United States District Court, D. Colorado
ESTATE OF NATE CARRIGAN; MELISSA CARRIGAN, as Personal Representative of the Estate of Nate Carrigan; KOLBY MARTIN; and TRAVIS THRELKEL, Plaintiffs,
PARK COUNTY SHERIFF'S OFFICE; FRED WEGENER, Sheriff, in his official and individual capacity; and MARK HANCOCK, in his official and individual capacity, Defendants.
OPINION AND ORDER GRANTING MOTIONS FOR SUMMARY
S. KRIEGER, SENIOR UNITED STATES DISTRICT JUDGE
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.
Court exercises jurisdiction pursuant to 28 U.S.C. §
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
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.”
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
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.
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
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.”
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.
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.
Captain Hancock and Sheriff Wegener seek summary judgment
(# 54, 55) on the claims
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).
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.
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).