Free Brief in Support of 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 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 Brief in Support of Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56, as follows: UNDISPUTED FACTS The material undisputed facts in this case establish that during the afternoon of August 23, 2001, Plaintiff's stepbrother Jeffrey Pacheco Dominguez ("Dominguez") borrowed his girlfriends 2000 Neon auto and drove to Plaintiff's house to see if Plaintiff wanted to "hang out" with him and a couple of his friends. Exhibit A-1, Dominguez Deposition, p. 23, l. 9-12. Dominguez did not have a valid driver's license on August 23, 2001. Exhibit A-1, p. 19, l. 11-17. Plaintiff went with Dominguez who next picked up

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Josh Santistevan (Exhibit A-1, p. 25, l. 4-6) and Paul Amparan. Exhibit A-1, p. 32, l. 16-23. Dominguez drove the group to a liquor store in a shopping center in the area of First Avenue and Federal Boulevard. At the liquor store someone from the group purchased beer and rum. Exhibit A-1, p. 34, l. 1-25. See also, Exhibit A-2, Paul Amparan Deposition, p. 20, l. 5-15, and Exhibit A-3, Greg Gonzales Deposition, p. 69, l. 23-24. Afterward, four females got in the Neon with the men and Dominguez drove the Neon with the seven passengers to a nearby park. Exhibit A-1, p. 36, l. 20-24. Plaintiff that Dominguez was drinking beer while driving. Exhibit A-3, p. 73, l. 19-25 and p. 74, l. 1-11. The group of men and women stayed at the park for several hours. Exhibit A-1, p. 38, l. 3-15. Dominguez drank beer (Exhibit A-1, p. 39, l. 12-19) and Amparan drank the rum. Exhibit A-2, p. 20, l. 5-15. The group left the park in the Neon when it started getting dark. Exhibit A-1, p. 38, l. 14, 15. The men drove the girls to a home near the park (Exhibit A-1, p. 38, l. 24, 25) after which they drove west on Evans Avenue towards Sheridan Boulevard. Exhibit A-1, p. 44, l. 1-5. At about the same time Plaintiff and the others were traveling westbound on Evans Avenue towards Sheridan Boulevard, a Denver Police Department dispatcher notified patrol units of a 911 emergency telephone call from 1600 South Zenobia Street in Denver. Denver police officer Brett Titus was patrolling in the area with his Police Service Dog ("PSD"), when he heard the dispatch and proceeded towards Zenobia Street via northbound Sheridan Boulevard. Exhibit A-4, Brett Titus Deposition, p. 42, l. 1-11. The 1600 block of South Zenobia Street is located one block east and four blocks north of

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the intersection of Sheridan Boulevard and Evans Avenue. Exhibit A-4, p. 100, l. 3, 4. Officer Titus testified that "I remember it was a female had called 911, and said that somebody had a gun held to, I believe, her husband or maybe boyfriend or another male, held the gun to this person's head." Exhibit A-4, p. 41, l. 2-5. Officer Titus also testified that the dispatcher radioed that "(t)he suspect's description was a Hispanic male, bald head, with tattoos" and "(t)here was no description of the vehicle" that the suspect drove from the scene of the felony menacing. Exhibit A-4, p. 41, l. 12, 13 and 21, 22. When Officer Titus got to the Sheridan and Evans intersection he stopped for a red light at which time he observed the Neon, which was traveling from the direction of the felony menacing complaint, also stopped at the intersection on westbound Evans. Exhibit A-4, p. 42, l. 20-25. Dominguez became concerned when he saw Officer Titus' marked police cruiser at the intersection because he was driving without a license. Exhibit A-1, p. 47, l. 21-23. The Neon proceeded through the intersection past the front of Officer Titus' cruiser and made a left turn onto southbound Sheridan Boulevard. According to Amparan, Dominguez "took off in the car. He sped away" (Exhibit A-2,, p. 26, l, 2) at "(m)aybe 50, 60" miles per hour. Exhibit A-2, p. 26, l. 8, 9. Plaintiff also testified that that Dominguez sped through the intersection (Exhibit A-3, p. 76, l. 20-23) and traveled southbound on Sheridan Boulevard at approximately 80 or 90 miles per hour (Exhibit A3, p. 78, l. 15). Officer Titus testified that just as his light on Sheridan turned green, the Neon proceeded through the intersection from Evans Avenue against the red light. Exhibit A4, p. 45, l 17-19 and p. 48, l. 13-17. The Neon passed through Officer Titus' headlights

