# James v. Chavez

> District Court, D. New Mexico · November 9, 2011 · 830 F. Supp. 2d 1208

URL: https://www.frixlaw.com/law-library/cases/8694522

## Case

- **Full name:** Theresa JAMES, as wrongful death estate representative for Jay Murphy Sr., and as custodial parent and next friend of her daughter, M., a minor v. Martin CHAVEZ, III, individually and in his official capacity as Mayor of the City of Albuquerque, Ray Schultz, individually and in his official capacity as Chief of Police of the City of Albuquerque, Russell Carter, individually and in his official capacity as an officer of the Albuquerque Police Department "S.W.A.T." Team, Michael Fox, individually and in his official capacity as an Officer (Detective) of the Albuquerque Police Department, City of Albuquerque, as an Albuquerque Police Department, a municipal entity organized under the laws of the State of New Mexico and its law enforcement agency, Josh Brown, an Officer of the Albuquerque Police Department, individually
- **Court:** District Court, D. New Mexico
- **Decided:** November 9, 2011
- **Citations:** 830 F. Supp. 2d 1208; 2011 U.S. Dist. LEXIS 133337; 2011 WL 5822726
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Browning
- **Judges:** Browning
- **Cited by:** 36 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8694522

## How later opinions describe it (automated extraction)

- concluding that exigent circumstances justified an officer’s decision to order a SWAT team to enter the decedent’s house when the officers “had a variety of corroborating circumstances to indicate that Murphy Sr. could harm someone, including their own personal observations,” …
- concluding that the use of deadly force did not shock the conscience even if the suspect did not have an intent to harm the officer, because the officer “had sufficient facts before him to conclude that there was a threat of serious physical harm” and the “courts must evaluate…
- finding that the use of deadly force did not shock the conscience even if the suspect did not have an intent to harm the officer, because the officer “had sufficient facts before him to conclude that there was a threat of serious physical harm” and the “courts must evaluate a …
- finding that the use of deadly force did not shock the conscience even if the suspect did not have intent to harm the officer, because the officer “had sufficient facts before him to conclude that there was a threat of serious physical harm” and the “courts must evaluate a [go…
- recognizing that effective law enforcement requires that "police officers can act on directions and information transmitted by one officer to another."

## Opinion text

MEMORANDUM OPINION AND ORDER
JAMES O. BROWNING, District Judge.
THIS MATTER comes before the Court on the City Defendants’ Motion for Partial Summary Judgment No. I: Dismissal of Plaintiffs Fourth and Fourteenth Amendment Excessive Force Claims Against Officer Carter and Fourteenth Amendment Equal Protection Claim, filed August 16, 2011 (Doc. 103) (“MSJ”). The Court held a hearing on October 4, 2011. The primary issues are, with respect to the claims against Defendant Russell Carter, whether the Court should enter summary judgment against Plaintiff Theresa James on her: (i) unlawful entry claims; (ii) excessive force claims asserted under a Fourth Amendment theory (Count IV and V); (iii) excessive force claims asserted under a substantive due-process theory (Count IV and V); and (iv) Equal Protection Clause claims against Carter and the rest of the Defendants. The Court will grant the Motion for Summary Judgment. The Court will enter summary judgment on the excessive-force claims asserted under a Fourth Amendment theory as Carter did not seize either James Murphy Sr. or Mariah Murphy within the meaning of the Fourth Amendment. Because James’ unlawful entry claims are not in the Amended Complaint, and because James would have to move to amend to add these claims to the case, the Court will deny leave to amend. Granting leave to amend on the unlawful entry claims would be futile. Pursuant to the parties’ agreement that the Court can address these unlawful entry claims, the Court will enter summary judgment on James’ unlawful entry claims as exigent circumstances justified Carter’s conduct in *1218 ordering the SWAT raid and his conduct was reasonable. The Court will enter summary judgment on James’ excessive force claims asserted under a substantive due-process theory because Carter’s conduct does not shock the conscience. The Court will enter summary judgment on James’ Equal Protection Clause claims against Carter and the other Defendants as James has agreed to voluntary dismissal of those claims.
