United States District Court, D. Colorado
ORDER REGARDING MUNICIPAL LIABILITY DISCOVERY AND
William J. Martinez, United States District Judge.
Robert Motyka, Jr. (“Motyka”), a Denver police
officer, shot Plaintiff Michael Valdez (“Valdez”)
at least once, and perhaps twice, at the end of a dramatic
car chase on the morning of January 16, 2013. Valdez claims
that Motyka opened fire after all danger had passed, in
violation of the Fourth Amendment. Familiarity with the
parties' respective versions of events, recounted
elsewhere (e.g., ECF No. 152), is presumed.
action was filed in January 2015 and was presided over by
Senior U.S. District Judge Richard P. Matsch until his death
in May 2019. It was reassigned to the undersigned in
November 26, 2019, the Court held a status conference
regarding the number of days reasonably required to try this
case (“Status Conference”). (See ECF No.
157.) There was significant discussion at the Status
Conference, and in briefing leading up to it, regarding
Valdez's theories for holding Denver liable under the
framework established in Monell v. Department of Social
Services, 436 U.S. 658 (1978), often known as
“municipal liability.” (See ECF Nos.
154-56.) The Court explained at the Status Conference that it
was strongly considering revisiting some of Judge
Matsch's rulings regarding municipal liability, and that
a written order would issue in that regard.
that order. For the reasons explained below, the Court finds
that Valdez should have been allowed to complete his
municipal liability discovery through a Rule 30(b)(6)
deposition of Denver. Accordingly, the Court will allow such
a deposition to go forward, subject to certain constraints,
and then Denver will receive a second opportunity to move for
summary judgment against Valdez's municipal liability
theories, if appropriate.
The Motion to Compel
March 2018, Valdez moved to compel a Rule 30(b)(6) deposition
of Denver on topics related to his municipal liability
theories, including Denver's training, policies, and
procedures. (ECF No. 63 at 4-5, 14-17; ECF No. 63-3.) Judge
Matsch held a hearing in May 2018 to resolve this and other
pending motions. (See ECF No. 79.) On the topic of
the Rule 30(b)(6) deposition, Judge Matsch had the following
exchange with counsel for Denver:
Q. But there was an investigation [of the shooting] as there
would be in any shooting?
A. That's right, there were two. One by the Denver
DA's office in conjunction with our homicide unit, and
then after that it went to our use-of-force board for
determination of whether or not it was within or without
policy. It was found to be within policy with respect to the
Q. All right. So if it's within policy and there is a
constitutional violation, the City is going to be liable, and
I don't think we have to go beyond that.
(ECF No. 89 at 14-15.) Judge Matsch then switched to another
topic, but soon followed up on the foregoing exchange, again
addressing counsel for Denver:
Q. . . . you know, I'm saying the 30(b)(6)-I'm not
sure what-what we need-what is needed, particularly, what I
just heard that the policy, the training is what it is and
that he-all of the officers acted pursuant to legitimate-
established policy. That's your statement, correct?
A. Yes, Your Honor. They were found all acti[ng] within
Q. Yeah. So it's going to be-the City is going to liable
if they're liable.
(Id. at 15-16.) Counsel for Valdez then began trying
to persuade Judge Matsch to at least allow a deposition about
a particular training method, but Judge Matsch refused:
Well, what difference does it make if there could be other
kinds of training? The City is taking responsibility for what
has been done here, so it seems to be end of problem.
Alternative training, what difference does it make? So I
don't see any need for this 30(b)(6) stuff.
Let's get to trial. . . .
(Id. at 17.)
reasons that will be discussed below, in the Court's view
Judge Matsch's statement that Denver would be liable if
an individual defendant is liable is incorrect, at least
without certain important qualifications. At the hearing,
however, Denver's counsel never sought to correct or
qualify Judge Matsch's repeated and unqualified
statements to this effect.
Summary Judgment Proceedings
moved for summary judgment in May 2018, arguing (among other
things) that it deserved summary judgment on municipal
liability because Valdez lacked necessary evidence. (ECF No.
82 at 32-42.) Valdez responded that Denver's municipal
liability arguments should be denied on the basis of judicial
admission or judicial estoppel arising from the
motion-to-compel hearing, because Denver allowed Judge Matsch
to deny the Rule 30(b)(6) deposition under the assumption
that Denver's liability would automatically flow from the
individual officers' liability, if any. (ECF No. 92 at
69-75.) Valdez further responded, on the merits, that it has
evidence of “ratification” (apparently referring
to the after-the-fact finding that the officers acted
according to policy) and failure to train (because
“Denver clearly failed to adequately train Defendants
not to shoot an unarmed, surrendering man, under [the]
circumstances of this case”). (Id. at 75-80.)
reply, Denver argued that Judge Matsch's reasoning at the
motion-to-compel hearing was flawed:
Here, Denver's Use of Force Board reviewed the incident
and, based upon the information that was gathered during the
homicide investigation, found the officers' conduct to be
within policy. Thus, to the extent that a jury were to find
the officers' conduct as considered by the Use of Force
Board to be unconstitutional, municipal liability could be
imposed. Importantly, however, Denver did not approve of the
officers' conduct as Plaintiff alleges, i.e., that Sgt.
Motyka intentionally shot him when he was lying on the ground
not posing any threat to anyone. Thus, to the extent that
Plaintiff could prevail on his version of events . . . a
finding of municipal liability based upon ratification would
not be warranted, as the record is devoid of any evidence to
demonstrate that any final decisionmaker ratified the
unconstitutional actions Plaintiff claims the officers
engaged in along with the basis for such actions.
(ECF No. 104 at 48-49 (citation omitted).) This argument is
correct, for reasons the Court will explain below. But
correct or not, what of the fact that Denver allowed Judge
Matsch to persist in incorrect reasoning to reach a result in
Denver's favor, i.e., denying the Rule 30(b)(6)
deposition? On that, Denver feebly argued that Judge
Matsch's reasoning had no binding effect because he was
only making a decision about relevance and proportionality of
discovery. (Id. at 50-53.)
Matsch resolved Denver's summary judgment motion in April
2019. (ECF No. 124.) On municipal liability, he began by
There is no evidence concerning the DPD training policy with
respect to police responding to a community threat by
pursuing a vehicle whose occupants are firing at the police
which ends with a crash and the occupants coming out of the
passenger door with no shooting. The plaintiff's counsel
sought to obtain a Rule 30(b)(6) deposition to discover DPD
training. This Court denied that motion at a conference
during which the Court commented that if the defendants are
liable then Denver is liable. That was an unfortunate comment
which the plaintiff's counsel understood to be a ruling
on municipal liability
It was not a ...