Free Brief in Opposition to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-00701 LPB-MJW NICOLAS MEDRANO, Plaintiff, v. KARL SCHERCK, Defendant.

P A N IFSME R N U I O P ST O TO L I TF ' MO A D M N P O I I N MOTION FOR SUMMARY JUDGMENT Plaintiff, Nicolas Medrano, for his response to the Motion for Summary Judgment filed by Defendant, states as follows: STANDARD OF REVIEW This Court has repeatedly set forth the general standard of review for motions for summary judgment: A party seeking summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, interrogatories, and admissions on file together with affidavits, if any, which it believes demonstrate the absence of genuine issues for trial. (citation omitted). Once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried. (citations omitted). These specific

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f tm yb so n"yayo t k d o ei n a m t isie i R l a s a e hw b n fh i s f v etr a r llt n u c e n d i y ea s d e 5( ,xeth p ai shm e e.( ti o ie) 6c ecpt l d g t sl s cao m td. ) e e n e v " it n t Shamrock Taxi of Fort Collins, Inc. v. North American Specialty Insurance Co., 2006 WL 722172, *3 (D. Colo. 2006). T ignr s na ap e t t bl o D f dn s t n H w vroe ot n h ee lt dr plso h u f e nat Mo o. o ee n pro s a a d i e k e ' i , i o t t t nses u m r j g et ae o D f dn s s ro o qaf immunity. fh Mo o ek sm a u m n bsd n e nat as t n f uli a i y d e ' ei ied When qualified immunity is asserted as a defense, the Court must ask (1) whether taken in the l h m s f oal t t p i i t f t aee so t of e scnut i a da i t ot a r e o h ln f h a s lgd hw h fcr odc v le g v b e a tf e c l e i ' ot constitutional right, and if so, (2) whether the right was clearly established. Blossom v. Yarbrough, 429 F.3d 963, 967 (10th Cir. 2005); Jackson v. Steinhour, 2005 WL 2293634 (D. Colo. 2005) . When a defendant asserts a qualified immunity defense, the burden shifts to the plaintiff to first establish that t df dn s cos i a d cntu oao s t oy i t h e nat at n v le a ost i l rtu r r h Medina v. e e ' i ot itn at g. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001). However, when the record shows an unresolved dispute of historical fact relevant to this immunity analysis, a motion for summary judgment based on qualified immunity should be denied. Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002); Jackson, supra; Norris v. City of Aurora, 2005 WL 1768758 *3 (D. Colo. 2005). Consequently, a summary judgment motion may not be granted on any excessive force claim under §1983 for which any genuine issue of material fact remains -r a l s f ht r e re ow e e gds h the potential grant would arise from qualified immunity or from a showing that the officer merely had not committed a constitutional violation. Olsen, 312 F.2d. at 1315.

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FACTUAL BACKGROUND In considering a motion for summary judgment based on the defense of qualified i m n yt t ehl qet n s " ae i t l h m sf oalt t pr asrn t m ui , eh so uso i T kn n h i t ota r eo h a y s t g h t h r d i : eg v b e t ei e injury, do the facts allee so t of e s odcv le a ost i ar h " gd hw h fcr cnut i a d cntu o li t Saucier v. e i ' ot itn g ? Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Accordingly, where the ei ne s ot vr d t C ut ant u m tayacp t acsdof e s e ion of v ec icn oe e,h orcno at acl ceth cue fcr vr d r t e o i l e i ' s eet btnt dm sacp " e at l a i m sf oal t t i ue pr . vn , u i e ut cett f u m tx ota r e o h n r a y Carr v. s sa h ca r v b " e j d t Castle, 337 F.3d 1221, 1226-27 (10th Cir. 2003). Using that standard, the jury in this case could find the following facts: On September 22, 2003, the Defendant was employed as a police officer for the City of Westminster, Colorado. (Ex. A, p. 4, l. 1-4). However, on that date, Defendant was off duty, and was at home at 1451 South Lincoln St., Denver, CO. (Id., p. 4, l. 13-22). He was wearing a blue t-shirt with a seal-t ee b m cn i n t w rs"o c O f e " A oet sa w s y m l otn g h od P le fcr p e ai e i i . bv h el a e e b znd"r e a O dr f ai Fr " n bl w s nc bd" oa 6. A cp o m l oe Fa r l re o R p i , ad e w a i r e L cl 9 a tn d e o si " at n i bna t s m l r d" u bae adcuaea hl i r a cueor us o' eet h e b m e O r r r n or h i e a vy g r e n e r as u gn dnt e d gd sot l k ad rn h tk a hr.(xC p3n11 ho b ns n a i ti s r a "E . ,.,.) a e g sc e d O t t a , e nat etoh s p o e shm a 10 S u Lno S.n n h dt D f dn w n t i t m t r o e t 42 ot i l ti a e e s e h' h cn Denver, to mow her lawn. (Ex. A, p. 5, l. 2-1) A h apoce h s p o e s o e h 1. s e prahd i t m t r hm , e s e h' noticed a Hispanic male emerge from near the house. (Ex. B, p. 4, l. 25 ­p. 6, l. 13). The male

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T e ec p o o t si icn i di t D ne Dsi At nys fc R pr am tda t ha n h dsr t n fh h ts otn n h evr ir t t re' O f e eot d ie th er g ii e r ae e tc o i , t e i before the Court on September 26, 2005. See Exhibit A, p. 18, l. 15-25. Defendant has stipulated to the authenticity of this document and, for the purpose of this Motion, that the jury could find that this description is accurate. See attached Exhibit F.