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giving him a brief view of the driver (Exhibit A-4, p. 51, l. 20-24) and that "(i)t was at that time that - - the driver, a Hispanic male, bald head, you know, looked right at me, was right in front of me. And it was at that time that I thought that was our suspect." Exhibit A-4, p. 43, l. 1-4. Dominguez testified at his deposition that at the time of the incident he had a short haircut call a "buzz cut". Exhibit A-1, p. 42, l. 18-21. Officer Titus testified that after the Neon turned in front of him on Sheridan "at a pretty decent high rate of speed (Exhibit A-4, p. 42, l. 24, 25) he cleared traffic in the intersection and turned to travel southbound on Sheridan "to catch up with the vehicle, who at this point had blacked out and picked up speed." Exhibit A-4, p. 43, l. 5-11. Officer Titus testified that in addition to running the red light, the Neon driver's actions in turning his lights off and accelerating was suspicious to him. Exhibit A-4, p. 48, 1-9. After speeding southbound on Sheridan Boulevard, Dominguez made a right turn onto westbound Warren Street and extinguished his headlights as he made the turn. Exhibit A-3, p. 78, l. 12-14. Warren Street is a residential street with houses on each side and the Neon was traveling at about 80 miles per hour through the neighborhood. Exhibit A-3, p. 82, l. 17-20. The Neon was traveling so fast that when it hit a dip in the road it went into the air and almost jumped up on the sidewalk. Exhibit A-3, p. 84, l. 1324. Plaintiff heard metal from the car scraping the street as he and the others were being thrown about the inside of the car. Exhibit A-3, p. 85, l. 5-16. As Officer Titus followed the Neon westbound on Warren Street the Neon was going so fast it was leaving Officer Titus behind. Exhibit A-4, p. 53, l. 2-5. According to Officer Titus, "(t)he vehicle is now at such a high rate of speed - - there's pretty significant dips in the road. He runs the stop sign at a high rate of speed at - - I believe it

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was Depew Street. And at Depew, again, I believe there's pretty significant dips, that the car is shooting sparks from underneath it." Exhibit A-4, p. 53, l. 10-16. When the Neon got to Harlan Street Dominguez ran a stop sign and made a right hand turn at a high rate of speed. Exhibit A-3, p. 92, l. 1-4. Harlan Street is a residential street with houses on both sides. Exhibit A-1, p. 55, l. 23-25. Almost immediately upon turning, the occupants of the Neon realized that Harlan was a dead end street (Exhibit A3, p. 92, l. 24, 25) and everybody got scared (Exhibit A-3, p. 93, l. 12) and "(t)hey just panicked". Exhibit A-3, p. 97, l. 7-11. Dominguez stopped the Neon on Harlan Street in front of a house (Exhibit A-1, p. 57, l. 16-18) and everybody got out fast. Exhibit A-1, at p. 59, l. 12, 13). Santistevan ran around the car to the side of a house and jumped over some fences. (Exhibit A-3, p. 99, l. 10-19) and that is when the police officer "came out of nowhere and hit his lights." Exhibit A-3, p. 101, l. 17, 18. Officer Titus had his lights and siren activated when he approached the Neon on Harlan Street. Exhibit A-3, at p. 102, l. 2-6. Dominguez and Amparan also got out of the car and ran as Officer Titus arrived. Exhibit A-3, at p. 103, l. 1-25. Before Plaintiff got out of the Neon he heard the police officer saying something like "freeze" or "stop" (Exhibit A-3, p. 107, l. 10-12) once or twice. Exhibit A-3, p. 109, l. 7, 8. When Plaintiff heard the officer he understood that the officer was directing them to "(s)urrender. For us to give up." Exhibit A-3, p. 107, l. 21, 23. Plaintiff did not surrender (Exhibit A-3, p. 107, l. 24, 25) but instead ran or jogged over to the side of a house. Exhibit A-3, p. 109, l. 9-11. Officer Titus testified that in his mind all of the suspects were armed (Exhibit A4, p. 94, l. 23, 24) because he was responding to a felony menacing complaint in which

