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Alvar v. Kay

United States District Court, D. Colorado

February 27, 2018

ELIZABETH ALVAR, personal representative of the estate of Patrick O'Grady, Plaintiff,
JONATHAN KAY, Defendant.



         On August 31, 2016, plaintiff Elizabeth Alvar (“plaintiff”), as the personal representative of the estate of Patrick O'Grady (“Patrick”), filed an Amended Complaint against defendant Jonathan Kay (“defendant”), [1] asserting a single claim against defendant of excessive force in violation of the Fourth Amendment to the U.S. Constitution. (ECF No. 38.)

         On June 16, 2017, defendant filed the currently pending motion for summary judgment (“the motion for summary judgment”) (ECF No. 78). Plaintiff has filed a response (ECF No. 90), and defendant has filed a reply (ECF No. 94). In the motion for summary judgment, defendant raises the defense of qualified immunity. (ECF No. 78.)

         I. Legal Standard

         Summary judgment is appropriate “when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Initially, the movant bears the “responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986). If this burden is met, then the non-moving party must set forth specific facts showing that there is a genuine dispute for trial. Id. at 324. A fact is material if it has the potential to affect the outcome of a dispute under applicable law. Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir. 1995). An issue is genuine if a rational trier of fact could find for the non-moving party. Adams v. Am. Guarantee & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000).

         In performing this analysis, the factual record and any reasonable inferences therefrom are construed in the light most favorable to the non-moving party. Id. However, a mere “scintilla of evidence” is insufficient to avoid summary judgment. Turner v. Public Service Co. of Colorado, 563 F.3d 1136, 1142 (10th Cir. 2009). Instead, a non-movant “must proffer facts such that a reasonable jury could find in her favor.” Id.

         II. Qualified Immunity

         To overcome the presumption of immunity created by the assertion of qualified immunity, a plaintiff must show: (1) the defendant's alleged conduct violated a constitutional right; and (2) the right was clearly established at the time of the conduct, “such that every reasonable officer would have understood, that such conduct constituted a violation of that right.” Perea v. Baca, 817 F.3d 1198, 1202 (10th Cir. 2016) (quotation omitted). For a law to be clearly established, ordinarily, “there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Buck v. City of Albuquerque, 549 F.3d 1269, 1277 (10th Cir. 2008) (quotation omitted). In the context of claims under the Fourth Amendment for excessive force, though, “there will almost never be a previously published opinion involving exactly the same circumstances.” Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007). As a result, the pertinent inquiry is “whether the law put officials on fair notice that the described conduct was unconstitutional.” Id. (quotation and internal quotation omitted). “The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation.” Id. (quotation omitted).

         In determining whether a defendant is entitled to qualified immunity, the facts are still viewed in the light most favorable to the non-movant. Buck, 549 F.3d at 1279, 1286-87. The sole inquiry is whether a plaintiff's factual allegations are “sufficiently grounded in the record such that they … will serve as the foundation for answering the legal question before the court.” Cox v. Glanz, 800 F.3d 1231, 1243 (10th Cir. 2015) (quotation omitted) (emphasis in original).

         III. Excessive Force

         Courts evaluate excessive force claims under an objective reasonableness standard, judged from the perspective of a reasonable officer on the scene. Perea, 817 F.3d at 1202.

To determine if an officer's actions were objectively reasonable, we carefully consider the totality of the circumstances, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.

Id. (citing Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865 (1989)) (quotation omitted).

         In the context of an officer's use of deadly force, such force is considered reasonable “only if a reasonable officer in [the officer's] position would have had probable cause to believe that there was a threat of serious physical harm to themselves or to others.” Clark v. Bowcutt, 675 F. App'x 799, 806 (10th Cir. Jan. 5, 2017) (quotation and emphasis omitted).

In assessing the degree of threat the suspect poses to the officer, we consider factors that include, but are not limited to: (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.

Id. (quotation omitted). However, if threatened with a weapon, an officer may use deadly force. Id.

         IV. ...

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