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did not make any threatening gestures or remarks; he instead walked by the Defendant and nodded to him in greeting. (Ex. A, p. 11, l. 15 ­ 12, l. 15). p. WhnD f dn r ce t s eo h s p o e shm , et ndt w t t e e nat e hd h i f i t m t r o e h u e o a h h e a e d s e h' r c e departing male, who was continuing to walk south down the sidewalk. (Id., p. 12, l. 18-22). D f dn cn ne a ud h nr s e f is p o e s o eo h bcyr.(Ex. A, p. e natot ud r n t ot i o h t m t r hm t t aka e i o e h d se h' e d 13, l. 2-13). He displayed no objective concern over any danger posed by the man he had earlier seen. (Id.). D f dn t nr undt t f n o h s p o e s o e (x A p 1,. 4 e nath e re o h r t f i t m t r hm .E . , . 3 l1-19). e e t e o s e h' A cri t D f dn set oy a h left his home, he observed the Hispanic male on the cod g o e nat t i n,s e n e ' sm front porch of 1434 S. Lincoln St. (Id., p. 16, l. 14-25). Defendant did not approach the man, or gesture or comment to him in any way. (Id., p. 17, l. 1-5). Defendant continued on to his home at 1451 S. Lincoln St., where he retrieved his cell phone and a handgun. (Id., p. 14, l. 2-8). As he walked out of the house, Defendant called 911 on his cell phone. (Ex. A, p. 14, l. 22-25). The purpose of the call was so that uniformed officers would be dispatched to the scene. (Id., p. 18, l. 5-8). When he exited his home, the Defendant did not see the Hispanic male. (Id., p. 19, l. 7-9). Defendant continued down the west side of the street. (Id., pp. 19, l. 22 ­ l. 8). As he came to 20, a point directly across the street from 1434 S. Lincoln St., Defendant thought that the male might see him staring at that house and making a call. (Ex. B, p. 8, l. 6-17). To avoid detection, Defendant entered the yard of the home across from 1434 S. Lincoln St., and stationed himself behind a wall and some foliage, to observe the scene until Denver police arrived. (Id.).

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A cri t D f dn sa rte etad et oyh t n a t Hsaim l cod g o e nat le s t n n t i n, eh sw h i n a n e ' t am s sm e e p c e walking from the rear of 1434 S. Lincoln St. in a southeasterly direction away from the Defendant toward the alley. (Ex. A, p. 22, l. 7-13). The man was walking, and had nothing in his hands. (Id., p. 14-17).2 Defendant then crossed the street, and entered the backyard at 1434 S. Lincoln St. (Id., pp. 22, l. 23 ­p. 24, l. 2). Defendant was quite certain that the residence at that address was unoccupied. (Id., p. 24, l. 6-17). According to Defendant, he noticed a door to the detached garage in the rear of 1434 S. Lincoln St partially open, about 12 to 18 inches. (Ex. A, pp. 23, l. 9 ­p. 24, l. 1). Defendant testified that he opened the door a little bit further, and saw the Hispanic male. (Ex. A, p. 25, l. 13-1) A cri t D f dn s te etw e h oee t do t t gr eh swt 5. cod g o e nat s t n hn e pnd h oro h a g, e a h n e ' am , e e a e Hispanic male standing about ten feet away from him, facing the south wall of the garage. (Ex. B, p. 10, l. 5-15; see also drawing attached to Ex. C). Defendant states that the Hispanic male had a white piece of board in his right hand. (Ex. B, p. 10, l. 5-15). Police later found at the see " od i es lba ,pi e w i. 1" y 2 w oe s n a aahd o h cn a w o p ktt e or " a t h e A 2 b 1" odn i w s tce t t c y d nd t g t e
3 ba , h h a 3"ogwt1" x ni bl t s n(xC p4. or w i w s 1 l , i 9 et d g e w h i .E . ,.) d c n h e n o eg

According to an Affidavit prepared by the Denver Police Department,4 Defendant told one of the officers responding to the scene that he identified himself as a police officer and held
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Though Defendant later testified to these facts, the transcript of the 911 call, made contemporaneously, does not mention these facts. 3 T e ec p o o t s nicn i di t D ne Dsi At nys fc R pr am tda t ha n h dsr t n fh i s otn n h evr ir t t re' O f e eot d ie th er g ii e g ae e tc o i , t e i before the Court on September 26, 2005. See Exhibit A, p. 18, l. 15-25. Defendant has stipulated to the authenticity of this document and, for the purpose of this Motion, that the jury could find that this description is accurate. See attached Exhibit F.

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the suspect a gunpoint ordering the suspect to drop his board. (Ex. D, p. 1) According to his original statements, the Hispanic male did not comply with his orders and instead advanced toward him with the board still in his hand. (Id.). There is no mention in that statement that the Hispanic male made any move with his hand toward his pocket, or that Defendant feared that the Hispanic male had a knife or other concealed weapon. (Id.; Ex. C, p. 11, n. 9). In a subsequent statement made the day after the shooting in the presence of his attorney, the Defendant stated that, when he looked in the garage, he saw the Hispanic male standing, facing the south wall with the board in his right hand. (Ex. B, p. 10, l. 5-22; pp. 45, l. 19 -4,. 6l 1) A r a di t s te ett Hsai m l "qa dof a D f dn ( p. 26, l. 82. se t n h s t n h i n a sur f t e natid., le i am , e p c e e " e 11), raised the board to threaten him (id., p. 30, l. 19-15), threw the board at him, and took one or two steps toward him. (Id., p. 28, l. 20 ­p. 29, l. 12). Defendant also stated that the Hispanic male put his left hand into his coat pocket. (Id., p. 10, l. 17-22). According to this statement by Defendant, he thought the Hispanic male had a knife or a gun. (Id., l. 24-27). Defendant stated that he then drew his gun from his waistband and fired two or three shots to protect himself. (Id., p. 28, l. 20 ­ 29, l. 12). According to Defendant, the Hispanic male was five to six feet away p. when Defendant fired. (Id., p. 31, l. 9-12) However, the chain of events reflected on the audiotape from the 911 call is quite different. The transcript of the 911 call shows that Defendant reported to the operator that he believed that a man was trying to break into the house at 1434 S. Lincoln. St. The operator had Defendant provide a description of the man, and asked where the man was at that time.