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someone had just pointed a gun at another man's head. (Exhibit A-4, p. 98, l. 23, 24) According to Officer Titus, as he approached the Neon all four occupants got out and fled roughly in the same direction. Exhibit A-4, p. 63, l. 5-11. Officer Titus got out of his marked police cruiser, drew his weapon, stood behind his car door for cover and yelled: "Stop, show me your hands, get down on the ground, don't move, I'm going to send the dog. Numerous commands to that effect." Exhibit A-4, p. 64, l. 2-5. Ignoring Officer Titus' warning, Dominguez, Amparan and Plaintiff begin walking (Exhibit A-4, p. 64, l. 16-18) and then running toward Officer Titus (Exhibit A-4, p. 68, l. 11-12) when Plaintiff "decides to run west- -southwest between this large tree and the corner of the house." Exhibit A-4, p. 68, l. 17-19. Officer Titus' cover behind the car door was jeopardized when Plaintiff ran around the corner of the house and the other suspects continued moving towards him (Exhibit A-4, p. 69, l. 13-15) and "it was at that point that I deployed my service dog." Exhibit A-4, p. 69, l. 17-19. When Officer Titus released the PSD, "the two parties (Dominguez and Amparan) that were coming towards me stop as the third (Plaintiff) continues to run. So my dog went after the person, the third suspect that was running." Exhibit A-4, p. 72, l. 25 and p. 73, l. 1-3. The dog is trained to pick the suspect that is either fleeing or being aggressive towards the officer. Exhibit A-4, at p. 78, l. 13-17. When Plaintiff fled into the darkness (Exhibit A-4, at p. 82, l. 11-13), Amparan and Dominguez complied with Officer Titus' commands to lie on the ground which allowed the officer to move to the area where the PSD engaged Plaintiff while maintaining his watch on the other two suspects. Exhibit A-4, p. 81, l. 5-15. Officer Titus instructed Plaintiff to stop resisting the PSD and, when Plaintiff complied, Officer Titus released the dog (Exhibit A-4, p. 85,

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l. 10-18) and took Plaintiff and the other into custody. Plaintiff was charged criminally with interference with a lawful order (Exhibit A-3, p. 187, l. 22, 23) and subsequently accepted a plea bargain and pled guilty. Exhibit A-3, p. 187, l. 24, 25, and p. 188, l. 110. STANDARD OF REVIEW Summary judgment should be granted where, taking the facts in the light most favorable to the non-moving party, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Deepwater Investments, Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105 (10th Cir.1991). The party moving for summary judgment bears the burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmoving party to produce evidence creating a genuine issue of material fact to be resolved at trial. Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993) (internal citations omitted). To avoid summary judgment, the non-moving party must present more than "a mere scintilla of evidence." Id. There must be enough evidence to allow a reasonable jury to find for the non-moving party. Id. The non-movant "may not rest upon mere allegations or denials" of the pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), but must set forth specific facts showing there is a genuine issue for trial as to those dispositive matters which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Securities, Inc. 912 F.2d 1238, 1241 (10th Cir.1990). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in