FACTUAL BACKGROUND
While James disputes one of the Defendants’ allegedly undisputed facts, almost all of the material facts are undisputed. See Plaintiffs Response in Opposition to Defendants’ First Motion for Summary Judgment (Doc. No. 103) at 2-3, filed September 12, 2011 (Doc. 123) (“Response”). More specifically, James disputes only one of the Defendants’ facts—whether Murphy Sr. threatened his daughter. See Response at 2-3. Additionally, James asserts that some of the Defendants’ facts are not material. See Response at 2-3. 1 James also provides several additional material facts in her Response. The Defendants do not specifically controvert these additional material facts in their Reply. See Reply to Response to City Defendants’ Motion for Partial Summary Judgment No. I: Dismissal of Plaintiffs’ Fourth and Fourteenth Amendment Excessive Force Claims Against Officer Carter and Fourteenth Amendment Equal Protection Claim, filed September 19, 2011 (Doc. 135) (“Reply”). The Court then assumes the additional facts in the Response to be true for the purposes of this Motion for Summary Judgment. See D.N.M.LR-Civ. 56.1(b) (“The Reply must contain a concise statement of those facts set forth in the Response which the movant disputes or to which the movant asserts an objection____ All material facts set forth in the Response will be deemed undisputed unless specifically controverted.”).
On June 5, 2007, at approximately 1:37 p.m., Arturo Bandera telephoned the Albuquerque Police Department (“APD”) communications operator from his residence located at 1613 Spence, SE. See Deposition of Arturo Bandera at 37:23-25 (taken July 28, 2011), filed August 16, 2011 (Doc. 103-1) (“Bandera Depo.”). Bandera informed the APD operator that the decedent in this matter, Murphy Sr., was standing at Bandera’s front door armed with a knife. See Bandera Depo. at 38:3-7. In addition, Bandera stated that the suspect’s actions were causing him to fear for his safety and requested that APD respond quickly. See Bandera Depo. at 38:9-12. Immediately following Bandera’s call to the APD communications operator, Murphy Sr. left the area in a green Dodge four-by-four pick-up truck with a government license plate. See Albuquerque Police Department Interview of Jay Murphy Jr. at 7:14-18 (dated June 5, 2007), filed August 16, 2011 (Doc. 103-2) (“Murphy Jr. Interview”); Albuquerque Police Department Interview of Mariah Murphy at 7:7-12 (dated June 5, 2007), filed August 16, 2011 (Doc. 103-3) (“M. Murphy Interview”).
Upon receiving Bandera’s call, APD dispatched APD Officer Leonard Holloway to respond to Bandera’s call. See Albuquerque Police Department Supplemental Re *1219 port of Officer Leonard Holloway at 1 (dated June 5, 2007), filed August 16, 2011 (Doc. 103-^1) (“Holloway Supplemental Report”). Upon his arrival in the area, Holloway observed an individual matching the description of the suspect traveling southbound on University Blvd. SE, near Gibson Blvd. SE, in a green Dodge pick-up truck. See Holloway Supplemental Report at 1. Furthermore, Holloway observed the driver of the green Dodge pick-up truck waving a knife while traveling southbound on University near Gibson. See Holloway Supplemental Report at 1. While in motion, Holloway observed the driver of the vehicle throw a full bottle of beer out the vehicle’s window. See Holloway Supplemental Report at 1. Ultimately, the driver turned the vehicle westbound on Spence SE and parked in the driveway of 1608 Spence SE. See M. Murphy Interview at 7:11-12. The driver of the vehicle, later identified as Murphy Sr., exited the truck and proceeded towards the front door of 1608 Spence SE, where Holloway observed Murphy Sr. holding a knife. See Murphy Jr. Interview at 8:13-20; M. Murphy Interview at 7:1-14. Murphy Sr. yelled at Officer Holloway and ran into his residence. See Holloway Supplemental Report at 1. Additional APD officers began to arrive on the scene, as Holloway had previously requested additional assistance. See Holloway Supplemental Report at 1.