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Defendant has stated that he will object to the admissibility of this Affidavit. Plaintiff accordingly has filed, contemporaneous with this Response, a motion pursuant to F.R.C.P. 56(f) for a continuance to conduct discovery sufficient to adduce these facts.

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D f dn r ld " dnt nwih gtn r o H m gt en h bc o t hue T e e nate i :I o'ko f e o i o nt e i b i t ak fh os. h e pe . h e e " oe t akdD f dn s a eadgt or pne Is a, nt ad t eD f dn s pr o se e nat nm ,n o n e os. nt d o h ui a , e nat ar e ' s e e op e ' vi i ha sy g" o P leO f e "(x C p 5. Am s i m d tya e t t o e s er ai Y ! o c fcr E . , . ) l ot m eie f r h c d n i i ! al t a comment, Defendant fired three shots in rapid succession. (Id., p. 5, n. 4 and 5). After the shots a fe, e nat vi i ha m k gt cm et S o m yu hns ( 5 He r i d D f dn s o e s er ai h o m n "hw e or ad. Id.) e r e ' c d n e " never showed the male a badge. (Ex. B, p. 33, l. 4-8). The three bullets struck Sergio Medrano on the left side. During the autopsy, the wounds were described as follows (Ex. E, pp. 5-7): One bullet entered the front of left shoulder, traveled a path generally up to down, and exited inside of the left arm. The bullet then entered the chest area near the left armpit. and passed into the left lung. Another bullet entered the left biceps area, exited, and reentered in the left armpit area. Again, the path was generally up to down. A third bullet struck the left knee, and generally traveled front to back. Within one to two minutes, uniformed Denver police officers arrived at the scene. (Ex. B, p. 12, l. 1-7). According to Defendant, it was never his intent to arrest the Hispanic male; he merely wanted to be a witness for the Denver police. (Id., p. 22, l. 23-25; p. 33, l. 4-11).

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The description of the cn n o t s ui aei cn i di t D ne Dsi At nys fc R pr ot t fh ad t s otn n h evr ir t t re' O f e eot es i op ae e tc o i , admitted at the hearing before the Court on September 26, 2005. See Exhibit A, p. 18, l. 15-25. Notwithstanding his failure to object to the admission of this document at that hearing for precisely this purpose, Defendant has stated that he will object to the admission of the description of the audiotape contained in the Report. Plaintiff accordingly has filed, contemporaneous with this Response, a motion pursuant to F.R.C.P. 56(f) for a continuance to conduct discovery sufficient to adduce these facts.

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ARGUMENT I. DEFENDANT IS NOT ENTITLED TO SUMMARY JUDGMENT BASED ON THE DEFENSE OF QUALIFIED IMMUNITY. A. The law regarding the use of excessive, deadly force was clearly established at the time of the shooting.

The present action arises from allegations that, on September 22, 2003, Defendant shot and kl Pa tf snSr o dao T e it m ne C m ln( 2 aee t tt ue f ie lnfso, e iMer . h Fr A edd o p i ¶ )lgsh " e s o ld ii' g n s at 1 l a h dal fr o t dcdn w sur snb adtaywt u j ti tn T u, n ed oc n h eeet a ne oal n o l i ot u ic i . hs oe y e e a e tl h sfao " question for the Court to determine is whether the law governing excessive, deadly force cases was clearly established as of September 22, 2003. T i qe i w s nw r b t Tn Cr is eio i Mick v. Brewer, 76 F.3d h uso a as e d y h et iu' dc i n s tn e e h ct sn 1127, 1136 (10th Cir. 199)w e t C u hl t t t l gvri ecsv fr css 6, hr h or e h " e a oe n xes e oc ae e e t d a h w ng i e w s l r et lhd n ue 819. T idt m nt n a bsd n h S pe e ors a c ay s b se o Jn 1,92 h e r i i w s ae o t ur C ut el ai " s e ao e m ' decision in Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989), which directed lower courts to analyze constitutional claims of excessive force by ap i F ut A ed ett drs f b cv r snb ns " oa w m k ep c . pl n or m nm n s na o oj t e e oal es T dy e ae xli . yg h a d ei a e : it . that all claims that law enforcement officers have used excessive force -dal o nt i t edy r o - n h e cus o a a eti et a r s p o o e ` i r o af eci nsol b aa zd or f n r s n sgt y t , r t r s z e f r iz hu e nl e e r , v i o o h eu ' e te d y udrh F utA ed etn i ` aoal ess na ." net or m nm nad t r snb ns t dr . . e h se e ' a d. . Accordingly, there is no question that, at the time of this incident, the law concerning when the use of deadly force is appropriate was clearly established. There was clear and ample Supreme Court and Tenth Circuit case law which predates the incident by several years. Carr, supra, 337 F.3d at 1227.

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B.

Taken in the light most favorable to the Plaintiff, the facts show that the D f d n'cn ut iae a ostt nli t e n at od cv l d cntui ar h. e s ot i o g 1. U dr rvi gl ,h D f dn'cn uts jd e bsdu o n e peai a te e n a t o d c ia u gd ae p n l n w e s w e e hs co s ee"bet e rao a l i lh o t facts ht r i at n w r o j i l esn b " n i t fhe h i cv y e g and circumstances confronting him.