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a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). 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. The Fifth, Sixth and Seventh Claims for Relief allege that Defendants lacked probable cause to stop and detain Plaintiff in violation of the Fourth Amendment of the United States Constitution. Third Amended Complaint1, p. 8, ¶ 44. In support of these claims, Plaintiff asserts that Officer Titus contacted him only for his role as a passenger in a vehicle that fled police. Id. p. 6, ¶ 23. In civil rights cases grounded on the Fourth Amendment, the Tenth Circuit has held that although the question of probable cause ordinarily falls within the province of the jury, a conclusion that probable cause existed as a matter of law is appropriate when there is not room for a difference of opinion concerning the facts: It is true that the issue of probable cause ordinarily is for the judge rather than the jury. That is because the issue usually arises in the context of a motion to suppress evidence, which the judge decides. But where the issue arises in a damage suit, it is . . . a proper issue for the jury if there is room for a difference of opinion. The underlying issue in deciding whether the police had probable cause to do what they did is reasonableness, which is the underlying issue in deciding negligence ­ a classic jury issue." (Emphasis added.)

The record reflects that Plaintiff filed two amended complaints identified as the Third Amended Complaint and Jury Demand in the present case on October 15, 2004 and December 13, 2004, respectively. All references herein are to the Third Amended Complaint filed on December 13, 2004.

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DeLoach v. Bevers, 922 F.2d 618, 623 (10th Cir.1990). Seizure of a person by a police officer without probable cause violates the Fourth Amendment's guarantee of security from unreasonable searches and seizures. Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir.1995). "Probable cause exists if facts and circumstances within the arresting officer's knowledge and of which he or she has reasonably trustworthy information are sufficient to lead a prudent person to believe that the arrestee has committed or is committing an offense. . . The primary concern is whether a reasonable officer would have believed that probable cause existed to arrest the defendant based on the "information possessed by the [arresting] officer. (Citations omitted)" Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir.2002). "In the probable cause determination, we look at the totality of the circumstances of each particular case." United States v. Vazquez-Pulido, 155 F.3d 1213, 1216 (10th Cir.1998). The Supreme Court has held that investigatory stops are justified when there is some objective manifestation that the person is or is about to be engaged in criminal activity: The Fourth Amendment prohibits "unreasonable searches and seizures" by the government, and it protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. Because the "balance between the public interest and the individual's right to personal security," tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer's action is supported by reasonable suspicion to believe that criminal activity "may be afoot, . . . (Citations omitted.) United States v. Arvizu, 534 U.S. 266, 273 122 S.Ct. 744, 151 L.Ed.2d 740 (2002).

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In United States v. Tibbetts, 396 F.3d 1132 (10th Cir.2005), the Court reviewed the constitutionality of an initial traffic stop and subsequent arrest for illegal possession of drugs. The Court reviewed prior decisions regarding the scope of the reasonable suspicion standard and held that a stop and seizure is reasonable when the officer is able to articulate the basis for the suspicion: An initial traffic stop is valid . . . not only if based on an observed traffic violation, but also if the officer has a reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring. The validity of a traffic stop under the Fourth Amendment turns on whether this particular officer had reasonable suspicion that this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction. So long as the standard is satisfied, it is irrelevant that the officer may have had subjective motives for stopping the vehicle. (Quotation omitted.) (Citations omitted). Id. at 1136, 1137. The Court also held that the determinative question is not whether a violation actually occurred: "Instead, the district court must determine whether (the officer) had reasonable suspicion of a violation, not whether there was actually a violation." Id. at 1137. See also, Atwater v. City of Lago Vista, 532 U.S 318, 353, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) (Very minor criminal offenses committed in the presence of an officer may create probable cause.) Viewing the facts in a light most favorable to Plaintiff, Officer Titus had probable cause to stop, detain and arrest the Plaintiff numerous times during this incident. The undisputed facts prove that Officer Titus articulated his suspicion in this first instance when he testified he personally observed the Neon proceed through the red light at the

