Free Appellant's Opening Brief - District Court of Colorado - Colorado

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Case Number 06-1094 IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

ESTATE OF LYLE EUGENE LARSEN,

Plaintiff/Appellant, v. RANDY M URR, GERALD WHITMANN, and CITY AND COUNTY OF DENVER, Defendants/Appellees.

APPELLANT'S OPENING BRIEF

Appeal From the Judgment of the United States District Court for the District of Colorado The Honorable Marcia S. Krieger, Presiding

Andrew B. Reid, Attorney WALTER L. GERASH LAW FIRM, P.C. 1439 Court Place Denver, CO 80202 Tel: 303-825-5400 ATTORNEYS FOR APPELLANT

ORAL ARGUMENT IS REQUESTED

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I. TABLE OF CONTENTS I. II. III. IV. V. VI. TABLE OF CONTENTS .............................................. TABLE OF AUTHORITIES ....................................... JURISDICTIONAL STATEMENT ................................ STATEMENT OF THE ISSUE PRESENTED ................... STATEMENT OF THE CASE ...................................... STATEMENT OF RELEVANT FACTS .......................... A. The Larsen Shooting ............................................... B. Policy, Training, and Supervision ............................... C. Less Lethal Weapons and Alternatives to Deadly Force .... VII. SUMMARY OF ARGUMENT ...................................... VIII. ARGUMENT ............................................................ A. Review and Summary Judgment Standards .................. B. First Claim - Excessive Force by Officer Murr ............... C. Second Claim - Unconstitutional Policy or Practice ......... D. Third Claim - Inadequate Training and Supervision ........ IX. CONCLUSION ......................................................... 1 2 4 4 5 6 6 9 12 15 17 17 18 24 28 32

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II. TABLE OF AUTHORITIES Allen v. Muskogee, Okla., 119 F.3d 837 (1997) .............. 17-20, 24, 28-29, 31 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ............................................. 18

Blossom v. Yarbrough, 429 F.3d 963 (10th Cir. 2005) .......................... 21, 22 Brown v. Gray, 227 F.3d 1278 (10th Cir. 2000) ................................. 28, 31

Carr v. Castle, 337 F.3d 1221 (10th Cir. 2003) ...................................... 22 City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) ............................................ 4, 5, 25, 28, 31 Craighead v. Lee, 399 F.3d 954 (8th Cir. 2005) ....................................... 23 Estate of Larsen v. Murr, 2006 WL 322602 (D.Colo. 2006) ........................ 20 Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ................................................. 19, 20, 32 Jiron v. City of Lakewood, 392 F.3d 410 (10th Cir. 2004) ...................... 21, 22 Medina v. Cram, 252 F.3d 1124 (10th Cir. 2001) ......................... 21-23, 26, 30 Monell v. New York City Dept. of Soc. Serv., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ........................................ 4, 5 Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417,
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136 L.Ed.2d 347 (1996) .......................................................... 19 Peoples v. Kimmey, 2003 WL 21143107 (10th Cir. 2003) ........................... 26 Romero v. Bd. of County Comm'rs, 60 F.3d 702 (10th Cir. 1995) .............. 21, 23 Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) .......................................................... 19 Sevier v. City of Lawrence, 60 F.3d 695 (10th Cir. 1995) ................ 18, 21, 2324 Sudac v. Hoang, 378 F.Supp.2d 1298 (D.Kan. 2005) ................................ 23 Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) .................................................. 19-20, 24, 27 Zuchel v. Spinharney, 890 F.2d 273 (10th Cir. 1989) ........................ 18, 20, 21 Zuchel v. City and County of Denver (Zuchel II), 997 F.2d 730 (10th Cir. 1993) .................................................... 29

42 U.S.C. §1983 ............................................................................ 4
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F.R.Civ.P. 56 ........................................................................... 4, 18 F.R.A.P. 3 ................................................................................... 3 F.R.A.P. 4 ..................................................................................... 3

III. JURISDICTIONAL STATEMENT This is an action pursuant to 42 U.S.C. §1983 and against an officer of the Police Department of the City and County of Denver ("Denver") for excessive force and deprivation of life in the shooting death of Lyle Eugene Larsen by the police officers in violation of the Fourth and Fourteenth Amendments to the United States Constitution. The action also alleges claims against Denver for an unconstitutional policy, practice, or custom under Monell v. New York City Dept. of Soc. Serv., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) and for Denver's failure to adequately train and supervise the police officers under City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).

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This appeal is brought pursuant to F.R.A.P. Rules 3 and 4 from the final Order and Judgment of the District Court entered on February 10, 2006, granting summary judgment to each of the Defendants / Appellees. The Notice of Appeal was filed with this Court on March 9, 2006. IV. STATEMENT OF THE ISSUE PRESENTED The sole issue in this appeal is whether Plaintiff / Appellant demonstrated that a genuine issue of material fact existed precluding the granting of summary judgment under F.R.Civ.P. Rule 56 as to each claim and defendant.

