Free Motion for Summary Judgment - District Court of Colorado - Colorado

Case 1:04-cv-00701-LTB-MJW

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Filed 02/28/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-0701-LTB-MJW NICOLAS MEDRANO, Plaintiff, v. KARL SCHERCK, Defendant. ______________________________________________________________________________ AFFIDAVIT OF KARL SCHERCK ______________________________________________________________________________ Affiant, KARL SCHERCK, after being duly sworn, states as follows: 1. At the time of the incident on September 22, 2003, I was a police officer

employed by the Westminster Police Department acting within the course and scope of my employment. I have personal knowledge of the matters set forth below. 2. I was off-duty at the time I observed an individual, later determined to be Sergio

Alejandro Medrano, acting suspiciously in the neighborhood of 1400 South Lincoln Street. 3. On September 22, 2003 I had never seen Sergio Medrano, and was unaware of his

identity until after the events of September 22, 2003 took place. 4. I was walking to my mother' house located at 1402 South Lincoln Street so that I s

could mow her lawn, when I first came upon Sergio Medrano. 5. I first observed Sergio Medrano walk from near the bushes at my mother' house, s

and when he noticed me, he quickly began walking down the block on the sidewalk.

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6.

I next observed Sergio Medrano peering in the window and pulling on the door or

security door at 1434 South Lincoln Street. 7. I know the residents at 1434 South Lincoln Street and it did not appear to me that

they were home at the time I observed Sergio Medrano on their property. 8. I quickly proceeded home to retrieve my cell phone in order to contact the police,

to inform them of my suspicions, and to provide a description of the individual later identified as Sergio Medrano. 9. It is my habit and practice to carry a firearm with me for protection at almost all

times when I am outside my home. 10. When I retrieved my cell phone from home on the afternoon of September 22,

2003, I also retrieved my off-duty weapon, a Colt .380 semi-automatic pistol. 11. 12. As I exited my house, I immediately dialed 911. Upon being placed in contact with a 911 dispatcher, I provided her with

information concerning my observations. 13. In retrieving my cell phone and off-duty weapon, I lost sight of Sergio Medrano,

but remained on the phone with the 911 dispatcher. 14. After a very brief period in which I continued to speak with the 911 dispatcher, I

observed Sergio Medrano in the backyard of 1434 South Lincoln Street. 15. I proceeded to cross the street to confirm my belief that the person in the backyard

of 1434 South Lincoln was the same person I had previously seen peering in the window.

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16.

I had previously observed that the individual later determined to be Sergio

Medrano was wearing dark clothing, and the individual I saw in the backyard of 1434 South Lincoln was also wearing dark clothing. 17. Upon entering the backyard of 1434 South Lincoln, I failed to observe the

individual in dark clothing I had seen from across the street, but I noticed that the door to the detached garage was slightly ajar. 18. Being familiar with the residents of 1434 South Lincoln, I was aware of the fact

that they have two dogs. 19. After noticing the door to the garage of 1434 South Lincoln was slightly open, I

heard a noise come from inside the garage. 20. I observed one dog at the wrought iron security door to the house, but could not

see a second dog, and thought the second dog might have produced the noise that came from the garage. 21. 22. I pushed open the door to the garage and stepped into the threshold to take a look. I opened the garage door approximately 18 inches, and while standing in the

threshold, I observed the same individual I had witnessed near the bushes of my mother' house s and then at 1434 South Lincoln Street, standing approximately eight to ten feet away from me. 23. 24. Sergio Medrano had a pointed board in his right hand. The copy of the color photographs attached to my affidavit accurately depict the

spear-like board Sergio Medrano was holding. 25. Sergio Medrano made eye-contact with me and then squared off and put his left

hand into his coat pocket as though he might be retrieving a weapon.

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26.

I recall Sergio Medrano taking two rapid steps toward me and he appeared to raise

the pointed board at me as though he might attempt to use it in order to assault me. 27. Within the time it took Sergio Medrano to take a couple of steps towards me, I

fired two or three shots in self defense, fearing that he possessed a knife or a gun, or that he was going to assault me with the pointed board. 28. My cell phone was connected with the 911 dispatcher from the time I exited my

house until the time at which I discharged my weapon. 29. Immediately upon discharging my weapon, I conveyed this information to the 911

dispatcher, and kept my weapon trained on Sergio Medrano, in fear that he still possessed a weapon with which he could severely harm me. 30. Sergio Medrano then collapsed approximately a foot away from the threshold of

the door to the garage. 31. 32. Around that time, I hung up the phone with the 911 dispatcher. Within a very brief period of time, possibly a minute or two, I heard a siren

coming from in front of the house. 33. Upon hearing the siren, I proceeded out to the front of 1434 South Lincoln and

flagged down the first Denver police officer to respond. 34. I immediately surrendered my off-duty weapon to the responding officer and led

him into the backyard, and then the garage, where I had encountered Sergio Medrano. 35. All actions taken by me were done in good faith and with the intent to uphold my

sworn duty as a police officer to uphold the law.

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36.

I did not intend for my actions to interfere with Plaintiff' relationship with his s

son, Sergio Medrano. 37. Medrano. 38. After review, Chief Montgomery determined that on September 22, 2003, I acted Prior to the initiation of this lawsuit I had never met or known Plaintiff, Nicolas

lawfully and appropriately pursuant to Section I.A of Westminster Police Department Directive No. 93-3 and that I had assumed on-duty status at the time of the shooting.

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FURTHER AFFIANT SAYETH NAUGHT.

s/ Karl Scherck Karl Scherck STATE OF COLORADO COUNTY OF DENVER ) )ss. )

SUBSCRIBED AND SWORN to me before this 28th day of February, 2006, by Karl Scherck. By s/ Barbara A. Ortell Notary Public My Commission Expires: 1/23/09____________

00212305

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