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Estate of Ceballos v. Husk

United States District Court, D. Colorado

June 1, 2017

ESTATE OF JAIME CEBALLOS; QUIANNA VIGIL; NAVEYAH CEBALLOS, through next friend; and JAYDEN CEBALLOS, through next friend; Plaintiffs,
v.
WILLIAM HUSK, individually; CITY OF THORNTON; Defendants.

          ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. 40)

          Richard P. Matsch, Senior District Judge

         The Estate of Jaime Ceballos brings claims under 42 U.S.C. § 1983 against Thornton Police Officer William Husk individually, alleging the use of excessive force in violation of the Fourth Amendment (First Claim); and against the City of Thornton for having deliberately indifferent policies, practices, procedures, and/or customs for Thornton police officers who are likely to encounter citizens with mental illness (Third Claim). The Estate also asserts a claim against Thornton under the Americans with Disabilities Act, alleging failure to make reasonable accommodations in its emergency medical response and law enforcement services (Fourth Claim). The individual plaintiffs, Ceballos' widow and children, assert a Colorado state law wrongful death claim against Officer Husk (Fifth Claim).[1]

         On August 30, 2013, at approximately 7:30 p.m., Thornton police dispatch received a 911 call from Plaintiff Quianna Vigil. Vigil reported that her husband, Jaime Ceballos, was standing in the driveway of their home with two bats and acting crazy; that she was afraid and had her 17-month old daughter with her; that Ceballos was drunk and probably on drugs; and that two of Ceballos' friends were with him. Several City of Thornton police officers responded to the dispatch call. Within one minute of their arrival Officer Husk shot and killed Ceballos.

         Thornton police dispatch aired the request for service as a high priority disturbance involving a party armed with one or more bats, describing it as a “DK [drunk] unwanted party” and a “disturbance.” There was no report that Ceballos had injured anyone that day. Vigil told dispatch that Ceballos had threatened her with a knife a few months earlier. That information was placed only on the Computer-Aided-Dispatch (CAD) system. Officer Husk's affidavit says he did not read the CAD information before the shooting.

         Radio traffic and the CAD system also provided information that that Ceballos had been a “walkaway” from the North Suburban Medical Center in Thornton the previous night. One of the responding officers on August 30, Michael Snook, had contacted Ceballos in connection with the walkaway and had given him a ride home, but did not know why he had been at the hospital.

         Officer Husk and Officer Eric Ward arrived in separate vehicles at about the same time. Both parked near the vehicle in which Vigil had parked with her daughter, several houses down the street from the driveway where Ceballos was located. The officers spoke to Vigil and identified her as the reporting caller, and then began to walk toward Ceballos. As Officers Ward and Husk walked toward the residence, two men who had been with Ceballos, Andrew Castillo and Sergio Martinez, approached and told officers that Ceballos was not acting right and might be on drugs. Castillo and Martinez say that the officers refused to take additional information from them and continued to advance toward Ceballos. Castillo says he was told to “shut the fuck up” and “get back.” Shortly after Officers Husk and Ward arrived, Officer Michael Snook and Commander Dante Carbone also arrived at the scene in separate cars. Carbone parked in the same vicinity as Officers Husk and Ward and observed them as they proceeded toward Ceballos. Snook parked one to two houses away in the other direction and approached from the opposite side of Ceballos. Thus there were officers in the street approaching Ceballos from both directions.

         When Officers Husk and Ward were approximately 100 yards from the residence, they saw Ceballos pacing in the driveway, swinging a baseball bat, yelling and throwing his arms in the air. By this time, the officers knew that Vigil and her daughter were parked down the street from Ceballos and that Ceballos' two friends had also left his immediate vicinity. They did not see any neighbors or other members of the public.

