United States District Court, D. Colorado
STEPHEN H. ADAMS, Plaintiff,
v.
GERALD JONSGAARD, Aurora Police Sgt. Jonsgaard, individual capacity, Defendant.
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 ...