Free Reply to Response 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. 03-cv-2328-RPM-OES GREG JOSEPH GONZALES, by and through his next friend, JUNE BRAVO, Plaintiff, v. OFFICER BRETT C. TITUS, in his official and personal capacity, and CITY & COUNTY OF DENVER, a municipality, Defendants. DENVER'S REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Defendant City and County of Denver, by and through its attorneys, the Office of the Denver City Attorney, Thomas Bigler, Assistant City Attorney, submit's Denver's Reply Brief in Support of Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56, as follows: RESPONSE TO FACTUAL DISCUSSION Denver incorporates as if fully set forth herein the positions and arguments contained in Defendant Titus' Reply Brief in Support of Motion for Summary Judgment, Sections II, III, and IV previously filed in this case. STANDARD OF REVIEW Plaintiff's Response to City's Motion for Summary Judgment confuses the standard for summary judgment by relying on authority from the Colorado Supreme Court and Colorado Rules of Civil Procedure. These state law sources are not binding on

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this Federal District Court and the Court should look to the citations to the Federal Rules of Civil Procedure and federal case law contained in Defendants' briefs. ARGUMENT A. SUMMARY JUDGMENT FOR DENVER AGAINST PLAINTIFF'S FIFTH, SIXTH AND SEVENTH CLAIMS IS APPROPRIATE AS A MATTER OF LAW BECAUSE PROBABLE CAUSE EXISTED TO STOP, DETAIN AND ARREST PLAINTIFF AND OFFICER TITUS' USE OF FORCE WAS OBJECTIVELY REASONABLE UNDER THE 4TH AMENDMENT. Denver incorporates the arguments and law contained in Defendant Titus' Opening and Reply briefs filed in support of Defendant Titus' Motion for Summary Judgment regarding the overwhelming existence of probable cause possessed by Officer Titus. Stated simply, Officer Titus had ample probable cause to stop the Neon for the numerous undisputed traffic violations and the Officer's reasonable suspicion that the occupants of the vehicle may have been involved in the felony menacing incident based on the four undisputed key descriptive elements included in the description from the police dispatcher. Plaintiff's behavior in jumping out of the car and ignoring Officer Titus numerous commands to stop and warnings that he would release the dog by fleeing into the darkness led Titus to reasonably believe that more might be at issue than a mere traffic infraction. Summary judgment against Plaintiff is appropriate given the undisputed totality of the circumstances facing Officer Titus on the night in question. In reviewing an excessive force claim under the objective reasonableness standard of the 4th Amendment, courts look at the facts and circumstances of each case including the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of the officer and others, and whether the suspect actively resisted arrest or attempted to evade arrest by flight. Marquez v. City of Albuquerque, 399 F.3d 1216,

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1220 (10th Cir.2005), citing Graham v. O'Connor, 490 U.S. 386, 396 (1989). The reasonableness of the force used is viewed from the perspective of a reasonable officer on the scene and includes an allowance for the fact that officers are required to make split second judgments in tense, uncertain, and rapidly changing situations. Id. The undisputed substantial evidence in this case supports a conclusion as a matter of law that Officer Titus' actions were objectively reasonable. Officer Titus was faced with potentially armed fleeing felony menacing suspects. Officer Titus heard the radio dispatch describing the gun menacing incident and suspect and reasonably believed that the driver of the Neon speeding from the direction of the menacing matched the suspect's description. The 10th Circuit has unambiguously held that the 4th Amendment does not require police officers to use the least intrusive means to effectuate an arrest, only reasonable ones. Marquez v. City of Albuquerque, 399 F.3d 1216 (10th Cir.2005). The undisputed evidence in the record confirms that the Neon ran a red light in Officer Titus' presence and sped away from him at a very high rate of speed creating a danger to the public and a reasonable belief that the occupants of the car were willing to evade arrest. When the Neon stopped in the road on the dead end street, all the occupants ran from the car attempting to flee. Plaintiff ignored Titus' commands to stop and warnings that he would release his dog and fled into the darkness exposing Titus flank and endangering his safety. These undisputed facts portray a tense and rapidly evolving situation in which Officer Titus was confronted with potentially armed suspects who had just engaged in extremely dangerous and reckless conduct. Based on the undisputed facts, Officer Titus made a split-second judgment in a difficult circumstance and acted reasonably when,

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after commanding the suspects to stop and warning that he would release his dog, he did so to protect himself and the public. Finally, it is well established that a municipality cannot be held liable under § 1983 for the acts of an employee if it is not possible to find that the employee committed a constitutional violation because its liability is derivative from the employee. Id. 1225. Here, based on the undisputed facts, Officer Titus' actions were reasonable in all respects under the circumstances and summary judgment against Plaintiff is appropriate. B. SUMMARY JUDGMENT SHOULD BE GRANTED FOR DENVER ON PLAINTIFF'S EIGHTH CLAIM FOR RELIEF BECAUSE PLAINTIFF CAN NOT ESTABLISH AN UNCONSTITUTIONAL MUNICIPAL POLICY, PROCEDURE OR CUSTOM.