The issue of when an officer can use deadly force to apprehend an unarmed fleeing suspect was decided nearly two decades ago in Tennessee v. Garner, 471 U.S. 1, 11-12, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985): Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.... A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. Thus, in Graham,h S pe eC ut te t t t ` aoal es i u yi a t ur e m or s t h " e r snb ns n i n n ad a h e e ' qr excessive force case is an objective one: the quet ni w e e t of e 'at n a so s ht r h fcr cos r i h e i s i e `b cvl r snb 'n i t fh f tad i u s ne cnrn n t m wt u r a oj t e e oal i l h o t a s n c cm t cs of t g h , i ote r ei y a e g e c r a oi e h gd t t i udr i i et r o vt n 40US a 37 U dr r ai T n Cr i o h r ne y g n n o m t ao. 9 .. t 9. ne pe in et i u e ln t i i " v lg h ct precedent, this Court sol ass t r snb ns o a of e scnut" o t hu s s h e oal es f n fcr odc f m h d e e a e i ' r e pr et e f r snb of e o t see ako l g g hth of e m y e fr d e pcv o a e oal fcr n h cn, cnwe i t t fcr a b " c s i a e i e " dn a e i oe to make split-scn j g et i cr i d f u c cm t cs Medina v. Cram, 252 F.3d eod u m n " n e a ii l i u s ne. d s tn fc t r a 1124, 1131 (10th Cir. 2001) (quoting Graham, 490 U.S. at 396-397, 109 S.Ct. 1865). This r snb ns s na r u e t cut ocni rf t si l i t aee c m ' e oal es t dr e i s h or t os e a o n u n h lgd r e a e a d qr e d cr cdg e l i s severity, the degree of potential threat that the suspect poses to an ofcr sf y n t o e ' f e s a t ad o t r i ' e hs sf yad h sset e ottr i o eae r s Medina, 252 F.3d at 1131. Because the a t n t upc s f r o e s rvd a et e, e ' f s st r . r snb ns i u yoe aswt t qaf di m n yaa s , aqaf di m n y e oal es n i vr p i h uli m ui nl i " uli m ui a e qr l h e ie t ys ie t defense [is] of less value when r sdi df s o a ecs v fr c i . Id. (citing a e n e ne f n xes e oc lm" i e i e a

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Quezada v. County of Bernalillo, 944 F.2d 710, 718 (10th Cir. 1991). Whether an officer acted r snb i ui dal fr i"ev y at eedn " e oal n s g ed oc s hai f dpnet Olsen, 312 F.3d at 1314. a y n y e l c . 2. D f d n'actions were not objectively reasonable in light of the facts e n at e s and circumstances confronting him on the day of the shooting.

Here, viewing the evidence in the light most favorable to the Plaintiff, a jury could find t tt D f dn s at n w r ntobjectively reasonable in light of the facts and h h e nat cos e o a e e ' i e circumstances confronting him on September 22, 2003. The evidence cited above reflects that Defendant, an off-dt ple fcrosre Sri Mer oi h s p o e s a i t u o c of e be d e o da n i t m t r yr n h y i i , v g n se h' d e middle of the day. When the Defendant approached, Mr. Medrano left, without running or taking any evasive action. Mr. Medrano had no visible weapon, and made no threats of any type. On the contrary, Mr. Medrano nodded to Defendant as he passed. No objectively reasonable police officer could view Mr. Medrano presenting an immediate threat of physical harm to the D f dno o e . nedt D f dnd ntvn hc o h s p o e s hs asf y e natr t r I e, e e nati oee cek n i t m t r pyi la t e hs d h e d se h' c e; he instead ran home to get his gun. The evidence also reflects that Defendant later observed Mr. Medrano walking away from the residence at 1434 S. Lincoln St. and toward the alley, with nothing in his hands. Defendant was quite certain that the residence was unoccupied. Viewed objectively, Defendant had no reason to see Mr. Medrano -w oapa dua e adw s a i away from the residence h per nr d n a w l n e m kg in any event -a peet g n s r n n a immediate threat of physical harm to any occupants. s i Nor did Defendant have any reason to fear imminent, personal physical harm. He was concealed behind a brick wall on the opposite side of the street, as Mr. Medrano walked away from him. At that precise time, Defendant was on the phone to the Denver police department, and understood that uniformed officers would be responding. Indeed, according to Defendant, 10

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he had no intention of arresting Mr. Medrano; he merely wanted to be a witness for the Denver police. 3. It was not objectively reasonable, under the facts and circumstances at the time, for the Defendant to enter the garage and shoot Mr. Medrano without meaningful warning.

In his Memorandum Brief, Defendant ignores these circumstances, and focuses on the events in and near the garage at the time of the shooting. At the outset, even accepting

D f dn s e i o eet t s i ao at most involved a prowler who had made no threats e nat vro f vn , isut n e ' sn sh t i of physical harm to any person. Denver police had been notified, and Defendant understood that they were responding momentarily. According to Defendant, he went to the backyard of the residence with no intention of arresting Mr. Medrano, but simply to serve as a witness for the Denver police. Defendant had no reason to pursue or confront Mr. Medrano, and certainly no reason to enter a building to search for him. MoevrD f dn s r et e i o t ee in the garage is seriously disputed. r e e nat pe n vro fh vnts o , e ' s sn e For example, the Affidavit for Search Warrant6 submitted in the criminal investigation indictaed that Defendant did not tell that the officer at the scene that Mr. Medrano made any move with his hand toward his pocket, or that Defendant feared that he had a knife or other concealed weapon. (Id.) Indeed, as pointed out by the Denver District Attorney, the failure of responding officers to check Mr. Medrano for a weapon strongly suggests that the Defendant did not tell them that he suspected that Mr. Medrano had a weapon. (Ex. C, p. 11, n. 9). Moreover, Defendant stated that, when he initially observed Mr. Medrano in the garage, he was standing, facing the south wall with the sign in his right hand. In such a position, Mr.

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Supra, n. 4.