Shortly thereafter, APD Crisis Intervention Team (“CIT”) Officer Nicholas Sanders arrived at the scene to assist Officer Holloway. Holloway Supplemental Report at 1; Albuquerque Supplemental Report of Officer Nicholas Sanders at 1 (dated June 5, 2007), filed August 16, 2011 (Doc. 103-5) (“Sanders Supplemental Report”). Moments before Sanders’ arrival, Murphy Sr.’s son, Jay Murphy Jr., exited 1608 Spence SE in an attempt to advise the police of Murphy Sr.’s emotional state. See Murphy Jr. Interview at 7:20-8:4; Holloway Supplemental Report at 1; Sanders Supplemental Report at 1. Because Murphy Jr. was a potential witness, and for Murphy Jr.’s own safety, Holloway placed Murphy Jr. in the rear seat of his patrol car. See Holloway Supplemental Report at 1; Murphy Jr. Interview at 12:9-12. Approximately ten minutes after Sanders arrived at the scene, Murphy Sr. stepped out of the residence holding a twelve- to fourteen-inch knife, a boom box radio, and a beer bottle. See Sanders Supplemental Report at 1. Murphy Sr. told the officers to release his son or someone would get hurt. See Sanders Supplemental Report at 1. While holding these items, Murphy Sr. approached Sanders. See Sanders Supplemental Report at 1. Instead of complying with Sanders’ command, Murphy motioned as if he was going to throw the boom box radio or the beer bottle at Sanders. See Sanders Supplemental Report at 1.
The third officer to arrive on scene, APD Officer George Trujillo, also witnessed Murphy Sr. in front of 1608 Spence SE holding a knife and yelling in an irate manner. See Holloway Supplemental Report at 1; Sanders Supplemental Report at 1; Albuquerque Police Department Supplemental Report of Officer George Trujillo at 1 (dated June 5, 2007), filed August 16, 2011 (Doc. 103-6) (“Trujillo Supplemental Report”). As Murphy Sr. moved toward Sanders, Murphy Sr. threw a full bottle of beer at Trujillo. See Trujillo Supplemental Report at 1. The beer bottle broke in front of Trujillo, striking him with broken glass and beer. See Trujillo Supplemental Report at 1. Murphy Sr. then threw the boom box radio at officers, but missed striking them. See Trujillo Supplemental Report at 1. Afterward, Murphy Sr. retreated behind a wrought iron front door at 1608 Spence SE, continuing to ignore commands by officers to drop the knife. See Holloway Supplemental Report at 1; Sanders Supplemental Report at 1; *1220 Trujillo Supplemental Report at 1. After Murphy Sr. retreated into his residence, Sanders used his patrol vehicle’s public address (“PA”) system to instruct Murphy Sr. to exit his residence without any weapons and his hands in the air. See Holloway Supplemental Report at 1; Sanders Supplemental Report at 1. In response, Murphy Sr. yelled back in an aggressive manner, threatening the APD officers. See Holloway Supplemental Report at 1; Sanders Supplemental Report at 1. While this verbal exchange took place, Trujillo observed a teenage female, 2 M. Murphy, look out of the front window. See M. Murphy Interview at 12:2-5; Trujillo Supplemental Report at l. 3 After noticing M. Murphy in the window, Sanders used the PA to direct Murphy Sr. to release M. Murphy, but Murphy Sr. refused. See Sanders Supplemental Report at 1; Trujillo Supplemental Report at 1; Deposition of Mariah Murphy at 79:16-20 (taken July 29, 2011), filed August 16, 2011 (Doc. 103-7) (“M. Murphy Depo.”).
