United States District Court, D. Colorado
ORDERS ON DEFENDANTS' MOTION FOR SUMMARY
RICHARD P. MATSCH, SENIOR DISTRICT JUDGE
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.
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.
driver lost control and the truck crashed into a tree at the
edge of Columbus Park at 39th 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.
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
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.
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.
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.
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.
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
apparent that the area was sprayed with bullets permitting
the inference that the officers were firing without aiming at
a clear target.
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
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.
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 ...