United States District Court, D. Colorado
ELIZABETH ALVAR, personal representative of the estate of Patrick O'Grady, Plaintiff,
JONATHAN KAY, Defendant.
OPINION AND ORDER
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE.
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”),  asserting a single claim against
defendant of excessive force in violation of the Fourth
Amendment to the U.S. Constitution. (ECF No. 38.)
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.)
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).
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.
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
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).
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
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).
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
Id. (quotation omitted). However, if threatened with
a weapon, an officer may use deadly force. Id.