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Medrano would have been turned 90º from the Defendant, with his right arm closest to Defendant. See da i aahdt E . . Y th C rnr at s r ote ett t . r n tce o x C w g t e t ooe s u py e rr l sh Mr e ' o p fc a Medrano was shot on his left side of his body, the side that Defendant now claims was facing away from him. In addition, the path of the bullets as shown on the autopsy indicates that Mr. Medrano was shot from the left side and above -f tt tus n ay ot d t e nat a sh sbt tl cn ai D f dn s c a a il r c e ' s t ett t . dao a "qa d p ad dac g i cyo a D f dn te n h MrMer w s sur u" n avni d et t r e nat am s a n e n r l w d e . Perhaps most important, the audiotape of the 911 call suggests a far differ t f t l e "ca n au m tx t npeet pi e b D f dn T e ui ae e ett tpi t sot gMr a i h r n y a t y e nat h ad t r l sh , r ro ho n r" a s l nd e . o p fc a o i . Medrano, Defendant made no meaningful effort to identify himself as a police officer, to give Mr. Medrano any verbal warning or command, or order Mr. Medrano to surrender or take any o e at n Is a,ht ui ae e ett t e nat i p si " o P leO f e " t r co. nt d t ad t r l s h D f dn s l a Y ! o c fcr h i e a o p fc a e m y d i i ! and almost instantaneously thereafter fired three shots in rapid succession. Only after the shots were fired and Mr. Medr o a m r l w uddd D f dn sy S o m yu hns a w s otl one,i e nata "hw e or ad. n ay d e " T eeat t e t e e dm nttt t e natpndh gr e oryld Yo! hs f s a no t r e osa h D f dnoee t a g do,ee " c, k g h , re a e e a l P le fcr adi m d tyso MrMer o T iei ne l dm nt t t t . o c O f e " n m eie ht . da . h v ec a o e osa sh Mr i i ! al n s d s re a Medr ow s o "qa du" n avni t a D f dn btnt dw sundt t a a nt sur p ad dac g o r e nat u i e a t e o h n e n w d e , sa r e right, away from him. The supposed weapon brandished by Mr. Medrano -a m ls no a sa i n lg picket board -objectively posed no threat of physical harm to Defendant, an armed police officer. Even if the jury believed that Mr. Medrano was holding and threatening Defendant with the sign at the time of the shooting, all Defendant had to do was step back from the doorway and order Mr. Medrano to drop the sign. It was not objectively reasonable to instead fire three shots ir isces n n MrMer os oy n a d ucs o i o . da 'bd. p i t n

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4.

D f d n'c i ta h f rdta MrMern hd w a o inot e n at lm h t ee e h t . da o a a ep n s e sa a credible, let alone objectively reasonable.

T e t yo MrMer os upsdyptn h l t adi h pce t r r v a h s r f . da ' spoel u i i e hn n i okto e i e o n tg s f s te gun or a knife is not credible. In the first place, as the audiotape reflects, there simply was not sufficient time between the time that Defendant first observed Mr. Medrano and when he shot him for (1) Defendant to observe Mr. Medrano standing, facing the south wall, (b) Mr. Medrano to turn and reach into his pocket, and (c) Defendant to pull his weapon from his waistband and shoot. Moreover, contrary to logic and obvious best practices, Defendant did not mention this supposed weapon to the 911 operator or the officers who responded to the scene. F r e ee acp n D f dn sd pt t t oyt t . dao put his left ut r vn cet g e nat i u d e i n h MrMer h, i e ' s e sm a n hn i o ipce t ue f ed fr w s o oj t e r snb .Pai oe hn ad n h okt h s o dal oc a nt b cvl e oal l n n' ad t s ,e y e ei y a e cg s in his pocket is not sufficient cause to be killed. Defendant had no objective reason to believe that Mr. Medrano had a weapon in his pocket; Mr. Medrano had not displayed any weapon (or even any aggressive behavior) during any of the prior times that Defendant apparently observed him. If he truly was concerned about a weapon, Defendant could have drawn his own weapon, and ordered Mr. Medrano to show his hands or take some other action. At a minimum

D f dn cu hv a ae MrMer os epne hnh i n f dh sla a o c e nat ol ae w id . da ' r os w e e d ti i e s ple e d t n s e ie m f i officer. Instead, he simply shot Mr. Medrano three times in rapid succession. It is simply not objectively reasonable for an officer to shoot a person without warning, even a prowler, because he placed his hand in a coat pocket. Fnl ,h j ywl b al t j g w e e D f dn sat n w r oj t e i l t u ay e r i e b o u e ht r e nat cos e b cvl l e d h e ' i e ei y reasonable in light of his prior fatal shooting of another unarmed person five months earlier,

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when Defendant stated that he thought the this person had a weapon. See Ex. C, p. 11.7 The admissibility of such evidence is governed by Rule 404(b) of the Federal Rules of Evidence, which provides that evidence of other crimes, acts, or wrongs is not admissible to prove ca c r u m y e f r t poe m t eopr n yi et r a t np nko l g, hr t bt a b of e o rv " o v,pot i , t , e r i ,l ,nwe e ae ed i u t n n p p ao a d i n t o asneo m s k o ac et S c ei nei am s b ifu f t sa d ty r bec f iae r ci n" uh v ec s d i i e f or a o re e i, t d . d sl cr satisfied: (1) the evidence is offered for a proper purpose; (2) the evidence is relevant; (3) the probative value of the evidence is not substantially outweighed by its potential for unfair prejudice; and (4) the court provides an appropriate limiting instruction upon request. Chavez v. City of Albuquerque, 402 F.3d 1039, 1046 (10th Cir. 2005). Here, the last three elements are clearly met: the evidence is relevant, its probative value is not substantially outweighed by its potential for unfair prejudice, and the Court can provide an appropriate limiting instruction if Defendant requests. Moreover, the purpose for introducing the evidence is proper. It is undisputed that Defendant shot an unarmed man. His defense is that he feared that Mr. Medrano possessed a knife or a gun. Implicit in this defense is the argument that D f dn s ee t t . dao a a epn a a e m s k o ac et U dr u e nat blfh MrMer hd w ao w s m r iae r ci n ne R l e ' i a n e t d . e 404(b), Plaintiff is entitled to show the absence of mistake or accident. Further, the qet nbfr t j yi w e e D f dn sc i e f rt tMr uso e e h u s ht r e nat lm d e h i o e r h e ' a a a . Medrano had a weapon was objectively reasonable in light of the facts and circumstances confronting him. Graham, 490 U.S. at 397. One of those objective circumstances was

