Valdez v. MacDonald

          ORDERS ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          RICHARD P. MATSCH, SENIOR DISTRICT JUDGE

         During the morning of January 16, 2013, the Denver Police Department (DPD) received calls reporting a domestic violence incident in Thornton and two separate shooting incidents in Aurora and Montbello, all involving a red Dodge pickup truck. Later in the day, Michael Valdez got into the bed of that truck having accepted the offer of the driver, Johnny Montoya, to give him a ride to go to the house of Valdez' brother. Chuck Montoya was in the bed with a load of “junk.” Jude Montoya sat in the passenger seat and Alyssa Moralez sat in the middle. Valdez knew the Montoya brothers. He did not know Moralez and he had no knowledge of any of the incidents involving the truck that morning. Valdez did not have a gun.

         During the afternoon a DPD officer spotted the red truck in northwest Denver and broadcast his observation on the radio. Many officers responded. Officer Derrick encountered the truck, was shot at and narrowly avoided a collision with it. Officer Olive located the truck and began a pursuit. Sgt. Motyka heard the radio calls as he was entering the District One station. He joined in the chase, driving a “slick top” police car. It did not have the roof top lights but did have a siren and wig-wag lights on the dashboard. The truck made many turns and maneuvers on the streets to avoid the police. At one point Motyka was immediately behind the truck and was being fired at. He saw the shots being fired by a man in the bed of the truck and a man leaning out of the passenger window. Several shots went through his windshield. One of them struck his left shoulder causing him to pull over to assess the wound. At that time, Olive moved in front of Motyka and became the lead car in the pursuit. Motyka rejoined the chase following in behind Olive. The truck was emitting smoke from a flattened right front tire.

         The driver lost control and the truck crashed into a tree at the edge of Columbus Park at 39^th Avenue and Osage Street. Olive was first to arrive at the scene. He got out of his patrol car and stood behind the front door to assess the situation. No. shots were being fired by anyone at that time. Motyka arrived within moments and took up a position behind and to the right of Olive's car using it as cover. Jude Montoya, wearing a white “hoodie” was seen running away, having come out of the passenger door of the truck. Other people were coming out that door rapidly. The driver's door was jammed in the crash.

         There are many factual disputes about the sequence of events and the conduct of the officers and occupants of the truck. There are also inconsistent statements and testimony from those present in depositions, interviews and in the trial of Chuck Montoya.

         Without judging the credibility of these witnesses, the following narrative is a version of events that a reasonable jury could find drawing all inferences in favor of Valdez.

         Motyka started shooting immediately on arrival at his position. He fired a burst of six or seven rounds. After a brief pause he fired another burst. Lt. Macdonald arrived in moments and started firing in the same direction as Motyka. He shot six times. In his interview with DPD Motyka said that “probable cause is in my shoulder” suggesting he was acting out of revenge and anger at having been shot.

         Chuck Montoya stayed in the truck bed. During the police pursuit and hearing gunshots, Valdez had crawled up into the cab through the rear window and crouched down above Moralez who was curled up on the floor.

         Valdez and Moralez testified that they went out the passenger door immediately after Jude and went down to the ground in a prone position between the truck and a tree, facing into the park.

         During the bursts of gunfire by Motyka and Macdonald Valdez was hit in a finger and in his back. The bullet that hit him in the back, causing serious injury, came from Motyka's gun. It was not possible to determine whether the bullet that hit his finger came from the shooting by Motyka or Macdonald. During the DPD investigation multiple bullets were found in the lower part of the tree and one on the grass near where Valdez had lain.

         It is apparent that the area was sprayed with bullets permitting the inference that the officers were firing without aiming at a clear target.

         Motyka was in extreme pain from the wound in his shoulder. In an interview with a DPD investigator on January 18, 2013, he said that the pain was causing him to nearly faint, saying that he saw a black cloud closing his peripheral vision and after shooting he backed off to avoid becoming a liability to the other officers. Macdonald helped him to a car. Motyka was very angry as well and very eager to get the occupant who shot him. In the same interview he said that he kept thinking about aiming with the front sight as he had been trained. These statements and the scattered bullets warrant an inference that Motyka started shooting without making any effort to determine whether there was any immediate threat to him or others as the occupants of the cab came out. Johnny Montoya was the last occupant to come out the passenger door. He was shot dead by other officers after failing to obey their commands several minutes after Motyka withdrew from the immediate scene.

         The shootings by Motyka and Macdonald are actions in sharp contrast to the conduct of Olive who was there first and who did not assess an immediate threat requiring shooting for the safety of the officers or anyone else.

         Both Motyka and Macdonald have said that they were firing at a man who had a gun and went to his knee to get into a firing position. Olive did not support that ...