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V. STATEMENT OF THE CASE This action arises out of the shooting death of Lyle Larsen on April 15, 2003, by a Denver police officer. Intoxicated (Doc. 41 (E14, p.2)), Mr. Larsen had called the Denver Police Department stating that was intending to commit suicide if he did not receive help. He then stood outside his residence, knife in hand, and waited for officers to arrive. Immediately upon the arrival of Denver police officers, one of the officers, Defendant Randy Murr ("Murr"), shot and killed Mr. Larsen. On December 2, 2003, the Estate of Lyle Eugene Larsen ("Estate") through its personal representative, filed this action in state court alleging violations of the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. The action also alleges claims against Denver for an unconstitutional policy, practice, or custom under Monell v. New York City Dept. of Soc. Serv., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) and for Denver's failure to adequately train and supervise the police officers under City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). On December 22, 2003, the Defendants removed the action to the United States District Court of Colorado. Following discovery, the Defendants moved for summary judgment. On February 10, 2006, the District Court granted summary judgment to

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the each of the Defendants and entered its final Order and Judgment. The Plaintiff Estate now appeals from the Order and Judgment of the District Court. VI. STATEMENT OF RELEVANT FACTS A. The Larsen Shooting 1. On April 15, 2003, at a little before 1 a.m., Officer Murr and Officer

David Brase ("Brase"), in separate vehicles, responded to a dispatch informing them that a man at 3325 Navajo Street was suicidal and wanted to kill himself. Docket Number ("Doc.") 41 (Plaintiff's Summary Judgment Exhibit ("E")1; E2; E10, 4; E11, 4; E12, 130:3-18). In responding to the dispatch, neither Officer nor dispatch called for a CIT officer, a psychologist or crisis worker, nor an officer with a Taser, a beanbag shotgun, or any other "less lethal" weapon. Doc. 41 (E2; E:3; E12, 153:7-13, 177:7-19). 2. At the time Officer Murr arrived at the residence, he was equipped with

a semi-automatic weapon with 23 rounds and 1 in the chamber, with another semiautomatic weapon in his vest, with a bullet-proof vest, and with a baton or nunchakus. Doc. 41 (E12, 142:22-25, 143:1-20, 144:9-13, 145:5-22). As he approached, he scoped out the area for other persons who might be a danger to him or others and saw no one. Doc. 41 (E12, 35:13-23, 159:16-25, 160:1-8). 3. Officer Murr did not feel threatened as he approached the residence.
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Doc. 41 (E12, 160:9-15). He walked past a trucked parked in the street (Doc. 41 (E4; E8) and a street light pole (Doc. 41 (E4; E7; E12, 10:14-17, 11:13-19)), both of which were very near the spot where he eventually stopped and shot and which would have provided Officer Murr cover from a person with a knife. 4. As Officer Murr approached, he observed Mr. Larsen standing in front

of the residence with a knife in hand and then drew his service revolver. Doc. 41 (E12, 152:13-24). Officer Murr did not look for cover when he saw Mr. Larsen with the knife because he did not feel threatened at that time. Doc. 41 (E12, 162:1-6, 164:12-25). Officer Brase approached the residence from the opposite direction and, with is service revolver drawn, was a similar distance from Mr. Larsen. Doc. 41 (E10, DPD.Larsen 00325; E11). 5. Between Officer Murr and Mr. Larsen, from the point where Officer

Murr had stopped and would subsequently shoot, there were bushes in the yard (Doc. 41 (E4; E5; E7)), a 3-foot retaining wall (Doc. 41 (E4; E5; E7)), a concrete stairway containing six steps through the concrete retaining wall from the sidewalk to the landing in front of the Larsen residence (Doc. 41 (E4; E5; E7)), a tall iron railing through the middle of the steps through the retaining wall (Doc. 41 (E4; E5; E7), and the open space containing the steps through the retaining wall and the iron railing in the middle of the steps (Doc. 41 (E4; E5; E7)).
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6.

Officers Brase and Murr told Mr. Larsen to put the knife down and Mr.

Larsen bent down as if to put the knife on the ground and then straighten up with the knife still in his hand. Doc. 41 (E12, 162:7-13). It was at that point in time that Officer Murr stated that he was first in fear of physical harm from Mr. Larsen and fired his service revolver killing Mr. Larsen. Id. 7. Immediately, prior to being shot, all Mr. Larson did was stand up, raise

his hand, and, at 15-20 feet away, turn towards Officer Murr without saying anything at all (Doc. 41 (E12: 165: 1-3), and without making any motion or taking any steps towards Officer Murr or Officer Brase (Doc. 41 (E10, DPD Larsen 00325)). In the contemporaneous sworn statement given to the Department, Officer Murr testified that he shot and killed Mr. Larsen immediately when Mr. Larsen turn to face him. Id. Officer Murr made no mention of Mr. Larson stepping towards him or lunging at him. Id. 8. Two years later, when Officer Murr gave his deposition in this matter,

Officer Murr change his testimony and stated that Mr. Larson had begun to step towards him at the time he shot Mr. Larson. Doc. 41 (E12, 156: 4-9; 164: 3-25). Notably, Officer Murr could not recall whether it was a fast or slow, big or little, step. Doc. 41 (E12: 16-25). 9. Officer Brase did not shoot. Doc. 41 (E15; E24).
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10.

