George v. City of Lakewood

          ORDER ADOPTING AS MODIFIED MAY 13, 2019 RECOMMENDATION OF MAGISTRATE JUDGE GRANTING DEFENDANTS' MOTION TO DISMISS

          William J. Martínez, United States District Judge

         This matter is before the Court on United States Magistrate Judge Scott T. Varholak's Recommendation dated May 13, 2019 (the “Recommendation”; ECF No. 62), which recommended that this Court grant Defendants' Motion to Dismiss (ECF No. 30). The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). Plaintiff Eric St. George (“St. George” or “Plaintiff”) filed an Objection to the Recommendation (“Objection”; ECF No. 63), to which Defendants responded (ECF No. 64).

         For the reasons set forth below, the Recommendation is adopted as modified, St. George's Objection is overruled, and Defendants' Motion to Dismiss is granted.

         I. LEGAL STANDARD

         When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to.” An objection to a recommendation is properly made if it is both timely and specific. United States v. 2121 East 30th St., 73 F.3d 1057, 1059-60 (10th Cir. 1996). An objection is sufficiently specific if it “enables the district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute.” Id. at 1059. In conducting its review, “[t]he district judge may accept, reject, or modify the [recommendation]; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3). Here, St. George filed a timely objection to the Recommendation. (ECF No. 63.) See also Price v. Philpot, 420 F.3d 1158, 1163-67 (10th Cir. 2005) (discussing the prison mailbox rule). Therefore, the Court reviews the issues before it de novo, except where otherwise noted.

         In considering the Recommendation, the Court is also mindful of St. George's pro se status, and accordingly, reads his pleadings and filings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007). The Court, however, cannot act as advocate for St. George, who must still comply with the fundamental requirements of the Federal Rules of Civil Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also Ledbetter v. City of Topeka, 318 F.3d 1183, 1188 (10th Cir. 2003).

         II. BACKGROUND

         The following factual summary is drawn from St. George's Affidavit (“Affidavit”; ECF No. 14-2) that he submitted with his Third Amended Complaint (ECF No. 14-1).^[1]The Court assumes the allegations contained in the Affidavit to be true for the purpose of deciding the Motion to Dismiss. Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).

         The events that give rise to this lawsuit began on July 31, 2016. (¶ 1.)^[2] That evening, St. George browsed a website “known for advertising prostitutes and sex workers, ” and ordered the services of an escort. (¶¶ 1-3.) At approximately 9:00 p.m., the escort arrived at St. George's residence in Lakewood, Colorado. (¶ 2.) Based upon the advertised price of $220 for one hour of service, St. George had placed $220 in cash on his kitchen counter, which the escort took upon her arrival. (¶ 3.)

         After performing 30 minutes of the one-hour service, the escort announced her intent to leave. (¶ 6.) St. George demanded his money back but did not “‘grab her' or physically restrain her in any way.” (Id.) The escort refused to return the money and pushed St. George as she exited the residence. (Id.) Fearing that he was being robbed and that the escort “had a pimp or a bouncer” waiting outside, St. George grabbed a small handgun from his pants on the floor and pursued the escort. (¶¶ 7-9 (internal quotation marks omitted).) When she was within feet of her vehicle, the escort turned to confront St. George with a can of mace. (¶ 9.) St. George “raised his arm overheard [and] fired on[e] round up into the air, warning away [the escort's] imminent attack.” (Id.) St. George then lowered his arm and took aim at the escort, but did not fire. (¶¶ 9-11.) The escort fled and St. George proceeded “to a local restaurant for dinner and drinks.” (¶¶ 9, 12.)

         At 10:09 p.m., approximately twenty minutes after St. George fired his handgun, the escort contacted the Lakewood Police Department (“LPD”) to report that St. George had “made illicit sexual contact” with her and had fired two gunshots-“one in the air, and a second false gunshot aimed at her.” (¶ 11.) St. George was unaware that the escort had called the police, but he did anticipate that his neighbors might have contacted law enforcement to report the sound of a gunshot. (¶¶ 13-14.)

         Four LPD officers responded to the scene at 10:13 p.m., and parked their vehicles in a location that could not be observed from St. George's residence. (¶¶ 15-16.) Among these officers were Defendants Agent Devon Trimmer (“Agent Trimmer”) and Sergeant Jason Maines (“Sergeant Maines”). (¶ 16.) At approximately 11:15 p.m., St. George returned home from dinner but did not see any “people or strange vehicles . . . in the immediate area around [his residence].” (Id.)

