Estate of Carrigan v. Park County Sheriff's Office

          OPINION AND ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT

          MARCIA S. KRIEGER, SENIOR UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court pursuant to Defendant Mark Hancock's Motion for Summary Judgment (# 54) and Defendants Park County Sheriff's Office and Sheriff Fred Wegener Motion for Summary Judgment (# 55), and the Responses and Replies thereto (## 59, 60, 61, 62). For the reasons that follow, the motions are granted.

         I. JURISDICTION

         The Court exercises jurisdiction pursuant to 28 U.S.C. § 1331.

         II. BACKGROUND^[1]

         On February 24, 2016, members of the Park County Sheriff's Office (sometimes “PCSO”) attempted an eviction of an individual named Martin Wirth from a property that Mr. Wirth no longer owned. That eviction ended with the deaths of Sheriff's Corporal Nate Carrigan and Mr. Wirth himself, and gunshot injuries to Deputies Kolby Martin and Travis Threlkel.

         Mr. Wirth was known to members of the PCSO to be armed, dangerous, and to harbor anti-government and anti-law enforcement sentiments; he was also known to have recently expressed threats to “shoot the first cop [he] sees, ” among others. Although Mr. Wirth had previously been peacefully evicted from a residence by PCSO officers in 2014, Undersheriff Monte Gore considered Mr. Wirth to be “extremely dangerous” and both homicidal and suicidal. Undersheriff Gore believed that Mr. Wirth “wanted to commit suicide by cop and take as many officers with him as he could.”

         When it became clear in February 2016 that the PCSO would again be tasked with evicting Mr. Wirth, Undersheriff Gore began devising plans to accomplish that task safely. Over the span of about two weeks, Undersheriff Gore and the seven PCSO officers that would be involved in the operation held a series of meetings to plan a “tactical operation” to complete the job. PCSO officers surveilled the property and its surroundings and prepared maps of the residence's entry points. Most significantly, Undersheriff Gore was concerned that Mr. Wirth “may come out of the residence and go back in.” In his experience, dangerous individuals “will come out of the residence to assess how many officers you have and assess the situation themselves, ” and then return inside to barricade themselves within the residence. If Mr. Wirth did so, Undersheriff Gore instructed that the PCSO officers “were supposed to withdraw to the perimeter, at which time I was supposed to be given a phone call to assess what we were going to do at that point.” Undersheriff Gore instructed Captain Mark Hancock, the PCSO officer who would be in charge of the operation, that “under no circumstances whatsoever were they to enter Wirth's residence.” This plan was consistent with a formal PCSO policy, which instructs that deputies who are confronted with a barricaded subject “shall not initiate tactical actions other that those necessary to protect the lives and safety of themselves or others.” Undersheriff Gore testified that Captain Hancock “understood the order and [said] that he would follow the directive and that I could trust him that no one would be hurt in this operation.”^[2]

         On February 24, the PCSO carried out the eviction plan. Because Corporal Carrigan had a good relationship with Mr. Wirth, he and Captain Hancock made the initial approach to the residence, while the other officers set up a perimeter. Mr. Wirth was sitting on the deck as Captain Hancock and Corporal Carrigan approached. They advised him that they were there to evict him from the house and requested that he leave. Mr. Wirth responded “you're not even going to me time to move my stuff out?” and walked inside the house.

         Despite the plan to return to the perimeter and seek advice, Captain Hancock and Corporal Carrigan instead approached the front door of the residence and called out to Mr. Wirth. When Mr. Wirth did not respond, Captain Hancock directed Deputies Martin, Thelkel, and Lowrance to join him and Corporal Carrigan at the door to prepare for the purpose of breaching the house. Captain Hancock testified that he began to get “worried about what [Mr. Wirth] was doing, where he's going.” He felt that he had had success in other incidents by moving quickly and he decided that he would breach the door, enter the residence, and apprehend Mr. Wirth. Regarding this decision, Captain Hancock subsequently acknowledged that it is reflective of his tendency to be “super aggressive.”

         At about this time, Sheriff Wegener arrived on the scene. From his vehicle in the driveway, Sheriff Wegener communicated by radio with Captain Hancock. The record includes a transcript of recorded radio communications, but does not identify the speakers. Based on context, the Court infers as follows. Captain Hancock reported to the Sheriff, “He saw us from the upper deck, talked to use, and then went back inside.” A few seconds later, Captain Hancock states “Sheriff, I'm going to go.” The Sheriff responded “You guys are going to go up to the door?” and Captain Hancock responded “I'm going through the door.” Captain Hancock then spoke to other officers about their positions. About 45 seconds after his prior communication with the Sheriff, Captain Hancock stated “Okay Sheriff, we're giving too much time. I need to---, ” and the Sheriff responded “Okay. See if you can get him, get his attention at the door.” Captain Hancock responded “I'm going to try that. He's not coming.” Captain Hancock then appears to call out to Mr. Wirth, apparently without any response. Another roughly 45 seconds pass and Captain Hancock states “We're going to go through the door.” The Sheriff responded “Copy, breaching the door.”

         The officers then breached the door and entered the residence. After a short search, they discovered Mr. Wirth had armed and barricaded himself. He opened fire on the officers, and the officers returned fire. Corporal Carrigan and Mr. Wirth were fatally injured in the exchange, and Deputies Threlkel and Martin were wounded.

         Corporal Carrigan's estate, along with Deputies Martin and Threlkel, commenced this suit against the PCSO, Sheriff Wegener, and Captain Hancock. The Amended Complaint (# 32) nominally asserts two claims pursuant to 42 U.S.C. § 1983, alleging that the Defendants violated the Plaintiffs' Fourteenth Amendment rights to substantive due process. Claim 1 seeks relief based on the theory that the Defendants created the danger that a private actor would harm the Plaintiffs by ordering the breach of Mr. Wirth's residence; Claim 2 seeks relief based on the theory that the Sheriff failed to adequately train and/or supervise his deputies. Both claims are purportedly asserted against Sheriff Wegener and Captain Hancock in both their official and individual capacities, but in briefing, the Plaintiffs conceded that Sheriff Wegener would be entitled to qualified immunity on the individual-capacity claims against him. Thus, the Court treats Claim 1 as asserted against Captain Hancock individually and against Sheriff Wegener in his official capacity, and Claim 2 as asserted only against Sheriff Wegener in his official capacity.

         Both Captain Hancock and Sheriff Wegener seek summary judgment (# 54, 55) on the claims against them.

         III. LEGAL STANDARD

         Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive law governs what facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof, and identifies the party with the burden of proof. See Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986); Kaiser-Francis Oil Co. v. Producers Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual dispute is “genuine” and summary judgment is precluded if the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson, 477 U.S. at 248. When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).

         If the movant has the burden of proof on a claim or defense, the movant must establish every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P. 56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the responding party must present sufficient, competent, contradictory evidence to establish a genuine factual dispute. See Bacchus Indus. Inc. v. Arvin Indus. Inc., 939 F.2d 887, 891 (10th Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material fact, no trial is required. The court then applies the law to the undisputed facts and enters judgment.

         If the moving party does not have the burden of proof at trial, it must point to an absence of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove. If the respondent comes forward with sufficient competent evidence to establish a prima facie claim or defense, a trial is required. If the respondent fails to produce sufficient competent evidence to establish its claim or defense, then the movant is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

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