Officer Murr did not recall specifically where he was standing at the time

he shot Mr. Larsen but indicated that he was in a general area near the street light pole, 15-20 feet from Mr. Larson. Doc. 41 (E4; E12:8-12 (Exhibit 1 thereto); E12: 8:1-7; E16, 36:12-16). At the time he was shot, Mr. Larsen was standing at the foot of the south side of the porch to his residence. Doc. 41 (E4; E6). 11. 12. Mr. Larsen had not engaged in any crime. Doc. 41 (E16, 46:9-23). Officer Murr received a Distinguished Service Cross from the

Department and Chief Gerald Whitman ("Whitman") for shooting and killing Mr. Larsen. Doc. 41 (E12, 181:2-25, 182:1-4; E18, 60:15-25, 61:1-4). Officer Brase was not rewarded for his restraint from shooting Mr. Larsen. 13. The Department ruled that the shooting of Mr. Larsen by Officer Murr

was within the Department's use of deadly force policy. Doc. 41 (E21, 7:19-23). B. Policy, Training, and Supervision 14. Defendant Whitman became Chief of the Department in 2000 (Doc. 41

(E17, 103:18-22)) and as Chief was responsible for the management policies, direction, and planning of the Denver Police Department (Doc. 41 (E17, 13:22-25, 14:1-6, 14:20-24)) and the approval of the polices and procedures of the Department (Doc. 41 (E17, 27:14-25, 28-32, 33:1-8).

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15.

For the years prior to 1995, the Department did not maintain a

computerized database of police shootings by its officers. Doc. 41 (E17, 137:4-8; E6, 9:9-25, 12:10-22, 14:13-16, 20:18-21, 25:1-6; E18). Although Denver nationally ranks high in the rate of shootings per officer, the Department had not investigated nor taken any measures to address this problem. Doc. 41 (E6, 103:11-25; 104:1-13). 16. On April 15, 2003, the Department's formal "use of force" policy

consisted of a set of "options" available to patrol officers, including, in increasing degree of force, voice commands, hand restraint techniques, mace, baton, carotid compression, and use of a firearm. Doc. 41 (E19, 5-9, 30:13-23, 32:2-13, 39:4-9, 44:7-8). 17. The use of force options training did not changed significantly from

1974 through April 15, 2003, except in the use of force policy changes of November, 2002, regarding implementation of less lethal technologies. Doc. 41 (E19, 27:1-21, 30:13-23, 32:2-13, 39:4-9, 44:7-8, 56:20-25, 57:1-5, 83:1-9, 94:11-20; E21, 12:1019). The training of the Department reflected the policy of the Department on the use of force. Doc. 41 (E18, 13:19-25, 14:1-3; E19, 26:10-19, 37:7-18, 67:10-12, 83:1012, 93:20-24, 94:7-10, 94:21-25, 95:1-2). 18. Officers were taught to make a threat assessment in regard to different

degrees of danger from a sharp-edged weapon (Doc. 41 (E31 (02461 and 03024))),
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and that they may use a firearm to defend the officer or a third person against a person the officer reasonably believes is going to use imminent deadly force against the officer or the third person. Doc. 41 (E19, 81:15-25; 82:1-9; E33; E26; E27). Officers were taught that the officer must have the perception that his life is in imminent jeopardy or he or someone else may suffer serious bodily injury. Doc. 41 (E19, 93:16-19; E26; E27). 19. Officers were trained in a "21-foot Rule," that a person with a knife on

level ground within 21 feet may be able to reach the officer before the officer can withdraw his firearm from its holster and shoot the subject (Doc. 41 (E19, 104:9-19; E31; E32). However, Denver officers were not trained in varying scenarios or any other scenarios at all regarding the 21-foot Rule (Doc. 41 (E19, 104:9-19, 106:15-25; E31, E32)). Officers were not trained on how far a suspect had to be if officer's firearm was already drawn and aimed at a suspect with a knife. Doc. 41 (E19, 104:919, 106:15-25; E31, E32). Officers were taught that they are always in imminent danger of deadly injury if they are within 21 feet of a suspect with a knife. Doc. 41 (E12, 112:16-21). 20. In considering whether or not to use a firearm in a response to a subject

with a knife, officers were taught to be aware of their footing so that the officer can move away from his position if necessary (Doc. 41 (E19, 95:3-25, 96:1-15, 100:213

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11)) and to create as much distance as possible between the officer and the subject holding a knife (Doc. 41 (E19, 24:13-25, 25:1-4)). 21. Officers were taught to consider the existence and location of "cover"

in determining whether or not to use a firearm. Doc. 41 (E19, 96-113). Officers were taught that "cover" is limited to something that would stop a bullet (Doc. 41 (E12, 39:16-25, 40:1-13; E19, 113:5-17; E25)), and received no training as to what kinds of cover an officer needs with respect to a knife (Doc. 41 (E12, 39:16-25, 40:1-13; E19, 97:1-24, 99:1-5, 113:5-17; E20, 37:3-7; E25)). 22. Suicidal situations occur fairly frequently, sometimes a daily or weekly

occurrence. Doc. 41 (E12, 62:22-25, 63:1-4; E18, 45:24-5, 46:1-3). 23. The Department had no procedures or training specifically on handling

persons suspected to be suicidal. Doc. 41 (E22, 30:13-20, 32:3-14, 33:5-23, 34:1-9, 40:23-25, 41:1-10, 42:24-25, 43-47, 48:1-2). Officers were taught to respond to a suspect with a weapon in the same manner, whether that person is suicidal or not. Doc. 41 (E12, 56:4-25, 57:1-10; E20, 17:4-14, 32:3-24; E21, 21:6-22, 23:12-23, 24:12-20). 24. Specialized CIT training was given by the Department to a few officers

directed at dealing with suicidal and mentally ill persons. Doc. 41 (E12, 60:12-14, 61:1-9, 61:22-25, 63:5-10, 64:3-13; E18, 46:4-7; E20, 21:11-25, 22).
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25.