While M. Murphy stood next to Murphy Sr. at the front door of the residence, Trujillo began face-to-face negotiations with Murphy Sr. See Trujillo Supplemental Report at 1. Officer Trujillo watched M. Murphy attempt to walk past Murphy Sr., who was standing at the front door. See Trujillo Supplemental Report at 1. Murphy Sr. grabbed M. Murphy by her arm and pulled her back into the residence stating, ‘You’re not going anywhere.” See Trujillo Supplemental Report at l. 4 *After arriving on scene and assessing the situation, APD Sergeant Terre Molander requested the assistance of the APD Special Weapons and Tactics (“SWAT”) team. See Albuquerque Police Department Supplemental Report of Sergeant Terre Molander at 1 (dated June 5, 2007), filed August 16, 2007 (Doc. 103-8) (“Molander Supplemental Report”). At approximately 1:55 p.m., the APD communication’s supervisor instructed Acting SWAT Lieutenant Robert Johnston to call Molander on his cell phone. See Albuquerque Police Department Supplemental Report of Acting Lieutenant *1221 Robert Johnston at 1 (dated June 5, 2007), filed August 16, 2007 (Doc. 103-9) (“Johnston Supplemental Report”). Johnston contacted Molander, who advised Johnston that the officers needed SWAT assistance at 1608 Spence SE immediately. See Johnston Supplemental Report at 1. After speaking with Molander, Johnston contacted SWAT Sergeant Tim Gaunterman, who subsequently paged the APD SWAT team and directed them to respond to the incident taking place at 1608 Spence SE. See Johnston Supplemental Report at 1.
After Trujillo’s verbal exchange with Murphy Sr. ended, Sanders took over the negotiations and requested that Murphy Sr. release M. Murphy. See M. Murphy Interview at 11:4-7; Sanders Supplemental Report at 1; Trujillo Supplemental Report at 2; M. Murphy Depo. at 112:2-11. Upon their arrival, SWAT officers relieved the patrol officers of their inner perimeter responsibilities. See Holloway Supplemental Report at 1; Sanders Supplemental Report at 1; Trujillo Supplemental Report at 1. As APD CNT members arrived, these CNT officers replaced the patrol officers who were speaking with Murphy Sr. See Sanders Supplemental Report at 2. Meanwhile, the SWAT team began to develop an emergency hostage rescue plan. See Albuquerque Police Department Interview of Officer Russell Carter at 14:3-16:7 (dated June 5, 2007), filed August 16, 2011 (Doc. 103 -10) (“Carter Interview”). Additionally the entry team took positions on the east side of the target residence. See Carter Interview at 12:13-15.
The chain of command at the scene was Johnston, the acting Lieutenant who was the tactical commander in charge of the scene, and Gaunterman, who was in charge of the entry decision. See Deposition of Charles D. Hedrick at 5:6-6:8, filed September 12, 2011 (Doc. 123-1) (“Hedrick Depo.”). In Gaunterman’s absence, Officer Charles Hedrick was the entry team leader. See Hedrick Depo. at 5:6-6:8. The chain of command did not include Defendant Russell Carter. See Deposition of Officer Russell Carter at 10:1-15, filed September 12, 2011 (Doc. 123-2) (“Carter Depo. # 2”). Shortly after Carter arrived at the scene, he decided to “pick up the ball and run with it.” Carter Depo. # 2 at 10:1-15. Carter did so by not asking for permission to take additional action, but by telling entry team leader Hedrick what he was going to do. See Response at ¶ 3, at 3 (setting forth this fact); Reply at 1 (not disputing this fact). At the time Carter put himself in charge, he knew that there had been some negotiations with the people in the house, but he did not know who had conducted these negotiations, what progress had been made, or what had been said. See Carter Depo. #2 at 7:10-9:6.