7

A summary description of this shooting is contained in the Denver Dsi At nys fc R pr am tda ir t t re' O f e eot d ie t tc o i , t the hearing before the Court on September 26, 2005. See Exhibit A, p. 18, l. 15-25. Notwithstanding the admission of this document at that hearing, Defendant has stated that he will object to the admission of the description of the prior shooting contained in the Report. Plaintiff accordingly has filed, contemporaneous with this Response, a motion pursuant to F.R.C.P. 56(f) for a continuance to conduct discovery sufficient to adduce these facts.

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D f dn s nowledge that, five months earlier, he shot and killed an unarmed man, allegedly e nat k e ' because he feared that the man had a weapon. The evidence of this prior shooting is admissible for the purpose of showing that it was not objectively reasonable for Defendant, when he spotted Mr. Medrano, to use deadly force on the supposition that he had an unseen weapon. 5. Tenth Circuit precedent demonstrates that summary judgment should not be granted.

I h Me oadm Bi , e natee hai o t T n Cr is decision in n i m r u r fD f dn r i ev y n h et i u ' s n e e ls l e h ct Blossom, supra. In that case, the Court reaffirmed the principle that summary judgment is i prpiei t i ue pr ' vro o t f t cntu sav li o ac a y n por t f h n r a ys e i f h a s ost e a a e j d t sn e c it i ao f l r o tn el established right. 429 F.3d at 966. The Court in Blossom went on to point out that the injured party in the Blossom cs d nt rdc aycnlt gei net d pt t df dn ' ae i o poue n ofcn v ec o i u h e nat d ii d s e e e s version of the facts (id.t 6)adt th i os t c snt df dn s te etw r a 47,n h t n nie i i h e nat s t n e a e c sn e e e ' am s e not material to the facts relied upon by the Court (id. at 468). The Blossom case involved a late night encounter between a police officer and a much larger, apparently drunken, and obviously aggressive man. The decedent repeatedly cursed the police officer, and ignored the off e s tm tt cl t sut n n w ri s T e fcr i r ae p o a h i ao ad a n . h of e c' t s m et i ng i repeatedly retreated and attempted to defuse the situation. The decedent physically assaulted the officer, and then ran away. He then turned and ran toward officer making a variety of verbal threats. Despite this provocation, the officer repeatedly retreated, and pleaded with and warned the decedent to comply with his commands. (Id. at 964-65). The undisputed facts relied upon by the majority in Blossom are instructive: the decedent (Mr. i u) eggdD pt Y rruh n w s of n t nln ages e t t euy Pc p "nae eu a og ad a cnr ti aad gr i ; h D pt k y b o ao sv a Yarbrough tried to diffuse the confrontation and warned Mr. Pickup several times to get on the 15

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ground; that Mr. Pickup was larger than the officer; that Deputy Yarbrough believed Mr. Pickup at the time to be drunk, high and possibly armed; that the deputy knew there were civilians nearby; that he was alone and in the dark; and that he shot Mr. Pickup from a distance of five to svn et ( at 967). ee f . Id. e" Comparing the facts explicitly relied upon by the Court in Blossom to the facts in this case, they are markedly different: Mr. Medrano did not engage the Defendant; he was walked away. Mr. Medrano was not confrontational and aggressive; he was passive. Defendant did not try to diffuse the confrontation, retreat, or warn Mr. Medrano several times. Defendant had no reason to believe that Mr. Medrano was drunk or high on drugs. Defendant was substantially younger and larger than Mr. Medrano. (Compare Ex. B, p. 50, l. 9-10, with Ex. E, p. 3). No civilians were in the vicinity; the Defendant believed that the residents of the nearby home were gone. The shooting occurred in broad daylight, with uniformed officers on the way to the scene. Moreover, the Court in Blossom repeatedly reiterated the significance of the undisputed nature of the facts. As Judge Henry stated in his concurring opinion in Blossom, 420 F.3d at 9686,vn ne t s f m r er i s n ud pt f t t cs w s c s. Jde er 9 ee udrh e a oe g g u ad ni u d a s h ae a "l e ug H ny o r eo s e c, e o " went on to tehtI sutn w e t ol wt s t a a lhon ia ` tet ' n, s tt " iaos hr h n i eso fasotg s n ie s d oe a a n t i e e y n t i nr e w solp ce wtcu o.( e hu r ed i atn Id.). d o h i " 16