Dispatchers were not trained to call an officer with a Taser or other less

lethal weapon to a scene involving a person who is potentially suicidal. Doc. 41 (E20, 25:12-22). C. Less Lethal Weapons and Alternatives to Deadly Force 26. Denver police officers were taught to use the minimum amount of

intervention to gain compliance of a subject. Doc. 41 (E12, 64:14-21, 68:3-17; E19, 14:1-14; E26 (02751)). However, officers were not trained in any alternative means of restraint other than the use of a deadly force when confronting a suspect with a knife within 21 feet. Doc. 41 (E12, 18-22). 27. Prior to April 15, 2003, there was an urgency within the Department to

deploy weapons "less lethal" than firearms because it could save lives. Doc. 41 (E17, 88:7-14). Between February, 2000, and April 15, 2003, the Department established a working group to consider the deployment of various less lethal weapons. Doc. 41 (E17, 87:22-25, 88:1-10; 39:22-25; 40:1-8; E18, 15:3-24; E20, 61:6-25, 62:1-3). In 2002, the Department selected for deployment to patrol officers the Taser, less-lethal shotgun (known as a "bean-bag shotgun"), pepper ball system, and the 40mm less lethal system, and for SWAT the shield. Doc. 41 (E17, 40:15-19). 28. In "hands" training, officers learned hand techniques for disarming

someone with a firearm who is facing the officer. Doc. 41 (E19, 57:19-25, 58, 59:115

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6, 61:12, 63:13-22, 65:11-25, 66:1-3; E29). Although referred to in the training materials, Officers were not taught hand techniques for disarming someone with a knife (known as "red knife" training"). Doc. 41 (E12, 3-10, 51:23-25, 52:1-8, 71:1-3; E19, 65:25, 66:1-3; E20, 39:19-25, 40:21; E29). 29. A baton can be used to disarm a subject with a knife. Doc. 41 (E28

(02767); E31 (03023). Officers were trained that the appropriate baton strike areas include the lower parts of a subjects arms. Doc. 41 (E12, 76:4-25, 77; E28 (02770)). However, the Department did not train officers to use a baton to disarm a subject with a knife. Doc. 41 (E12, 71:4-7;, 71:17-25, 72:1-22 75:22-25, 76:1, 78:6-10; E19, 72:14-17). 30. Tasers may be used in response to a suspect having a knife. Doc. 41

(E12, 120:7-25, 121, 122:1-9; E20, 53:7-14). The range of a Taser is 18 feet. E20, 51:10-14. 31. Chief Whitman was aware of the use of the Taser by law enforcement prior to 2000. Doc. 41 (E17, 86:7-12). The Department first deployed the Taser in April, 2003. Doc. 41 (E17, 41:3-9; E18, 25:15-25, 26:1; E20, 52:3-11). Officer Murr received Taser training in March, 2003. Doc. 41 (E12, 10-18). Officer Murr used a Taser in another incident on May 6, 2003. Doc. 41 (E12, 118:11-25, 119:1-21). 32. A less lethal or "bean-bag" shotgun is particularly appropriate for use
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in a situation where a suspect is armed with a knife and in "suicide-by-cop" situations. Doc. 41 (E12, 80:17-25; E30). A less lethal shotgun has a range of 18-20 feet. Doc. 41 (E12, 81:1-12). 32. The less-lethal shotgun was made available by the Department to SWAT

prior to 2000. Doc. 41 (E17, 41:10-20; E18, 22:18-25, 23:1). The less-lethal shotgun was deployed to patrol officers by the Department at the end of 2003. Doc. 41 (E17, 41:10-20). 33. The pepper ball gun, deployed for limited use in 2002, could be used in

dealing with a suspect armed with a knife. Doc. 41 (E20, 54:4-25, 55:1-21). A police dog could be used when an officer is confronted by a suspect with a knife. Doc. 41 (E18, 39:17-24; E20, 71:20-23). The Department considered and rejected the use of a net although other police departments were using it. Doc. 41 (E19, 135:19-25, 136:1-17). 34. The Department established a Crisis Intervention Team ("CIT") program

in 2000 to deal with mentally disturbed or potentially suicidal persons. Doc. 41 (E17, 73:9-25, 77:1-22). CIT officers were first put on the street by the Department in 2003. Doc. 41 (E17, 80:3-22). VII. SUMMARY OF ARGUMENT