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Sheridan and Evans intersection. Exhibit A-4, p. 45, l 17-19 and p. 48, l. 13-17. Failure to stop at a red light is a traffic violation in Colorado. See, C.R.S. § 42-4-603, Obedience to official traffic control devices. Officer Titus also articulated his probable cause when he testified that he personally observed the Neon speed south on Sheridan (Exhibit A-4, p. 42, l. 24, 25) at what Plaintiff describes as between 80 and 90 miles per hour (Exhibit A-3, p. 76, l. 2023) and through the residential neighborhood on Warren Street at about 80 miles per hour as he followed it (Exhibit A-3, p. 82, l. 17-20) in violation of the lawful speed limits. See, C.R.S. 42-4-1101, Speed limits. Probable cause also existed when Officer Titus, after hearing the police dispatch call about the felony menacing with a gun and description of the perpetrator that drove from the scene, observed the Neon coming from the direction of the crime as it passed through his headlights being driven by an individual resembling the perpetrator. Exhibit A-4, p. p. 43, l. 1-4, and p. 51, l. 20-24. Police officers are entitled to rely on the reasonable information relayed to them from a police bulletin. United States v. Hensley, 469 U.S. 221, 231, 83 l.Ed.2d 604, 105 S.Ct. 675 (1985). Thus, it was objectively reasonable for Officer Titus' to rely on the dispatchers report of a serious crime and that, coupled with his personal observation of a suspect that resembled the dispatcher's description coming from the direction of the crime, was sufficient to lead him to reasonably believe that an occupant of the car may have committed a crime. Probable cause also existed when Plaintiff failed to obey Officer Titus commands to stop when he got out of the Neon and attempted to run from the scene on Harlan Street. Failure to obey a lawful police order violates Denver Revised Municipal Code

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§ 38-31, Interference with police authority. Exhibit A-4, p. 63, l. 5-11 and p. 64, l. 2-5. In Illinois v. William, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), the Court found probable cause to exist where the defendant fled upon seeing police officers patrolling an area known for crime. "Headlong flight ­ wherever it occurs ­ is the consummate act of evasion; it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such." Id. at U.S. 125. Plaintiff can not legitimately assert that Officer Titus did not have probable cause because he was a passenger in the Neon and not the driver. At the very least, probable cause arose when Plaintiff elected to flee when he got out of the car and disregard the officer's order to stop. Thus, he committed the consummate act of evasion justifying probable cause for his arrest. Illinois v. William, supra. There is no room for a difference of opinion concerning the existence of probable cause in this case based on the undisputed facts given the totality of the circumstances. Officer Titus articulated the reasonable basis for each of his suspicions that crimes had been committed and each of these suspicions provide the basis for probable cause. Accordingly, summary judgment in appropriate and Plaintiff's Fifth, Sixth and Seventh Claims should be dismissed as a matter of law. B. PLAINTIFF'S PROBABLE CAUSE CLAIM IS BARRED BY HECK V. HUMPHREY Where a 42 U.S.C. § 1983 civil rights claim for damages necessarily questions the findings in state court criminal proceedings, the Plaintiff must first prevail in the state court criminal matter before a § 1983 claim for damages may be raised. See, Heck v. Humphrey, 512 U.S. 477, 480, n. 2, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994).

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Here, Plaintiff alleges an unreasonable seizure against Titus. This claim for relief requires Plaintiff to call into question findings from the criminal case in which he did not prevail by showing a lack of probable cause. See, United States v. Smith, 797 F.2d 836, 840 (10th Cir. 1996); Taylor v. Meachum, 82 F.3d 1556, 1561 (10th Cir. 1996). It is undisputed that Plaintiff entered into a plea agreement in his criminal case, thereby pleading guilty and establishing probable cause for his arrest. See, Exhibit A-3, p. 187, l. 24, 25, and p. 188, l. 1-10. Because Plaintiff did not prevail in his criminal case but in fact pled guilty to a criminal charge, Plaintiff should be collaterally estopped from proceeding with his probable cause claim premised upon 42 U.S.C. § 1983. 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 AND MUNICIPAL LIABILITY. The Eight Claim for Relief alleges supervisory and municipal liability against Denver under 42 U.S.C. § 1983. Plaintiff supports this claim by alleging, in pertinent part, that Denver is authorized to make policies regarding the use of force in making arrests and police officer conduct when contacting citizens and conducting investigations (Third Amended Complaint, p. 9, ¶ 51); Denver's police department policies sanctioned the unlawful use of force and led to plaintiff's injuries in violation of the United States Constitution (Third Amended Complaint, p. 9, ¶ 52); Defendant Officer Titus followed the police department's policies, procedures and customs of the Denver K-9 unit in this case (Third Amended Complaint, p. 9, ¶ 53); Officer Titus' actions were reviewed by superior officers and cleared in an internal investigation (Third Amended Complaint, p. 9, ¶ 54); and., that Denver's actions violated the Fourth, Eighth and Fourteenth Amendments of the United States Constitution (Third Amended Complaint, p. 6, ¶ 26