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Jde er'cm eta cniet i t T n Cr is eio i Carr. There, ug H ny o m n r os t wt h et iu' dc i n s s e sn h e h ct sn officers responded to a call regarding an assault at an apartment building. The officers testified

that, when they attempted to arrest the decedent, he was acting very excited and aggressive. According to the officers, when they attempted to handcuff the decedent, he struck one officer in the head and kicked the other officer in the groin. The decedent then ran from the building, pursued by both officers. During this time, a third officer arrived. During the chase, the decedent emerged from a hiding place and moved toward one of the officers, who testified that he sprayed the decedent with OC spray and struck him with a baton. The decedent struck that officer, who fell, while the decedent again ran. According to the officers, the decedent picked up a four-inch piece of concrete during the chase. The officers testified that the decedent then turned and ran toward one of the officers while raising his arm to throw the concrete at the officer. Two of the officers testified that they began firing their guns before the concrete le t dcdn s ad bt ni pra f h eeet hn, u a m ai t e ' tl witness testified that the shots were fired after decedent had finished throwing the concrete. The two officers fired 11 shots in all. According to the autopsy, all of the shots that hit the decedent entered his back side, with the fatal shot having entered his buttocks. B sd n hs f t t Dsi C ut ei t ofe ' ooso sm a j g et ae o t ea s h irt ordn d h fcr m tn fru m r u m n e c , e tc e e i s i y d based on qualified immunity. In so doing, the District Court stated that: when the submitted facts are considered in the light most favorable to Plaintiff, it appears Mr. Carr was shot at a time when he no longer posed a threat of serious physical harm....Viewed in the light most favorable to Plaintiff, at the time the Defendant Officers acted, allowing frhine t" ae pt o t r edo m k sl-second judgments - e i in circumstances that are tense, uncertain, and rapidly evolving -aoth a on bu t m ut e o fr t ts eesr i a ai l sutn a oj te r snb ofe foc h incs yn prc a iao, n b cvl e oal fcr e a a tu r t i " ei y a e i would not have found deadly force justified. (337 F.3d at 1226).

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The Tenth Circuit in Carr a i e t Dsi C ut f d g I s di ,h C u fr d h irt ors i i . n o o g t or fm e tc ' nn n e t e pai d htor sol ao "r ii ]h Ofe ' e i o eetrhrhn a i m hs e t cut hu vi c d[ g t fcr vro f vn a e t - ss z a s d d e tn e i s s n s t a proper -t f t l ai m sf oalt t iue pr .Id. at 1227). When that approach h a u m tx ota r eo h n r ay( e ca r v b " e j d t is followed in this case, summary judgment based on qualified immunity should be denied.8 II. WHILE PLAINTIFF SUBMITS THAT THE TRUJILLO DECISION HAS BEEN, OR SHOULD BE, OVERTURNED, HE CONCEDES THAT HE CANNOT MAKE A SHOWING A SPECIFIC INTENT BY DEFENDANT TO INTERFERE WITH HIS FAMILIAL ASSOCIATION WITH HIS SON. Wi r pc t t pro o Pa tf §93 c i bsd o f i la oii , t e et o h otn f lnfs 18 lm ae n a l s c t n h s e i ii' a m i s ao a Defendant in his Motion correctly states, based on Trujillo v. Board and County Commissioners of the County of Santa Fe, 768 F.2d 1186, 1190 (10th Cir. 1985), that Plaintiff must show a specific intent by Defendant to interfere with that association. Plaintiff concedes that he can make no such showing in this instance. However, Plaintiff submits that the Trujillo decision should no longer be the law of this Circuit or should be overruled. As was stated by the Tenth Circuit in Medina v. City and County of Denver, 960 F.2d 1493 (10th Cir. 1992), a §1983 claim may be maintained by a showing that the defendant acted recklessly in disregard of a known risk to the plaintiff. Reckless conduct can be considered directed toward the plaintiff if (1) the plaintiff is a member of a limited and specifically definable group, (2) the defendant's conduct specifically put the members of that group at substantial risk of serious, immediate, and proximate harm, (3) the risk was obvious or known, and

8

In his Memorandum Brief, Defendant appears to assert that his subjective, self-serving statements about his fear fr ipr nla t m sb acp d sats c Pa tf cno m s r n ei neht e nat a nt o h e oasf y ut e cet a f ,i e ln f"ant ut ay v ec t D f dn w s o s s e e c n ii e d a e in legitimate fear of bodily injury o da . ( m r dm Bi ,.3. uicss fh sr iw u nvr e r et" Me oa u r fp1) B tn ae o t s ot t ol ee b h n e i , d possible for a plaintiff to directly disprove subjective testimony by an officer. This is precisely the reason why the Supreme Court in Graham instructed the courts to discount such subjective testimony, and review the evidence for objective reasonableness.

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(4) the defendant acted recklessly in conscious disregard of that risk. It is not, however, necessary that the defendant know the specific identity of each person within such a group in order for his conduct to be deemed directed toward the individuals within the group. Plaintiff submits that Medina establishes, and federal law should provide, that reckless behavior by a state actor alone is sufficient to support a familial association claim in this instance. Plaintiff is aware that this Court has disagreed with this position in Hill v. Martinez, 87 F.Supp. 2d 1115 (D. Colo. 2000). Without rearguing the issue previously decided by this Court, Plaintiff

respectfully disagrees and submits that the rule set forth above should be adopted. If that rule is flw dnh cs, e v ec o D f dn sek s e iapr from the foregoing. oo e its a t ei ne f e nat r l s s s pa l i eh d e ' cen s ent III. PLAINTIFF IS ENTITLED TO SEEK COMPENSATORY AND PUNITIVE DAMAGES, BOTH INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SERGIO MEDRANO. A. Plaintiff should be permitted to bring this §1983 claim in his individual capacity, notwithstanding Berry, but in any event is seeking the capacity to big h c i a pro arpeett e f eg Mern'ett r te lm s esn lersnai o Sri da os s e n a v o a.

Fnl, e natr e t t lnfs evte lm udr 18 m sb d m s d i l D f dn a ush Pa tf dr av c i s ne §93 ut e i i e, ay e g a ii' i i a s s based upon Berry v. City of Muskogee, 900 F.2d 1489 (10th Cir. 1990). While Plaintiff recognizes that Berry controls in this circuit, Plaintiff submits that this decision incorrectly applies federal law. Instead, Plaintiff submits that the law should be as outlined in the Eleven Cr is oe eet t iu' m r r n h ct c decision in Carringer v. Rodgers, 331 F.3d 884 (11th Cir. 2003). That is, Plaintiff submits that, udr 2US . 18, o r os rnfl et s te hu b i opre iot f e l ne 4 .C §98 C l a 'w ogu da tu sol en r a d n h e r . od h at d c ot t e da law of this state under §1983. Since Plaintiff in his personal capacity is the proper party to bring a claim under that statute, his claim in this proceeding is properly brought.