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The standards regarding summary judgment, the Constitutional use of deadly force by police officers, and the Constitutional adequacy of police policy, training, and supervision have been well established for many years and are not challenged here. In granting summary judgment to the Defendants, the trial court below made a finding as to each claim and each Defendant that there were no genuine issues as to any material facts. This appeal challenges that determination and is, thus, heavily fact based. Appellant urges the Court to closely review the photographs and police diagram of the scene (Doc. 41 (E3-E9)) which show the many physical barriers and the distance between Mr. Larsen and Officer Murr at the time of the shooting. Regarding the Fourth and Fourteenth Amendments excessive force claims against the individual Defendant, Officer Murr (Doc. 1 (First Claim), the Plaintiff Estate presented evidence that, under the totality of the circumstances, Officer Murr was not under an imminent threat of seriously bodily injury at the time he used deadly force against Mr. Larson and that, therefore, the use of deadly force was not objectively reasonable. As this material and essential fact was genuinely in dispute, summary judgment could not issue. The Second Claim (Doc. 1) states a Monell claim against Denver for an unconstitutional policy, practice, or custom regarding the use of force by its officers in confrontations with suspects having sharp-edged weapons. On this Claim, the
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Plaintiff Estate first demonstrated above that there were genuine issues of material facts as to a Constitutional violation by Officer Murr in the use of deadly force against Mr. Larsen. The Estate further presented uncontested evidence from Denver's own Chief and supervisory officers that Denver was well and long aware of the Constitutional problems created by its policy and practice which taught its officers that they were always in imminent danger of harm when within 21 feet of a suspect armed with a knife, regardless of the surrounding circumstances. The Estate then presented uncontested evidence that the Department's policy and practice taught its officers to use deadly force, again regardless of the circumstances, and caused the death of Mr. Larsen. The Estate, therefore, has produced evidence showing that this policy and practice of the Department is unconstitutional. Claim Three (Doc. 1) states a claim against Denver for inadequate training and supervision of its officers. The Estate submitted uncontested evidence that with deliberate indifference to the lives and well-being of its residents, Denver failed to timely and properly implement the changes needed to correct its unconstitutional policy on the use of deadly force in all situations of officers confronting suspects with knives. Particularly, the Department failed to train its officers in the appropriate use of "hands" and batons to disarm suspects with knives and failed timely deploy and train its officers in the use of less-lethal weapons, particularly those such as the taser,
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bean-bag shotgun, pepper ball shotgun, and net, each specifically designed for and particularly useful in disarming and restraining persons with knifes. The Estate presented evidence that these failures caused the death of Lyle Larsen. VIII. ARGUMENT A. Review and Summary Judgment Standards The Court of Appeals reviews the grant of summary judgment de novo and applies the same legal standard used by the District Court under Rule 56(c). Allen v. Muskogee, Okla., 119 F.3d 837, 839 (1997). Summary judgment is appropriate only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. F.R.Civ.P. Rule 56(c); Allen, 119 F.3d at 839. "A disputed fact is `material' if it might affect the outcome of the suit under the governing law, and the dispute is `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2509 , 91 L.Ed.2d 202 (1986)." Allen, 119 F.3d at 839. The factual record and reasonable inferences therefrom must be construed in the light most favorable to the nonmovant. Allen, 119 F.3d at 839-40. The "one-

sided" officer's version of the facts, unless undisputed, cannot be used. Zuchel v. Spinharney, 890 F.2d 273, 275 (10th Cir. 1989) ("It makes no difference that [the
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officer's] view of the evidence is supported by the majority of the witnesses whose testimony was submitted to the district court at the summary judgment stage. Neither we, nor the district court, are entitled to weigh the evidence or pass on the credibility of witnesses in deciding summary judgment issues." (citing Anderson)). See also, Sevier v. City of Lawrence, 60 F.3d 695, 700 (10th Cir. 1995). B. First Claim - Excessive Force by Officer Murr In granting summary judgment in favor of Defendant Officer Murr as to the excessive force claim, the District Court held that he had qualified immunity. There is a two-pronged test for deciding questions of qualified immunity at the summary judgment stage. The Estate must show that (1) Officer Murr violated a constitutional or statutory right; and (2) the right was clearly established at the time of Officer Murr's unlawful conduct. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). "[T]here can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment." Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985); Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ("objective reasonableness standard"). However, "[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the
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officer or to others, it is not constitutionally unreasonable to prevent the escape by using deadly force." Garner, 471 U.S. at 11. Reasonableness must be assessed from the perspective of a reasonable officer on the scene. Graham, 490 U.S. at 396-7; Allen, 119 F.3d at 840. The reasonableness of the use of force is evaluated by examining the "totality of circumstances" of the particular seizure. Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996); Allen, 119 F.3d at 840. In this analysis, among the factors to be considered are: (1) the severity of the crime; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight. Graham, 490 U.S. at 396-7. Also to be considered as part of the totality of circumstances, is the officer's own reckless or deliberate conduct during the seizure that unreasonably created the need to use such force. Graham, 490 U.S. at 395; Garner, 471 U.S. at 8; Allen, 119 F.3d at 840-1. The facts set forth above demonstrate that there are at least genuine issues of essential material facts as to whether Officer Murr was under a threat of serious physical injury at the moment he shot and killed Mr. Larsen. First, even the District Court acknowledged that the distance between Officer Murr and Mr. Larson was disputed by the evidence and that there could have been as much as 20 feet between
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them. Doc. 41 (E3, E4, E5, E6, E8, E12 (Exhibit 1 thereto); E12: 165:1-3); E16 (36:12-16)); Estate of Larsen v. Murr, 2006 WL 322602, *1 (fact 9) (D.Colo. 2006).