         At 12:17 a.m., LPD officers attempted to contact St. George by phone using a blocked number, but St. George did not answer. (¶ 17.) The officers tried again at 12:20 a.m., and this time St. George answered and spoke with one of the officers for 2 minutes and 32 seconds. (¶ 19.) During the phone call, the officer identified himself as an agent with the LPD and instructed St. George “to come outside to talk to [the] Police.” (Id.) St. George opened his front door and looked outside, but could not see any police officers or police vehicles because they were hiding around the corner of the building. (¶ 20.)

         At 12:23 a.m., LPD officers made a third phone call to St. George using a blocked number, but St. George did not answer. (¶ 21.) The officers tried again at 12:24 a.m., and this time St. George answered and spoke with one of the officers for 5 minutes and 5 seconds. (¶ 22.) During the phone call, the officer identified himself as a sergeant with the LPD and informed St. George that the officers knew he was inside the residence because the officer's “friends” were in the backyard and could see St. George through the windows. (Id. (emphasis omitted).) The officer also told St. George to come outside to talk to the police. (Id.) The officer reported that St. George was “‘upset', ‘unsettled,' and ‘paranoid, '” and that St. George did not believe that the call was from the police. (¶ 23.)

         At 12:30 a.m., LPD officers called St. George for a fifth time using a blocked number. (¶ 24.) St. George did not answer the call, but instead exited his backyard door unarmed to investigate the presence of the officer's “friends.” (¶¶ 25, 28 (emphasis omitted).) Sergeant Maines and Agent Trimmer were in the backyard but St. George could not see them as they were “hiding in the shadows along the fenceline.” (¶ 26.) Sergeant Maines reported that St. George “looked tentative” and Agent Trimmer reported that St. George had a cell phone in his hands. (¶¶ 27-28.) At 12:32 a.m., St. George went back inside his home after seeing “no reasonable sign of police presence.” (¶¶ 30-31.) Sergeant Maines radioed that the officers had not yet made contact with St. George, that “he came out, looked around, went back in real quick” and locked the door. (¶¶ 29, 31.)

         At 12:32 a.m., LPD officers called St. George for the sixth time. (¶ 32.) St. George answered and spoke with one of the officers for 5 minutes and 54 seconds. (¶¶ 32-33.) During the phone call, the officer identified himself as a police officer and told St. George that the police were outside his residence. (¶ 32.) Having not seen the police on his two previous trips outside, St. George told the officer “you aren't (out) there.” (Id. (parenthetical in original).) The officer proceeded to tell St. George to come back outside with “nothing in his hands, ” to which St. George responded, “I have something in my hands.” (¶ 33.) The officer then conveyed on the police radio that St. George was “being threatening on the phone.” (Id.)

         Believing that somebody was “impersonating [the] police to lure him out for an attack, ” St. George grabbed a shotgun and exited the door to his backyard at 12:38 a.m. (¶¶ 34-35.) Once outside, St. George “loudly pumped the action of his shotgun, ejecting a live shell onto the ground, ” so as to “announc[e] his presence.” (¶ 36.) Agent Trimmer radioed, “Did you hear that gun rack?” (Id.) Sergeant Maines responded, “Okay, yeah, send us some more cars, [St. George] just came out and racked a gun.” (¶ 38.) Sergeant Maines and Agent Trimmer then moved around the east side of the building to the front, with Agent Trimmer hiding behind a truck in the communal driveway and Sergeant Maines hiding behind foliage. (¶¶ 38-39, 49.)

         Sergeant Maines then radioed: “Is there somebody standing on the West side of the building . . ., where the backyards are? Is that one of you guys?” (¶ 41.) “Due to darkness, [St. George] could not be discerned from a police officer, by a police officer, that knew there were police officers on scene.” (Id.)

         At 12:43 a.m., St. George “began to walk from the backyard to the front side of the building, around the East end of the building.” (¶ 42.) Seconds later, Sergeant Maines radioed: “Alright Devon (Trimmer), he's coming East, he's walkin' fast, straight towards you.” (¶ 43 (parenthetical in original).) Still hiding behind the truck, Agent Trimmer heard Sergeant Maines's warning, followed by “the sound of crunching gravel and footfalls.” (¶ 45.) Agent Trimmer then observed St. George “walking through the communal driveway” at the front of his residence, with his shotgun “pointed downward in the ‘low ready' condition.” (¶ 46.) When St. George “came into her view, ” Agent Trimmer “opened fire on him” and shot him in the leg. (¶ 47.) In the approximately six minutes between the time St. George exited his residence and when he was shot by Agent Trimmer, none of the LPD officers announced a warning or told him to drop his weapon. (¶¶ 35-48.)