Plaintiff's response does not argue that a particular policy in the Denver Police Department K-9 Unit Policy Manual ("Policy") is unconstitutional. Instead, it appears that Plaintiff argues without any supporting case law that his constitutional rights were violated because the Policy does not prohibit deployment of a PSD to capture a fleeing suspect under the facts of this case. As a threshold matter, Plaintiff correctly recites Sgt. Evan Hvizdak's deposition testimony for the proposition that Officer Titus used a direct deployment to apprehend Plaintiff as he attempted to flee from the scene. Response, p. 27, Hvizdak Deposition testimony. Plaintiff also correctly states that such deployments are authorized under criteria established by the Policy which reads, in pertinent part, as follows: J. Pursuit/physical canine apprehension 4. Before deploying the Police Service Dog, the canine officer should

evaluate the utilization under Graham v. Conner guidelines.

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Response, p. 29 and Plaintiff's Exhibit 12. It is axiomatic that claims of excessive force by police are analyzed under the 4th Amendment. In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court established the doctrine of objective reasonableness. That is to say, whether or not a police officer's conduct constitutes excessive force must be viewed from the standpoint of the hypothetical objectively reasonable officer. If the force utilized by the officer falls within the range of that which an objectively reasonable officer would believe to be reasonable, then there is no constitutional violation. Id. 399. Perhaps more importantly the Graham court established a series of criteria that a court is to consider in determining whether or not the force utilized was objectively reasonable, to wit: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officer or others; and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight. Id. 396. There is no requirement that all of these criteria be satisfied before a use of force can be objectively reasonable. Gutierrez v. Hackett, 131 Fed.Appx. 621, 624 (10th Cir.2005). The court further observed that allowance must be made for the fact that police officers are often forced to make split second judgments, in circumstances that are tense, uncertain, and rapidly evolving. Id. 397. Finally, the Court established that the objective reasonableness test must be viewed from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. Id. 396. Plaintiff's argument that Denver's Policy is unconstitutional because it does not do not prohibit deployment of a PSD to capture a fleeing suspect under the particular facts of this case lacks merit given his acknowledgement that the Policy prescribes the Graham v. Connor reasonableness standard to gage potential deployments. It is

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impossible for a policy to identify and delineate every possible situation which a canine officer will encounter during a shift thus a general policy based on Graham is reasonable and appropriate. Unquestionably, the requirement in the Policy to limit PSD deployments to those which are reasonably necessary is intended to prohibit an arbitrary and capricious use of the dog and to limit the amount of force used to that which is reasonable and necessary under the circumstances. Plaintiff's assertion that Officer Titus displayed no awareness of the Graham v. Connor guidelines is merely speculative and conclusory and not based on facts in the record. To the contrary, Plaintiff's counsel took Titus' deposition and knows that Titus is an experienced POST certified police officer who has been a certified PSD handler since 1999 and receives regular on-going training in all aspects of police and PSD work and who belongs to numerous state and national PSD organizations. Likewise, Plaintiff's assertion that Officer Titus made no assessment of a lesser degree of force to use in this case lacks merit given that Titus attempted to obtain Plaintiff's cooperation without using force and only resorted to force when his safety became compromised by Plaintiff's actions. Also, Plaintiff's assertion that Titus could have used an alternative form of force in this circumstance or simply waited for backup to arrive is based upon the very type of 20/20 hindsight and second guessing that was rejected by the Court in Graham. The idea that Titus could have simply waited while Plaintiff ran into the shadows is ludicrous given the circumstances leading up Plaintiff's flight and the potential threat to Titus' safety and to the safety of the residents in the area. Plaintiff's argument that the Policy is constitutionally infirm because it does not prohibit deployment of a PSD to capture a fleeing suspect under the facts of this case also