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and p. 9, 10 ¶ 55). Denver denies that the Department's policies sanction the unlawful use of force or violate the constitution and laws of the United States and State of Colorado. Supervisory Liability As a threshold matter, the law is clear that municipal liability can not be found when there is no underlying constitutional violation by an officer. Williams v. City and County of Denver, 99 F.3d 1009, 1018 (10th Cir.1996) To make a prima facie showing of municipal liability under § 1983 on a supervisory liability claim, the Plaintiff must show that "an affirmative link exists between the [constitutional] deprivation and either the supervisor' personal participation, his exercise of control or direction, or his failure s to supervise. Meade v. Grubbs, 841 F.2d 1512, 1527 (10th Cir. 1988). See also, Woodward v. The City of Worland, 977 F.2d 1392, 1400 (10th Cir.1992), (Supervisor liability requires allegations of personal direction or of actual knowledge and acquiescence.) 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). The Plaintiff can not meet his burden of production in this case because he can not present any competent evidence to support any of the elements of this claim. Plaintiff can not identify any supervisory personnel that personally participated in the events complained of, exercised control or direction or failed to supervise in this case. Likewise, Plaintiff can not show that an affirmative link exists between the constitutional violations alleged in the Complaint and either the supervisor' personal participation, his s exercise of control or direction, or his failure to supervise. Thus, Summary Judgment for Denver and against Plaintiff on the Eight Claim for Relief should be granted.

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Municipal Liability Based ­ Policy, Procedure or Custom Denver agrees that it is vested with the authority to by state law to make policy on the use of force to make arrests and the force used by canines in making arrests as alleged in the Complaint. Third Amended Complaint, p. 9, ¶ 51. However, Plaintiff can not present any competent evidence to support his allegation in the Complaint that Denver's policies sanction the unlawful use of force. Third Amended Complaint, p. 9, ¶ 52. It is well established that the touchstone of a 1983 action against a governmental entity is an allegation that official policy is responsible for deprivation of rights protected by the Constitution. Monell v. Dept. of Social Servs., 436 U.S. 658, 690, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). Municipalities can be held liable only when an injury was inflicted by execution of a government' policy or custom, whether made by its s lawmakers or by those whose edicts or acts may fairly be said to represent official policy. Id. U.S. at 694. There must be "a direct causal link between a municipal policy or custom and the alleged constitutional deprivation." City of Canton v. Harris, 489 U.S. 378, 385, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989). Plaintiffs' conclusory allegations in the Complaint failed to identify any specific official policy or custom pertinent to support his claim that Denver's policies sanction the unlawful use of force. Plaintiff cannot identify any official policy or custom of Denver which caused an alleged deprivation of his constitutional rights and can not present any competent evidence that there is a direct causal link between Denver's policies and any alleged constitutional deprivation. Finally, contrary to the allegation in the Complaint, Plaintiff's retained expert, Roger Willard, can not identify an unconstitutional policy and custom. To the contrary, Mr. Willard testified at his deposition that it is not his opinion

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that the Denver Police Department K-9 policy was insufficient or deficient or that Officer Titus followed a policy which was not sound. Exhibit A-5, Deposition of Roger L. Willard, p. 115, l. 6-13. Plaintiff can not identity an unconstitutional policy or custom in this case and can not demonstrate a direct causal link between Denver's policies and any alleged constitutional deprivation. Accordingly, summary judgment on the Eighth Claim is appropriate. 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 4th day of November, 2005. 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 4th day of November, 2005, 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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