In Zuchel, for example, this Court compared the "one-sided" testimony of the officer and others that the suspect with the knife was 3 ½ feet away with the testimony of one witnesses that they were 10-12 feet apart. Zuchel, 890 F.2d at 275. The Court held that this dispute over distance was one of the material facts and genuine issues that precluded summary judgment. Id. Obviously, the Court reasoned that, as a "material fact," at 10-12 feet apart a jury could find that the officer was not under imminent threat of physical injury from the suspect with the knife. Here Officer Murr and Mr. Larson were almost twice that distance. Certainly, then, if the fact of that distance was material in Zuchel, it is even more so here. Distance, for example, is a critical distinguishing factor between Zuchel and this case with the circumstances in the Court's recent decision in Jiron v. City of Lakewood, 392 F.3d 410, 412 (10th Cir. 2004) (about 5 feet apart) and in Romero v. Bd. of County Comm'rs, 60 F.3d 702, 703 (10th Cir. 1995) (assaulted the officer with the knife); see also, Blossom v. Yarbrough, 429 F.3d 963, 965-6 (10th Cir. 2005) (reaching for officer's gun); and Medina v. Cram, 252 F.3d 1124, 1127 (10th Cir. 2001) (8-10 feet with what was thought to be a gun).
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The Court in Zuchel also held that whether or not the suspect was "charging" or lunging at the officer at the time of the use of deadly force was a question of material fact which, being at issue, precluded summary judgment. Zuchel, 890 F.2d at 275. Obviously, common sense dictates that if a person with a knife is not lunging or charging at the officer, there is a genuine issue as to whether or not an objectively reasonable officer would perceive himself to be in imminent danger of serious physical injury. Id. In Sevier the Court noted that evidence that the knife holding suspect "did not lunge at [the officer] with a knife" was a "highly material fact" in dispute which precluded summary judgment on qualified immunity. Sevier, 60 F.3d at 700-1. In the case at bar, Officer Murr's own sworn contemporaneous testimony was that Mr. Larson did not move towards him from up to 20 feet away, but only turned to face him. Doc. 41 (E12, 165:1-3). Even in his deposition testimony two years later, Officer Murr stated that - again from as much as 20 feet away - Mr. Larson turned to face him and may have taken one step when Officer Murr shot and killed him. Doc. 41 (E12, 156:4-9, 164:3-25). Officer Murr's recollection was quite vague and he could not even recall if the step was fast or slow. Id. Given Mr. Larsen's severely intoxicated condition, it was almost certainly very slow if it occurred at all.

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There is absolutely no evidence that Mr. Larsen ever move quickly, ever charged, or ever lunged at Officer Murr or anyone else. The photos of the scene alone conclusively demonstrate that it would have been physically impossible for Mr. Larson to charge or lunge at Officer Murr because in his drunken state he would have had to leap over the concrete stairwell and the even higher iron handrail, traverse around a large bush in the way, and then descend the 4-foot retaining wall to reach Officer Murr. Doc. 41 (Exhibits 3-9). As in Zucher, his evidence that the suspect did not lunge or charge the office, is another very important material fact which distinguishes this case from the Court's prior decisions in Blossom (429 F.3d at 965), Jiron (392 F.3d at 412), Carr v. Castle (337 F.3d 1221, 1225 (10th Cir. 2003)), Medina (252 F.3d at 1127), and Romero (60 F.3d at 703). See also, e.g., Sudac v. Hoang, 378 F.Supp.2d 1298, 1302 (D.Kan. 2005). As the Court stated in Sevier: "The reasonableness of Defendants' actions depends both on whether the officers were in danger at the precise moment they used force and on whether the Defendants' own reckless or deliberate conduct during the seizure unreasonably created the need to use such force." Sevier, 60 F.3d at 699 (emphasis supplied); see also, Medina, 252 F.3d at 1132 ("The primary focus of our inquiry, therefore, remains on whether the officer was in danger at the exact moment

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of the threat of force.") (emphasis supplied); Craighead v. Lee, 399 F.3d 954 (8th Cir. 2005). The most telling circumstance that Officer Murr was not in immediate danger at that exact moment is the fact that Officer Brase - who also had his gun drawn and pointed at Mr. Larson from a similar distance - did not fire. Even if he did not perceive that he himself was in danger, as a police officer he was trained to shoot if another officer was in immediate danger. His decision not to shoot is a

contemporaneous statement through his conduct that, as a trained and reasonable police officer, he did not perceive Mr. Larson as immediately endangering Officer Murr at the "precise moment" Officer Murr shot and killed Mr. Larson. Finally, an additional distinguishing factor, is that there was no crime in this case. Mr. Larson was merely standing there with the knife and had not said anything nor threatened anyone. As in Sevier, the officers had arrived merely to assist a suicidal person and not to make an arrest for a crime. Sevier, 60 F.3d at 698. There being no crime, under the first Graham factor of reasonableness, "severity of the crime," the need for lethal force was at its lowest in this case. It has been shown that the second and third factors, "immediate threat" and "resisting arrest" or fleeing, were also not met. There was no justification for, and no objective reasonableness in, Officer Murr's use of deadly force.
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It was established by the United States Supreme Court since Garner over 20 years ago and by the numerous decisions of this Circuit mentioned above, that, where there is no immediate threat of serious bodily injury, the officer may not use deadly force in restraining a suspect. Therefore, Officer Murr was not entitled to qualified immunity or summary judgment. Garner, 471 U.S. 1; Allen, 119 F.3d 837; Sevier, 60 F.3d 695; Zuchel, 890 F.2d 273. C. Second Claim - Unconstitutional Policy or Practice - Monell Plaintiff Estate established above the constitutional violation by Officer Murr which is predicate to stating a claim for an unconstitutional policy or practice under Monell. The facts set forth in Section VI above further provide evidence that Denver has an unconstitutional policy and practice that trains its police officers to use deadly force whenever an officer is within 21 feet of a knife-holding suspect, regardless of the surrounding circumstances and regardless of whether or not an imminent threat of serious physical to the officer or anyone else actually exists. Following the shooting and killing of Mr. Larsen by Officer Murr, the Shoot Board for the Police Department investigated the shooting and determined that Officer Marr's use of deadly force was in accordance with Denver's use of force policy. Doc. 41 (E21, 7:19-23). In fact, Denver awarded Officer Murr a Distinguish Service Cross for killing the intoxicated, non-threatening, Mr. Larsen with his semi27

