United States District Court, D. Colorado
ERIC ST. GEORGE, Plaintiff,
CITY OF LAKEWOOD, COLORADO; DEVON TRIMMER, a/k/a DEVON MYERS; JASON MAINES; JEFF LARSON; and DAN McCASKY, Defendants. Judge William J. Martínez
ORDER ADOPTING AS MODIFIED MAY 13, 2019
RECOMMENDATION OF MAGISTRATE JUDGE GRANTING DEFENDANTS'
MOTION TO DISMISS
William J. Martínez, United States District Judge
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).
reasons set forth below, the Recommendation is adopted as
modified, St. George's Objection is overruled, and
Defendants' Motion to Dismiss is granted.
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.
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).
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).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).
events that give rise to this lawsuit began on July 31, 2016.
(¶ 1.) 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.)
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.)
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. (¶¶
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.)
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.)
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.)
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.)
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
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.)
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.)
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.)
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.)
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.)
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.)
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. (ECF No. 14-1; see
also ECF No. 62 at 5; ECF No. 54 at 1-2.)
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.)
EXCESSIVE FORCE CLAIMS
Excessive Force Claim Against Agent Trimmer
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.)
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.
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  the severity of the crime at
issue,  whether the suspect poses an immediate threat to
the safety of the officers or others, and  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”).
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)).
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.
The First Graham Factor
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
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.)
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.
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.
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
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.)
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
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).
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.
The Second Graham Factor
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, ...