Defendant APD SWAT Officer Josh Brown was the point man on the entry team. See Deposition of Officer Russell Carter at 41:13-20 (dated July 25, 2011), filed August 16, 2011 (Doc. 103-11) (“Carter Depo.”). APD Officer Carter, entered 1612 Spence SE and took a position in a west side, upstairs bedroom. See Carter Interview at 20:12-22:11. 1612 Spence SE is adjacent to and immediately east of 1608 Spence SE. See Carter Interview at 22:3-11. From the second story window on the west side of 1612 Spence SE, Carter could see directly into the second story bedroom of 1608 Spence SE. See Carter Interview at 22:3-11. During the time that Carter was positioned at 1612 Spence SE, Carter was able to observe Murphy Sr. and M. Murphy who were both located in M. Murphy’s second story bedroom at 1608 Spence SE. See M. Murphy Depo. at 123:24-124:14; Carter Interview at 25:3-9. Carter’s understanding was that he could not legally order a warrantless entry and SWAT team assault into the home unless there was an immediate threat of death to someone inside the home. See Carter *1222 Depo. #2 at 11:23-12:10. Specifically, in M. Murphy’s case, Carter’s understanding was that an immediate or imminent threat would exist if she was in the same room and in close proximity to Murphy Sr. See Carter Depo. #2 at 14:3-19. Likewise, Carter understood that he could not shoot at and try to kill Murphy Sr. unless the same circumstances existed which would justify ordering the SWAT assault. See Response ¶ 7, at 4 (setting forth this fact); Reply at 1 (not disputing this fact). Carter understood that Murphy Sr. might use deadly force in trying to defend his home from a SWAT invasion, and knew that absent exigent circumstances, such self-defense is a homeowner’s right. See Carter Depo. # 2 at 19:6-22.
James’ police procedures expert, Robert Jones, testified that, before Carter fired a shot at Murphy Sr., Carter knew that Murphy Sr. had committed the inherently violent crime of aggravated assault against Bandera. See Deposition of Robert Jones at 166:24-167:5, 167:10-14 (taken July 26, 2011), filed August 16, 2011 (Doc. 103-12) (“Jones Depo.”). Jones also testified that, before Carter fired his shot at Murphy Sr., Carter knew that Murphy Sr. committed the violent crime of false imprisonment against M. Murphy. See Jones Depo. at 166:16-18, 167:15-19. Carter stated that he did not know what crimes, if any, Murphy Sr. had committed. See Carter Depo. # 2 at 7:10-9:6. 5 Before Carter fired his shot at Murphy Sr., Carter knew that Murphy Sr. was armed with a dangerous weapon—a knife. See Jones Depo. at 169:1-13. While Murphy Sr. and M. Murphy were upstairs, Murphy Sr. asked M. Murphy to bring him a glass of water. See M. Murphy Depo. at 122:15-18. To retrieve the glass of water, M. Murphy exited the bedroom and proceeded down a hallway, which shared an adjoining wall with M. Murphy’s room, and led to the top of a staircase that descended to the first floor where the kitchen is located. See M. Murphy’s Depo. at 125:18-126:8. As M. Murphy walked through the hallway, an interior wall concealed her from the view of Murphy Sr. and Carter. See M. Murphy Depo. at 125:25-127:8. Similarly, the interior wall prevented M. Murphy from seeing Murphy Sr. and Carter as she walked through the hallway. See M. Murphy Depo. at 125:25-126:8.
Carter then fired one round from his rifle. See Carter Interview at 32:17-33:1. Carter aimed this shot at Murphy Sr. See Carter Interview at 33:10-12. This round did not strike Murphy Sr. or M. Murphy and did not cause them any physical injuries. See MSJ ¶ 52, at 10 (setting forth this fact); Response at 2-3 (not disputing this fact). As M. Murphy walked through a hallway to the stairs, a bullet pierced through the wall and almost struck her. See M. Murphy Depo. at 126:18-127:7. Although the trajectory of the bullet was close to M. Murphy, Officer Carter’s round did not strike M. Murphy or cause her any physical injuries. See M. Murphy Depo. at 131:2-7. After the bullet struck another wall, M. Murphy ran downstairs and into the kitchen of her house. See M. Murphy Depo. at 131:8-16. At the time Carter decided to use deadly force to try and shoot Murphy Sr., Carter thought Murphy Sr. was closing the distance in the upstairs bedroom towards M. Murphy, with the *1223 knife raised over his head. See Carter Depo. #2 at 21:5-15, 23:6-14. Carter thought M. Murphy was still in the room and in Murphy Sr.’s and the knife’s immediate vicinity when he decided to use deadly force. See Carter Depo. # 2 at 23:6-14, 24:4-19. 6 Carter admits that he was not authorized to use deadly force if M. Murphy was not in the room at that time. See Carter Depo. #2 at 24:4-19. Although Hedrick, the team entry leader, has tried to say that he felt M. Murphy was in imminent danger such that exigent circumstances existed to order the SWAT assault once she closed the window and went upstairs, he has also admitted that, up until the time Carter took action, circumstances had not risen to the level that would justify the assault. See Hedrick Depo. at 25:16-25. When Hedrick entered the Murphy home, there were so many SWAT team members on the stairs that he could not go up the stairs. See Hedrick Depo. at 30:11— 18. He then turned to the kitchen where he found M. Murphy. See Hedrick Depo. at 31:13-23. Brown, the lead SWAT team member, dropped a flash bang “as he led to [sic] other officers up the stairs,” which occurred “well after M. Murphy had gone down the stairs into the kitchen.” Response ¶ 14, at 5 (citing City Defendants’ Motion for Partial Summary Judgment No. II: Dismissal of the Estate’s Fourth Amendment Excessive Force Claim Against Officer Brown ¶ 18, at 5, filed August 16, 2011 (Doc. 104) (admitting this fact)).
