Jurado v. Tritschler

          ORDER

          RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE

         This case arises from an officer-related shooting of a passenger in a vehicle. This matter is now before the Court on Defendant Tritschler's motion for summary judgment (ECF No. 53) as to Plaintiff's claim for excessive force in violation of the Fourth Amendment. The motion is fully brief. Upon consideration of the motion and related briefing, and the applicable law, and being otherwise fully advised, the Court finds and orders as follows.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The following is gleaned from the supporting papers submitted by the parties, to which no party has objected. Accordingly, the Court will rely on the papers submitted. See Fed. R. Civ. P. 56(c).

         On November 20, 2014, sometime after about 10:30 p.m., Defendant Tritschler and five other officers from the Denver Police Department (collectively, “Denver Police”) responded to Aurora Police requesting through police dispatch immediate cover to stop a vehicle that was eluding them. The five other officers are the other individually named Defendants in this case. Defendant Tritschler and his partner, Officer McConnell, were in one police vehicle. Officers Sandoval and DiManna were in a second police vehicle, while Officers Hassman and Kay were in a third police vehicle. The eluding vehicle was a Ford F-150 driven by Joel Jurado, Plaintiff's brother, in which Plaintiff was the front seat passenger.

         Ultimately, Denver Police followed the F-150 into an industrial tractor trailer parking lot in Commerce City. The driver drove the F-150 between two parked tractor trailers and stopped. The F-150 was blocked from going forward by the parking lot fence, while Officers Sandoval and DiManna's vehicle (“Vehicle 2”) was parked about 10 feet behind the F-150, also between the two parked tractor trailers. Officers Kay and Hassman parked their vehicle behind Vehicle 2. Defendant Tritschler and his partner, along with Officers DiManna and Sandoval, exited their vehicles and immediately started to yell to Plaintiff and the driver to “put it in park, ” “stop the vehicle, ” “stop moving, ” and “show us your hands.” All officers had their weapons drawn when they approached the F-150 giving commands. Neither Plaintiff nor the driver, however, were complying with the commands so Defendant Tritschler used a trailer adjacent to the F-150 as cover.

         There is lighting in the parking lot but not in the area where the F-150 had stopped. Nonetheless, the F-150 was lit due to headlights from Defendant Tritschler's vehicle and lights from one or more of the other Denver Police vehicles. Defendant Tritschler and Officer Kay approached the passenger side of the F-150; the passenger door was locked so Officer Kay broke out the passenger window with a baton, with Defendant Tritschler providing cover. Plaintiff screamed when the window was broken. With the window broken, Defendant Tritschler could see better into the F-150 but not entirely because there was no ambient light there; he had no idea if the driver and Plaintiff were armed. The officers continued to yell commands and Officer Tritschler moved back to the cover of the trailer.

         Meanwhile, the driver looked around, put the car in drive, tried to move it, and ultimately gunned the F-150 in reverse towards Vehicle 2. At that time, Officers Sandoval and Hassman were standing between the rear of the F-150 and Vehicle 2, and Officer DiManna was standing at the front-left side of Vehicle 2. When the F-150 went into reverse, Officer DiManna dove out of the way and Offices Sandoval and Hassman ran out of the way. The officers could hear gunshots. The rear of the F-150 hit and moved Vehicle 2.^[1]

         The gunshots came from Defendant Tritschler. During this time, Defendant Tritschler was aware there were other officers behind the F-150 when the driver gunned it in reverse. Because of the F-150's movement, sometimes Plaintiff was in Defendant Tritschler's field of vision and sometimes he was not. When the F-150 gunned in reverse, Defendant Tritschler got a clearer view of the driver and fired three shots at the driver. When the F-150 stopped, some officers pulled Plaintiff from the F-150 and handcuffed him, taking him into custody. Other officers took the driver into custody.

         Plaintiff and the driver were wounded from Defendant Tritschler's gunshots. Plaintiff thereafter filed this 42 U.S.C. § 1983 action alleging Defendants used excessive force in violation of the Fourth Amendment. Defendants filed a Motion to Dismiss which the Court granted in part and denied in part. The Court granted the Motion to Dismiss as to all Defendants except Defendant Tritschler. As to him, the Court converted the Motion to Dismiss to a motion for summary judgment (“MSJ”) and directed briefing. Plaintiff filed a response and Defendant Tritschler filed a reply. The matter is ripe for resolution.

         II. LEGAL STANDARD

         Summary judgment is appropriate only if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Gutteridge v. Oklahoma, 878 F.3d 1233, 1238 (10th Cir. 2018). Applying this standard requires viewing the facts in the light most favorable to the nonmoving party and resolving all factual disputes and reasonable inferences in his favor. Cillo v. City of Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013). However, “[t]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Scott v. Harris, 550 U.S. 372, 380 (2007). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000). A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable jury could return a verdict for either party. Anderson, 477 U.S. at 248.

         Qualified immunity shields individual defendants named in § 1983 actions unless their conduct was unreasonable in light of clearly established law. Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014). “[W]hen a defendant asserts qualified immunity, the plaintiff carries a two-part burden to show: (1) that the defendant's actions violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant's unlawful conduct.” Id. (quotation omitted). The district court may address the steps in either order. Carabajal v. City of Cheyenne, Wy., 847 F.3d 1203, 1208 (10th Cir. 2017) (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)). If the plaintiff fails to satisfy either part of his burden, the court must grant qualified immunity. Id.

         III. ...