         Officers Husk and Ward walked in the middle of the street toward Ceballos to keep a clear line of sight. They both repeatedly shouted commands for Ceballos to drop the bat. Instead of doing so, he went into his garage. Either before or after Ceballos went into the garage, Officer Husk drew his firearm and Officer Ward drew his less lethal taser. Ceballos emerged from the garage with the bat in his hand and began walking toward the officers, who had their weapons drawn and continued shouting commands. The evidence is conflicting as to whether Ceballos was walking quickly or slowly toward the officers and whether Officers Husk and Ward continued to advance toward Ceballos or stopped their approach to give him an opportunity to comply with their commands. It is undisputed that he did not comply with their commands, instead responding with comments such as “Fuck you!” and “Or what, Motherfucker?” Officer Husk says he replied, “Or you will be shot, ” and continued to order him to stop and drop the bat. Officers Husk and Ward have testified that they did not retreat from Ceballos because, in accordance with their training, they wanted to try to contain him and to prevent him from running away and endangering the public. They also say they were in fear for their lives.

         At some point Officer Ward fired his taser, but again the evidence is conflicting. Officer Husk says in his affidavit that he heard Officer Ward “indicate” he was going to deploy his taser, but does not say that Officer Ward actually did so, or when. Officer Ward says in his affidavit that he fired his taser when Ceballos was approximately 12 to 15 feet away from him, but it was ineffective. Officer Ward says he has been trained to shout “taser” three times before deploying it, but does not recall whether he did on this occasion. He states that Officer Husk fired his gun after the taser had no effect. Officer Husk states that he fired his gun when he was approximately 15 to 20 feet from Ceballos. Officer Snook says he did not hear any “taser” warnings. According to Castillo, who was watching from down the street, the sound of the taser followed the gunshots. From this conflicting evidence a jury could infer that Officer Husk fired his gun at virtually the same time that Officer Ward deployed his taser, if not sooner.

         Meanwhile, Officer Snook at first began approaching Ceballos from the opposite direction. After he had walked part of the way to Ceballos and observed him in the driveway, he sprinted back to his car to get his less lethal weapon, a beanbag shotgun, which he says could be used effectively at a greater distance than the taser. He testified that he recognized Ceballos from the walkaway incident the night before, and thought from observing him in the driveway that something in his face “didn't seem right.” When Snook turned to get his shotgun, he did not think that either his own life or the lives of the other officers were in danger given their respective distances from Ceballos and that he was armed with a baseball bat.

         Officer Husk reported, after the incident, that he saw a knife in Ceballos' other hand as the distance narrowed between the officers and Ceballos. Castillo and Martinez say Ceballos was not carrying a knife. Officer Husk admits he never reported seeing this knife to any other officer until after he shot Ceballos, and that his commands to Ceballos were to drop the bat. Officers Ward and Snook and Commander Carbone did not see a knife until after Ceballos had been shot. A responding fire fighter reported seeing a closed pocketknife fall out of Ceballos' pocket after he had been shot, as responders rolled him over.

         Every Thornton police officer receives training on proper use of force, including deadly force. It is disputed to what extent Thornton has policies or provides training regarding the use of force against mentally ill, emotionally disturbed, or disabled individuals.

         Thornton offers a 40-hour Crisis Intervention Training (CIT) course that specifically deals with using force and interacting with the mentally ill, emotionally disturbed, or individuals in crisis. CIT is specifically designed to train officers to deal with people in crisis by using techniques such as maintaining safety by using time and distance; taking steps to calm the situation by using quiet voices; avoiding getting too close, too fast; not rushing into the situation; assessing the need for backup; making a plan with fellow officers for the best course of action; gathering information from those on the scene; avoiding escalating the situation; communicating in a calm, non-threatening manner; not having multiple people giving commands at the same time; and containing the subject by establishing a perimeter.

         CIT training is not mandatory in Thornton, and only some 50% of its officers are CIT- trained. Written City policy states that it is “recommended” that “[w]henever possible” a CIT-trained officer will respond to calls involving persons who are mentally ill or experiencing a crisis (such as persons “exhibiting unusual behavior”), but there is no policy or mechanism to ensure that a CIT-trained officer responds to calls that involve ...


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