         St. George returned fire on Agent Trimmer from a position in the street but missed, with his “shotgun pellets str[iking] the garage door above Trimmer's location.” (¶¶ 48-49.) Agent Trimmer retreated around the truck and then fired a second round at St. George but missed, striking the street. (¶ 50.) St. George again returned fire on Agent Trimmer from the “end of the communal driveway.” (¶ 51.) Agent Trimmer then fired a third round at St. George, again missing. (¶ 52.) St. George began to run back toward his residence but stumbled on the curb and fell into the grass. (¶ 53.) Sergeant Maines, who was hiding behind a nearby bush, activated a flashlight under the barrel of his handgun and aimed the weapon at St. George. (¶ 54.) “[T]hreatened by a second unidentified armed assailant, ” St. George sat up and fired three rounds at Sergeant Maines, with each round missing its target. (¶¶ 55-56.)

         St. George then retreated back into his residence at 12:45 a.m. and called 911. (¶¶ 58-59.) During the phone call, St. George informed the police dispatcher that he had been shot by an unknown assailant and that he had returned fire. (¶ 59.) Between 12:55 a.m. and 12:57 a.m., LPD officers conveyed over the radio that they were hearing additional gunfire-up to four shots. (¶¶ 62-64.) The fourth and final shot was fired into the ceiling of the breezeway outside St. George's front door when the door was opened by LPD officers. (¶ 64.) St. George was taken into custody at 1:00 a.m and formally arrested later at a hospital. (¶¶ 64-66.) At the time of the incident, LPD officers did not have in their possession an arrest warrant for St. George. (¶ 66.) Defendants Detective Jeff Larson (“Detective Larson”), LPD Chief of Police Dan McCasky (“Chief McCasky”), and the City of Lakewood are not mentioned in the Affidavit describing the events of this lawsuit. (See generally ECF No. 14-2.) The allegations against them are contained only in the Third Amended Complaint. (ECF No. 14-1.) Detective Larson allegedly created a “false narrative” about St. George's role in the firefight, which was used during St. George's criminal trial. (Id. at 14-17.) Detective Larson's false narrative included allegations that St. George (1) fired a round into the ceiling outside his front door while chasing the escort; (2) fired a second round at the escort “in an attempt to kill her”; and (3) fired his weapon at Agent Trimmer before she fired at him. (Id.) Chief McCasky allegedly “approved, and trained his staff” in numerous customs and policies that St. George contends are unconstitutional. (Id. at 17-19.) The City of Lakewood allegedly failed to adequately train its police officers, and established unconstitutional customs for its police department. (Id. at 19-22.)

         III. PROCEDURAL HISTORY

         On July 30, 2018, St. George filed the instant action. (ECF No. 1.) St. George's currently operative complaint is his Third Amended Complaint, wherein he asserts numerous federal and state causes of action against each Defendant. (ECF No. 14-1.) On December 3, 2018, United States Senior District Judge Lewis T. Babcock issued an Order to Dismiss in Part and to Draw Case, wherein Judge Babcock dismissed a variety of St. George's claims and other requests. (ECF No. 17.) These included St. George's demand to appoint a special prosecutor, a claim for declaratory judgment, all asserted criminal claims, and all claims relating to a 42 U.S.C. § 1985 conspiracy. (See id.)

         As a result of Judge Babcock's order, St. George's remaining claims include: (1) excessive use of force against Agent Trimmer; (2) failure to prevent excessive force against Sergeant Maines; (3) supervisory liability for excessive force against Chief McCasky; (4) municipal liability for excessive force against the City of Lakewood; (5) denial of due process against all Defendants; and (6) various state law tort claims against all Defendants.^[3] (ECF No. 14-1; see also ECF No. 62 at 5; ECF No. 54 at 1-2.)

         On January 31, 2019, Defendants moved to dismiss all of St. George's remaining claims. (ECF No. 30.) The undersigned referred the Motion to Judge Varholak, who issued his Recommendation on May 13, 2019. (ECF No. 62.) On May 28, 2019, St. George filed an Objection to the Recommendation. (ECF No. 63.)

