id. After clearing the corner, he “collapse[d] his sector” by visually panning around from left to the right. ECF No. 114-1 at 332-333. As he did so, Agent Braley heard a voice say “hey” in a conversational manner. ECF No. 144-5 at 6. He activated his rifle light and spotted a man peering over the privacy fence. Id. Unbeknownst to Agent Braley, the man peering over the fence was Agent Davies. Id. Agent Braley could see the man’s face and both hands. Id. He was holding a semi-automatic pistol in his right hand and a flashlight in his left hand. Id.; ECF No. 144-3 at 309:17-24.

Plaintiff’s expert, Dr. Ron Martinelli, believes that Agent Davies most likely was directly facing Agent Braley. ECF No. 144-20 at 66. He also concluded that Agent Braley’s rifle mounted lighting system would have illuminated Agent Davies’ face. Id. at 65. The two officers knew each other prior to November 9, 2012 because they worked together at the same station. ECF No. 144-26 at 225:23-226:19. Thus, Dr. Martinelli concluded that Agent Davies would have been identifiable. ECF No. 144-20 at 65-66. He also determined that in some positions the shoulder patches on Agent Davies’ police jacket would have been visible and identifiable. Id. at 66. Additionally, Chief Paletta acknowledged that Agent Davies’ carrying of a flashlight indicated that he was a police officer and not a suspect. ECF No. 144-3 at 309:25-310:6.

After spotting the man peering over the fence, Agent Braley yelled, “Police, drop the gun, drop the gun.” ECF No. 144-5 at 6. Within three seconds, Agent Braley fired six shots at Agent Davies. ECF No. 144-10 at 140:11. Plaintiff’s expert, Dr. Richard Ziernicki, through a recreation of the incident, concluded that Agent Braley was between 23 and 28 feet away from Agent Davies when he fired his gun. ECF No. 144-16 at 34. One bullet struck Agent Davies just below his left eye and killed him. Id. at 14, 34. One bullet passed through the fence and into the wall of the apartment building behind him. Id. at 34. The remaining four bullets were shot above the fence line. Id. Dr. Ziernicki determined that Agent Davies’ head and both hands were over the fence and were visible to Agent Braley when he fired the fatal shot. ECF No. 144-17 at 14. Furthermore, Dr. Ziernicki opined that Agent Davies had his gun pointed down throughout the entire encounter. Id.

Agent Braley urges the Court to focus on the reasonableness of his conduct at the moment he fired his weapon. However, Tenth Circuit precedent indicates that the “totality of the circumstances” embraces conduct “immediately connected with the seizure, ” such as conduct “arguably creating the need for force.” Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1189 (10th Cir. 2001). Here, however, the Court need not delineate at exactly what point Agent Braley’s conduct becomes too attenuated to be “immediately connected with the seizure.” Even if the Court limits its analysis to the mere seconds preceding the firing of the fatal shot, plaintiff’s version of the facts describes circumstances under which a reasonable officer would have been able to identify the man peeking over the fence as a fellow officer rendering the use of deadly force objectively unreasonable. Agent Davies (1) was in a perimeter position; (2) held a flashlight in one hand and a gun in the other hand; (3) spoke in a conversational tone and volume; and (4) kept his gun pointed at the ground. Furthermore, the rifle light fully illuminated Agent Davies’ face and in some positions the police patches on his jacket. Certainly if a reasonable officer recognized Agent Davies as a fellow officer, he also would have recognized that Agent Davies was not a threat and would not have shot him. Young, 404 F.3d at 23; see also Jensen v. City of Oxnard, 145 F.3d 1078, 1086 (9th Cir. 1998) (shooting a fellow police officer would be objectively unreasonable if the shooter “should have been able to recognize that the figure he was shooting was a fellow officer[.]”). Put another way, a reasonable officer would not have perceived a fellow officer as a threat of serious physical harm to himself or others, and thus he would not have had probable cause to use deadly force.

In Duy Ngo Judge Kyle commented, “In cases involving a police officer shooting another police officer, courts have generally concluded that the shooting officer is not entitled to qualified immunity because the court cannot say, as a matter of law, that the shooting officer made a reasonable mistake in shooting a fellow officer; courts allow a jury to decide whether the shooting officer’s actions were objectively reasonable.” 2006 WL 1579873, at *7 (listing cases). I agree with that conclusion as to the application of the qualified immunity doctrine to the claims against Agent Braley in the present case.

In sum, plaintiff has carried the first part of the two-part burden. A reasonable jury could find that Agent Braley’s use of deadly force violated Agent Davies’ Fourth Amendment right to be free from excessive force.

2. Clearly Established

The next inquiry is whether the conduct alleged by plaintiff-if proven at trial and accepted by the jury-violated clearly established law. Estate of Booker v. Gomez, 745 F.3d ...

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