Adams v. Jonsgaard

          ORDER

          Kathleen M Tafoya United States Magistrate Judge

         This case comes before the court on “Defendant Gerald Jonsgaard's Motion for Summary Judgment Pursuant to Fed.R.Civ.P. 56” (Doc. No. 38 [Mot.], filed July 25, 2017). Plaintiff did not file a response.

         STATEMENT OF THE CASE

         In his Complaint, Plaintiff alleges on December 15, 2013, he drove to his girlfriend's house, and when he arrived there an Aurora police officer was sitting behind his vehicle with his lights off. (Doc. No. 6 [Compl.] at 4.) Plaintiff states he rolled down his window and was asked by a screaming officer if Plaintiff had any weapons in his vehicle. (Id.) Plaintiff states he responded that he did have a weapon, and then he put the butt end of his weapon out of the window. (Id.) The police officer told Plaintiff to put the weapon back inside the vehicle, and Plaintiff complied. (Id.) Plaintiff then tried to exit his vehicle and was told to stay inside. (Id.) Plaintiff alleges he suddenly was surrounded by twenty to twenty-five Aurora police officers, and Defendant Jonsgaard “ordered the officers to discharge their weapons into [Plaintiff's] vehicle.” (Id.) Plaintiff alleges the officers fired fifty-four bullets into his vehicle, one of which struck him in his left knee. (Id. at 5.)

         Plaintiff's remaining claim is a claim for excessive force, pursuant to 42 U.S.C. § 1983, asserted against Defendant Jonsgaard.

         UNDISPUTED FACTS

         1. During an incident occurring on December 15, 2013, four Aurora Police Department Officers (Officer Petering, Officer Garcia, Officer McCants, and Officer Strickland [sic]) fired their duty weapons at Plaintiff. (Compl. at 4.)

         2. As the incident resulted in an officer involved shooting for the Aurora Police Department, pursuant to protocol, the investigation was reviewed by the Office of the District Attorney, Seventeenth Judicial District. (Mot., Ex. B, Letter to Chief Daniel J. Oates, dated April 4, 2014, regarding “The officer involved shooting of Stephen Harrold Adams, DOB 6/10/1965, on December 15, 2013” [“DA Letter”].)

         3. The Aurora Police Department's involvement in the incident giving rise to this action began with an incoming 911 emergency phone call at approximately 4:54 a.m., from a Shunronica Doucette. (Id. at 1; Ex. C, audio recording of 911 phone call.)

         4. Ms. Doucette told Aurora Dispatch that Plaintiff was at her residence, located at 1742 Jamaica Street, with a double-barrel shotgun, had broken out a window on her home, and two days prior he had fired the same shotgun at her house. (Ex. C.; Ex. M, Aurora Police Department, General Offense Hardcopy, narrative of Officer MacDonald, at 2.)

         5. During that same 911 phone call, Ms. Doucette also stated, “he's going to kill me.” (Ex. C.)

         6. Dispatch aired to officers that there was an armed party, a male with a gun. (Ex. D, audio recording of dispatch.)

         7. It was further aired that the suspect [Plaintiff] had a double-barrel shotgun and had busted out windows. (Ex. E, audio recording of dispatch.)

         8. Plaintiff admitted that on December 15, 2013, he was in possession of a shotgun or sawed-off shotgun. (Ex. A, Req. for Admis. No. 3.)

         9. Aurora Police Officers responded to the scene and located the suspect [Plaintiff] driving in his vehicle. (Ex. B at 1-2; Ex. Q, Aurora Police Department, General Offense Hardcopy, narrative of Officer Olson, at 1.)

         10. The suspect [Plaintiff] returned to 1742 Jamaica Street, whereupon the initial responding Aurora Police Officers [Olson and Stricklin] “activated the ...