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Without waiving this position, however, Plaintiff is in the process of filing a petition with the District Court for the City and County of Denver for his appointment as the personal representative of the Estate of Sergio Medrano. When that petition is granted, Plaintiff will have the capacity to bring a claim under the Berry decision. At that time, Plaintiff will seek leave of Court to amend his complaint to add a claim in that capacity. If granted, that amendment will resolve any issue concerning his capacity. See Hill, supra. B. There is ample evidence to support claims for both compensatory and punitive damages under either Berry or the wrongful death statute.

In addition to raising the capacity issue, Defendant goes further in his Motion, asserting that " e eodidvi o ayei ne hth ete s ntdt aydm gs ( m r dm t r r s eo f n v ec t t s t iet e o n a ae. Me oa u h c d d a e a i l " n Brief, p. 17). While premature, this contention is incorrect. In Berry, decided under Oklahoma law, the Tenth Circuit determined that the appropriate compensatory damages in a §1983 death case would include medical and burial expenses, pain and suffering before death, loss of earnings based uo t poal dri o t v t ' lehdnth iuyocr d t v t ' l s f pn h rbb uao fh ii s i a o t n r cur ,h ii s o o e e tn e cm f e j e e cm s consortium, and other damages recognized in common law tort actions. 900 F.2d at 1507. The Berry decision also explicitly recognized that punitive damages could be awarded. (Id.) At some point, this Court will have to determine the precise contours of the state damages law incorporated into federal law governing §1983 cases brought in Colorado.9 Without deciding

9

See Berry, 0 F2 a 10 ( ncni r gw e e t proe o §93a stf db aot no s t 90 . t 56 " os e n ht rh upss f 18 r ase y dp o f te d I di h e e ii i a survival and wrongful death actions, we must consider that different states will define them differently, thus r u i i i da aa ss f ahs t sa .We i t ae of dt t s t sa w rs as c ryi e in n v ul nl e o ec te l q rg d i y a' w m g hv t i h a te l h n a a ' w ok stf t i n ia o l some instances, as when there are surviving dependents, but not in other cases, as when there is no one with a right t se ) o u. "

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that question, however, the there is ample evidence of the types of damages recognized in Berry and under the Colorado wrongful death statute:10 Berry r on e t t ei l n brl xes cnb r oe d Pa tf e gi s h m d a ad ui epne a e e vr . ln fs c z a c a s c e i i'

interrogatory responses reflect that the burial expenses for Sergio Medrano were $806.00. See Memorandum Brief, Ex. D, p. 3. These responses were executed under oath by the Plaintiff (id, p. 11), and are sufficient under Rule 56(c). Moreover, there is not requirement under either Berry or Colorado law that a plaintiff, who is bringing a derivative claim in any event, must have personally paid the expenses. Indeed, the rationale of Berry explicitly recognized that the damages awarded in a post-death §1983 action were not to compensate the individual damages of a plaintiff, but to represent the compensation that would have otherwise been due the victim. The decision in Berry likewise recognized that damages could be recovered for the

v t 'pi ad uf i bfr da .H r t r ia p ei ne f e i Mer os w ii s a n sf r g e e et e ,h es m l v ec o Sr o da 'o n cm n en o h e e e d g n pain and suffering prior to his death. See Ex. B, pp. 11, l. 11 ­ l. 7; p. 32, l. 9-22. 12, Berry l e i r on e r oe frh v t 'l s fosru . gi t r i ws e gi d e vr o t ii so o cnotm A a , e k e c z c y e cm s i nhe

is evidence to reflecting that Sergio Medrano lost the consortium of his father, among others. See Memorandum Brief, Ex. C, p. 7. Under Berry, Plaintiff is entitled to recover punitive damages against Defendant.

Though Defendant did not even address this issue in his Memorandum Brief, there is ample evidence t t e nat at n w r aeddb ccm t cs f if adw n ncnut h D f dn s cos e tne y iu s ne o wlu n at odc a e ' i e t r a ll o ,

10

Unlike the qualified immunity issue, this question is governed by standard summary judgment principles, and Defendant bears the burden. Shamrock Taxi, supra.

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which Defendant must have realized as dangerous, done heedlessly and recklessly, without regard to consequences, or of the rights and safety of Sergio Medrano. See pp. 3-7, 10-13, above. Under such circumstances, there are genuine issues of material fact concerning the existence and amount of damages, precluding summary judgment on that issue.

Dated: April 5, 2006 Respectfully submitted, HUTCHINSON BLACK AND COOK, LLC

By:

s/ William D. Meyer William D. Meyer, No. 6562 921 Walnut Street, Suite 200 Boulder, CO 80302 Phone: (303) 442-6514 Fax: (303) 442-6593 [email protected] ATTORNEYS FOR PLAINTIFF

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CERTIFICATE OF SERVICE I hereby certify that on the 5th day of April, 2006, I electronically filed the foregoing P A N IFS ME R N U I O P ST O T MO I N F R S MMA Y L I TF ' MO A D M N P O II N O TO O U R JUDGMENT with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses: [email protected] [email protected] [email protected]

s/ William D. Meyer William D. Meyer Attorneys for Plaintiffs Hutchinson Black and Cook, LLC 921 Walnut Street, Suite 200 Boulder, CO 80302 Phone: (303) 442-6514 Fax: (303) 442-6593 [email protected]

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