         IV. EXCESSIVE FORCE CLAIMS

         A. Excessive Force Claim Against Agent Trimmer

         St. George seeks relief under 42 U.S.C. § 1983 for the alleged use of excessive force by Agent Trimmer, in violation of his Fourth Amendment rights. (ECF No. 14-1 at 6-7.)

         “[A]ll claims that law enforcement officers have used excessive force-deadly or not-in the course of an arrest, investigatory stop, or other ‘seizure' of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness' standard.” Graham v. Connor, 490 U.S. 386, 395 (1989). Under this standard, “[t]he ‘reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396; see also Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473 (2015). Thus, “the question is whether the officers' actions are ‘objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397.

         “In determining the reasonableness of the manner in which a seizure is effected, ‘[courts] must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.'” Scott v. Harris, 550 U.S. 372, 383 (2007) (quoting United States v. Place, 462 U.S. 696, 703 (1983)). This balancing test “requires careful attention to the facts and circumstances of each particular case, including [1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396; see also Lundstrom v. Romero, 616 F.3d 1108, 1126 (10th Cir. 2010) (referring to the Graham factors as the “three, non-exclusive factors relevant to [an] excessive force inquiry”).

         The Court's “balancing must always account ‘for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.'” Pauly, 874 F.3d at 1215 (quoting Graham, 490 U.S. at 396-97). “Ultimately, ‘the inquiry is always whether, from the perspective of a reasonable officer on the scene, the totality of the circumstances justified the use of force.'” Pauly, 874 F.3d at 1215 (quoting Estate of Larsen v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008)).

         St. George claims that Agent Trimmer used excessive force when she shot him in the leg. (ECF No. 14-1 at 6.) To analyze the reasonableness of Agent Trimmer's actions, the Court turns to the seminal three factor test from Graham. 490 U.S. at 396.

         1. The First Graham Factor

         Under the first Graham factor, courts examine “the severity of the crime at issue.” Id. In analyzing the factor, the Recommendation discussed how Agent Trimmer was responding to a 911 call alleging that St. George had made “illicit sexual contact” with a woman and that he had fired two gunshots during the incident, with the second gunshot aimed at the woman. (ECF No. 62 at 11.) Thus, the Recommendation found that the underlying crime Agent Trimmer was investigating was “undoubtedly serious.” (Id.)

         The Recommendation noted that although St. George “maintains that the sexual contact was consensual and that he had only fired a single shot into the air, the reasonableness of Agent Trimmer's conduct must be determined based upon ‘what the officer knew at the time, not with the 20/20 vision of hindsight.'” (Id. at 11 n.2 (quoting Kingsley, 135 S.Ct. at 2473).) The Recommendation also discussed how St. George “does not allege any facts available to Agent Trimmer at the time that would have put her on notice . . . that the escort was providing false information.” (ECF No. 62 at 11 n.2.) As a result, Judge Varholak found that the first Graham factor weighs in favor of Agent Trimmer. (Id. at 11.)

         In the Objection, St. George's bases his arguments on the Tenth Circuit's analysis of the first Graham factor in Pauly, 874 F.3d at 1215. (ECF No. 63 at 3-4.) In Pauly, the suspect was involved in a road rage incident with two females on an interstate highway. 874 F.3d at 1203. The two females called 911 to report that the suspect was drunk behind the wheel, and then began to follow the suspect, apparently tailgating him. Id. The suspect pulled over at an off-ramp and the two females followed suit. Id. The suspect “felt threatened by the women and asked them why they were following him with their bright lights on.” Id. The suspect then left the off-ramp and drove a short distance to his home. Id.

         Police officers subsequently arrived at the off-ramp, but by then the suspect had already left the scene. Id. The officers spoke to the two women and “all agreed that there was not enough evidence or probable cause to arrest [the suspect], and that no exigent circumstances existed at the time. Nevertheless, the officers decided to try and speak with [the suspect] to get his side of the story, ‘to make sure nothing else happened,' and to find out if he was intoxicated.” Id. at 1203-04. The officers then proceeded to the suspect's house, where the officers fatally shot the suspect's brother during a standoff. Id. at 1204-05.