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automatic weapon while standing up to 20 feet away and across the stairwell, railing and bush, while wearing body armor and having cover from another officer. Doc. 41 (E12, 181:2-25, 182:1-4; E18, 60:15-25, 61:1-4). Officer Brase was ignored by the Department for not shooting Mr. Larsen. The Denver Police Department's representatives, including its Chief, testified that the training by the Department on sharp-edged weapons and the use of deadly force reflected the policy of the Department. Doc. 41 (E18, 13:19-25, 14:1-3; E19, 26:10-19, 37:7-18, 67: 10-12, 83:10-12, 93:20-24, 94:7-10, 94:21-25, 95:1-2); see, City of Canton, 489 U.S. 378. The policy through training starts with the "21-Foot Rule" whereby the officers are trained that, if they are within 21 feet of a knifeholding suspect, they are always (Doc. 41 (E12, 112:16-21)) in imminent danger of serious physical injury. Doc. 41 (E19, 104:9-19; E31; E32). The officers are not trained in varying circumstances, such as here where there are barriers or where obstacles between the officer and the suspect (Doc. 41 (E19, 104:9-19, 106:15-25; E31, E32)), or the officer's gun is already drawn and aimed at the suspect (Doc. 41 (E19, 104:9-19, 106:15025; E31, E32). Thus, the officers are not trained to use anything but deadly force when confronting a knife-holding suspect within 21 feet. Doc. 41 (E19, 81:15-25; 82:1-9; E33; E26; E27). Not only are officers not trained in using discretion in such
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situations, they are trained that there is no discretion to exercise since every such situation by definition creates a potentially deadly force response. Although "cover," "red knife" training, a baton, a taser, a bean-bag shotgun, a pepper-ball gun, a police dog, and a CIT officer, are all recognized, effective, less-lethal alternatives to the use of a deadly firearm in this situation, Denver knowingly and intentionally does not train its officers to use any of these less-lethal methods. Denver leaves its officers to rely solely upon deadly firearms as a sole recourse to someone holding a knife within 21 feet. See, Facts 21, 24, 25 and Section VI.C. above; also, Medina, 252 F3d at 1127 (bean-bag shotgun and police dog used by the Colorado Springs Police Department in 1996 to subdue suicidal person who had a knife); Peoples v. Kimmey, 2003 WL 21143107 (10th Cir. 2003) (bean-bag shotgun and pepper spray used to subdue suspect with knives). Officer Murr himself used a taser and a bean-bag shotgun - issued to him after the Larson shooting - to subdue a suspect who had attacked a hotel clerk with a knife. Doc. 41 (E12, 120:7-25, 121, 122:1-5). That suspect lived. Id. By giving Officer Murr no other alternative than lethal force, the policy of Denver effected by its training caused the death of Mr. Larsen. This is closely analogous to the situation presented to the Supreme Court in Garner when it first enunciated the rule on the use of deadly force. In Garner, the state of Tennessee had
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a deadly force statute and the City of Memphis a Police Department policy that authorized the use of deadly force by a police officer against a fleeing felon, even when the felon did not pose an immediate threat of serious physical injury to the officer or anyone else. Writing for the high Court, Justice Byron White reviewed the history and surveyed the use of deadly force by police and held that the Tennessee statute and City policy were unconstitutional to the extent it authorized the use of deadly force where the police officer was not under an imminent threat of serious physical injury. Garner, 471 U.S. 1. Similarly, because the Departmental policy on the use of deadly force by officers when within 21 feet of a knife-holding suspect, as effected through its training, does not strictly limit such use to imminent threats of serious physical injury, the policy is unconstitutional. As Denver's Shoot Board formally ruled, the conduct of Officer Murr in shooting and killing Mr. Larson under such circumstances was within the policy and training of the City and its Police Department, Denver's policy caused the death of Mr. Larsen. D. Third Claim - Inadequate Training and Supervision The previous section demonstrated that the training of police officers - or the inadequacy thereof - can amount to a constitutional violation by a municipality. City of Canton, 489 U.S. 378; Brown v. Gray, 227 F.3d 1278, 1286 (10th Cir. 2000).
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In order to prevail on a claim against a municipality for failure to train its police officers in the use of force, a plaintiff must first prove the training was in fact inadequate, and then satisfy the following requirements: (1) the officers exceeded constitutional limitations on the use of force; (2) the use of force arose under circumstances that constitute a usual and recurring situation with which police officers must deal; (3) the inadequate training demonstrates a deliberate indifference on the part of the city toward persons with whom the police officers come into contact, and (4) there is a direct causal link between the constitutional deprivation and the inadequate training. Brown, 227 F.3d at 1286 (citing, Allen, 119 F.3d at 841-2; and City of Canton, 489 U.S. at 389-91). Satisfaction of the first City of Canton was shown in the section on Officer Murr's conduct above, which demonstrated that Officer Murr exceeded constitutional limitations on the use of force. As evidenced by the caselaw cited from this Circuit alone, the use of force including deadly force when confronting a knife-holding suspect is a usual and recurring situation which police officers must deal. Over 10 years ago, this Circuit specifically held such situations facing Denver police officers to be usual and recurring. Zuchel v. City and County of Denver (Zuchel II), 997 F.2d 730, 737-8 (10th Cir. 1993). The situations are sufficiently usual and recurring that the Police Department offers some specific training - the 21-foot Rule and use of deadly force training discussed above - on the situation. Similarly, Denver police officers frequently confront situations where a person is suicidal or heavily intoxicated and
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armed, "sometimes a daily or weekly occurrence." Doc. 41 (E12, 62:22-25, 63: 1-4; E18, 45:24-5, 46:1-3). In Allen, this Court held these situations to be usual and recurring. Allen, 119 F.3d at 842. As with sharp-edged weapons, the armed suicidal or intoxicated person situations are sufficient usual and recurring that the Denver Police Department offers specific training on them to some of its officers, the CIT Officers. Doc. 41 (E12, 60:12-14, 61:1-9, 61:22-25, 63:5-10, 64:3-13; E18, 46:4-7; E20, 21:11-25, 22). The second requirement is thus satisfied as well. The Department's inadequate training was also discussed above in the Section IV Statement of facts and in the previous section, particularly in regards to the lack of adequate or complete absence of any training on how to distinguish when a knife situation is imminently dangerous, or on the proper use of discretion and less-lethal responses to knife-holding suspects. Long before Officer Murr shot and killed Mr. Larson, Denver had notice of the inadequacies in its training. Denver did not maintain a computerized database of shootings by its officers until 1995. Section IV.B, Fact 15 above. Although Denver consistently ranked very high nationally in the rate of shootings per officer, the Department had not investigated or taken any measures to address this problem. Id. The use of force training had not substantively changed in 30 years. Section IV.B., Fact 17 above. Although less-lethal weapons specifically designed for knife situations had long been available to Colorado police
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(see, Medina, 252 F.3d at 1126-7) and Chief Whitman was fully aware of them (Doc. 41 (E17, 86:7-12)), Denver was excruciatingly slow in deploying them amount its officers on the street. Section IV.C., Facts 27, 31-34. In 2000, three years before Officer Murr killed Mr. Larson, Denver finally began looking at less-lethal alternatives. Id. Three years later, the Police Department still had not deployed these life-saving weapons to its officers in the field, largely restricting the weapons to its specialized SWAT team. Id. Sadly, Officer Murr was finally issued a taser and a bean-bag shotgun a few weeks after the Larson shooting. Section IV.C., Facts 31 and 32. Chief Whitman admitted during his testimony that prior to the Larson shooting, there was an urgency within the Department to deploy weapons less lethal and firearms because it would save lives. Doc. 41 (E17, 88:7-14. The evidence that Denver had long been aware that there was an obvious need to overhaul its use of force policies, particularly in regards to the use of deadly force. Where the "the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, ...the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to present a policy for which the city is responsible, and for which it may be held liable if it actually causes injury." Allen,
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119 F.3d at 842; see also, City of Canton, 489 U.S. at 390, 1205; Brown, 227 F.3d at 1288-9. As in Brown, the Chief of Police here was personally aware of the problem and chose to ignore it. Brown, 227 F.3d at 1289. For years prior to the death of Lyle Larsen, Denver and its Chief of Police was deliberately indifferent to its endemic police shooting problem and its dire need to overhaul its policy on use of force, use of deadly force, and knife confrontations. For years, the Denver and its Chief did little or nothing to address this problem and Mr. Larsen died as a result. On April 15, 2003, Denver had failed to provide Officer Murr the proper training or the proper law enforcement tools essential to address the frequently occurring situations of suicidal or intoxicated persons with knives. And, as Chief Whitman acknowledged, the delay cost lives. Thus, there is a direct causal link between the constitutional deprivation of Mr. Larson and the inadequate training and supervision of Officer Murr. Plaintiff Estate has submitted evidence in support of its constitutional failure to train sufficient that a jury could find for the Estate. Summary judgment as to this Third Claim is therefore precluded as well. IX. CONCLUSION