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lacks merit given the following unequivocal Policy language cited by Plaintiff's Response regarding the guidelines for using force by PSD officers: 2. PSD technicians must have reasonable suspicion the suspect has

committed a crime and/or is a danger to the public or officer and should make every effort to insure that the canine uses only the force necessary to affect the apprehension. Response, p. 29 and Plaintiff's Exhibit 13. Clearly, the Policy prohibits the use of PSD's unless the officer has reasonable suspicion to believe that the suspects committed a crime or are a danger to the public or officer. Again, such a limitation is intended to prohibit an arbitrary and capricious use of the dog and to limit the amount of force used to that which is reasonable and necessary under the circumstances. Also, the fact that Titus commanded Plaintiff to stop fighting with the PSD and withdrew the PSD as soon as Plaintiff stopped fighting it evidences the fact that Titus allowed the PSD to use only the amount of force necessary to effect the apprehension. Plaintiff's reliance on the statement of his proffered expert in this case, Roger Willard, is misplaced. Mr. Willard can not identify any constitutional or other deficiency in Denver's Policy and, in fact, testified at his deposition that "My opinion does not address failures in the Denver Police Department K-9 policy or use-of-force policy." Denver's Exhibit A-5, Deposition of Roger L. Willard, p. 115, l. 10-11. Second, Mr. Willard himself testified that he is not an expert in the training, handling and deployment of PSD's. Exhibit A-6, Deposition of Roger L. Willard, p. 99, l. 22-24, attached hereto. Also, as observed in Denver's opening brief, Mr. Willard testified that it is not his opinion that the Denver Police Department K-9 policy was insufficient or deficient or

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that Officer Titus followed a policy which was not sound. Exhibit A-5, Deposition of Roger L. Willard, p. 115, l. 6-13. Accordingly, summary judgment on the Eighth Claim is appropriate. C. SUMMARY JUDGMENT SHOULD BE GRANTED FOR DENVER ON PLAINTIFF'S EIGHTH CLAIM FOR RELIEF BECAUSE PLAINTIFF CAN NOT ESTABLISH A CONSTITUTIONAL VIOLATION GROUNDED ON SUPERVISORY LIABILITY.

Plaintiffs' Response does not attempt to rebut the argument in Denver's opening brief that he can not make a prima facie showing of municipal liability under § 1983 on a supervisory liability claim. Plaintiff has not shown that "an affirmative link exists between the [constitutional] deprivation and either the supervisor' personal participation, s his exercise of control or direction, or his failure to supervise as required by Meade v. Grubbs, 841 F.2d 1512, 1527 (10th Cir.1988). Also Plaintiff has not shown that there was a complete failure to train by Officer Titus' supervisors or the training was so reckless or grossly negligent that future misconduct was virtually inevitable. Id. Under § 1983, a defendant may not be held liable under a theory of respondeat superior. See, Gagan v. Norton, 35 F.3d 1473, 1476 (10th Cir.1994). Finally, Finally, Plaintiff's argument that Denver failed to supervise Officer Titus and that such failure was deliberately indifferent lacks merit. The Supreme Court has explained that "deliberate indifference entails something more than mere negligence . . . [but] something less than acts or omissions for the very purpose of causing harm or with the knowledge that harm will result." Farmer v. Brennan, 511 U.S. 825, 835 (1994). The Court defined this deliberate indifference standard as equal to recklessness, in which a person disregards a risk of harm of which he is aware. Id. 836-37. In this regard, Plaintiff has not presented any evidence that Titus acted recklessly under the

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circumstances or that Titus' supervisory personnel did not adequately supervise Officer Titus or that supervisory personnel actually knew or should have known that the officer's conduct would recklessly harm a person with whom the officer comes in contact. The Plaintiff has not met his burden of production in this case and summary judgment for Denver and against Plaintiff on the Eight Claim for Relief grounded on supervisory liability should be granted. CONCLUSION For the reasons set forth herein, Defendant City and County of Denver respectfully requests that the Court grant summary judgment against Plaintiff and for Denver as a matter of law on Plaintiffs Fifth, Sixth, Seventh and Eighth Claims for relief. Dated this 9th day of January, 2006. Respectfully submitted: DENVER CITY ATTORNEY'S OFFICE

THOMAS BIGLER Assistant City Attorney s/ Thomas Bigler__________ Thomas Bigler Denver City Attorney' Office s Litigation Section 201 W. Colfax Ave., Dept. 1108 Denver, Colorado 80202 Telephone: (720) 913-3100 Facsimile: (720) 913-3182 Attorney for City and County of Denver

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CERTIFICATE OF SERVICE I hereby certify that on this 9th day of January, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] [email protected] s/ Raquel R. Trujillo_____________ Raquel R. Trujillo, Legal Secretary Denver City Attorney's Office

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