         In analyzing the first Graham factor, the Tenth Circuit discussed how once the officers arrived at the scene in response to a call concerning road rage, “the Officers did not believe any exigent circumstances existed, ” and they “did not have enough evidence or probable cause to make an arrest.” Id. at 1215. The Tenth Circuit then found that the first Graham factor weighed against the officers because it was “unclear from the record what, if any, crime was committed, ” and “[a]t best, the incident might be viewed as a minor crime such as reckless driving or driving while intoxicated.” Id. at 1215 & n.5 (“Under New Mexico law, reckless driving and driving while intoxicated (first offense) are misdemeanor offenses.”).

         Relying on Pauly, St. George argues that while the escort's allegations against him were “serious, it did not rise to the level of probable cause, ” and gave Agent Trimmer nothing more than “reasonable suspicion.” (Id. at 3.) In support, St. George discusses a case from the Ninth Circuit analyzing when a 911 call supports “reasonable suspicion” to justify an investigatory stop. (Id. at 3-4 (discussing United States v. Edwards, 761 F.3d 977, 983 (9th Cir. 2014)).) St. George argues that the analysis from Edwards is applicable here and thus Agent Trimmer had only reasonable suspicion as a result of the escort's 911 call. (ECF No. 63 at 4.) However, St. George asserts that Agent Trimmer, like the officers in Pauly, “lacked probable cause to support that any crime had taken place.” (Id.) St. George claims that without probable cause to support the escort's allegations, the “‘severity of the crime' factor can't be judged to weigh in Trimmer's favor.” (Id. at 4.)

         The Court finds St. George's arguments to be unconvincing. Indeed, “when analyzing Graham's first prong, a court must assume that the crime for which the officer believes he has probable cause is valid.” McGarry v. Bd. of Cty. Comm'rs for Lincoln, 294 F.Supp.3d 1170, 1196 (D.N.M. 2018) (citing Morris v. Noe, 672 F.3d 1185, 1195 & n.4 (10th Cir. 2012)). Accordingly, courts are to “consider[ ] what crime the law enforcement officer asserts is at issue without analyzing whether he had probable cause for that arrest.” McGarry, 294 F.Supp.3d at 1196-97 (emphasis added) (citing Morris, 672 F.3d at 1195).

         Moreover, it is readily apparent that St. George has misconstrued the first Graham factor as his analysis focuses not on “the severity of the crime at issue, ” but instead on whether the officer had probable cause that the crime at issue was committed. This is not the test articulated in Graham. 490 U.S. at 396. Similarly, the Court also finds that St. George has misread the crux of the holding in Pauly regarding the first Graham factor-namely, that the factor weighed in the suspect's favor because he had committed, “[a]t best, . . . a minor crime.” Pauly, 874 F.3d at 1215; see also id. at 1215 n.5 (discussing how the “minor crimes” at issue were misdemeanors).

         Here, the crimes at issue were undeniably serious. Agent Trimmer arrived on scene to investigate a 911 call concerning “illicit sexual contact” and gunfire, with a gunshot allegedly being fired at an individual. (¶ 11.) Indeed, St. George even concedes in his Objection that the allegations against him were “serious.” (ECF No. 63 at 3.) Notably, this case did not merely involve “misdemeanor [traffic] offenses.” See Pauly, 874 F.3d at 1215 & n.5. Rather, the crimes at issue in this case were much more serious, and potentially included, inter alia, attempted second-degree murder (felony), Colo. Rev. Stat. § 18-3-103(1); menacing with use or suggested use of a deadly weapon (felony), Colo. Rev. Stat. § 18-3-206(1)(a)-(b); illegal discharge of a firearm (felony), Colo. Rev. Stat. § 18-12-107.5(1); prohibited use of a firearm (misdemeanor), Colo. Rev. Stat. § 18-12-106(1)(a)-(b); and unlawful sexual contact (misdemeanor), Colo. Rev. Stat. § 18-3-404. See also Clark v. Bowcutt, 675 Fed.Appx. 799, 807 (10th Cir. 2017). As a result, the Court the agrees with the Recommendation and finds that the first Graham factor weighs in favor of Agent Trimmer.

         2. The Second Graham Factor

         The second Graham factor, “whether the suspect pose[ed] an immediate threat to the safety of the officers or others, ” 490 U.S. at 396, “is undoubtedly the most important and fact intensive factor in determining the objective reasonableness of an officer's use of force, ” Pauly, 874 F.3d at 1216 (internal quotation marks omitted). Because Agent Trimmer used deadly force, her use of such force is only justified “if a reasonable officer in [her] position would have had probable cause to believe that there was a threat of serious physical harm to [herself] or to others.” Estate of Larsen, ...