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Wherefore, for the reasons stated above, the final Order and Judgment of the District Court below should be reversed and this matter remanded for further proceedings and the trial on the merits of the Appellant's / Plaintiff's claims.

Cases such as this are heavily fact driven. Graham, 490 U.S. at 396. Due to the complexity of the factual circumstances, particularly in regards to the issues of unconstitutional policy and constitutionally inadequate training, it is believed that oral argument will likely assist the Court in aligning or distinguishing this case from prior holdings of the Court. The Appellant, therefore, respectfully requests that the Court entertain oral argument.

WALTER L. GERASH LAW FIRM, P.C. s/ Andrew B. Reid Andrew B. Reid, Esq. 1439 Court Place Denver, CO 80202 Tel: 303.825.5400 Fax: 303.623.2101 Email: [email protected] FOR THE APPELLANT ESTATE OF LYLE EUGENE LARSON

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Certificate of Compliance with Type-Volume Limitation As required by Fed. R. App. P. 32(a)(7)(C), I certify that this brief is proportionately spaced and contains 6,991 words, exclusive of the table of contents, table of citations, and any certificates of counsel. 9 I relied on my word processor to obtain the count and it is Word processing software. I certify that the information on this form is true and correct to the best of my knowledge and belief formed after a reasonable inquiry.

s/ Andrew B. Reid Andrew B. Reid

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Certificate of Service The undersigned certifies that on this 12th day of May, 2006, he deposited two copies of the above Opening Brief with the U.S. Mail, first-class postage prepaid, addressed as follows: Thomas S. Rice, Esq. Brett A. McDaniel, Esq. Senter, Goldfarb & Rice, LLC 1700 Broadway, Suite 1700 Denver, CO 80290 John M. Eckhardt, Esq. Assistant City Attorney 201 West Colfax Ave., Dept. 1108 Denver, CO 80202

s/ Andrew B. Reid Andrew B. Reid

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