Paramedic David A Weaver was also upstairs in the house next door with Carter. See Deposition of David A. Weaver at 32:11-24, filed September 12, 2011 (Doc. 123-3) (“Weaver Depo.”). Weaver contends that he saw Murphy Sr. attacking M. Murphy with a knife when Carter fired. See Weaver Depo. at 32:11-24. Weaver states that he was starting to pull the trigger on his weapon at the moment Murphy Sr. was attacking M. Murphy with the knife, but stopped at that instant, because that is when the flash bangs went off. See Weaver Depo. at 33:24-34:8. Specifically, Weaver remembers that immediately after Carter shot at Murphy Sr., Weaver pulled down the blinds, used his weapon to break some glass out of his way, trained his weapon on Murphy Sr. who was attacking M. Murphy as she was falling, and prepared to fire when the flash bangs went off. See Weaver Depo. at 35:4-36:25. Weaver testified that only a few seconds passed between Carter’s shot and the flash bangs going off, at which time M. Murphy was in the room, falling down under her father’s knife. See Weaver Depo. at 35:4-36:25. M. Murphy asserted that she was not in the room with her father when Carter decided to use deadly force. See Affidavit of Mariah Murphy ¶ 4, at 1, filed September 12, 2011 (Doc. 123-4) (“M. Murphy Aff.”). She had left the room and was on her way down stairs to get her father something to drink when Carter’s shot came through a wall in front of her face. See M. Murphy Aff. ¶ 4-5, at 1. According to Jones, any reasonable law enforcement officer in Carter’s position knew or should have known it was more likely than not that Murphy Sr. would attempt to protect himself, his daughter, and his home with deadly force, and that the SWAT team would likewise respond *1224 with deadly force. See Affidavit of Robert L. Jones ¶ 1, at 1, filed September 12, 2011 (Doc. 123-5) (“Jones Aff”). Carter did not subsequently restrain, arrest, or imprison Murphy Sr. See MSJ ¶ 53, at 10 (setting forth this fact); Response at 2-3 (not disputing this fact). After Carter fired this first shot, he did not have any interaction with Murphy Sr. See MSJ ¶ 54, at 10 (setting forth this fact); Response at 2-3 (not disputing this fact). Jones concluded that Carter’s use of deadly force was unjustified. See Jones Depo. at 160:16-18. Jones did not say in his expert witness report or testify in his deposition that Carter’s use of deadly force shocked the conscience. See MSJ ¶ 55, at 10 (setting forth this fact); Response at 2-3 (not disputing this fact).
Carter did not intend this shot that he fired at Murphy Sr.—a shot that missed— to almost strike M. Murphy. See MSJ ¶59, at 11 (setting forth this fact); Response at 2-3 (not disputing this fact). Carter did not know nor should he have known that the shot he fired at Murphy Sr. would almost strike M. Murphy. See MSJ ¶ 60, at 11 (setting forth this fact); Response at 2-3 (not disputing this fact). Carter did not restrain, arrest, imprison, or otherwise treat M. Murphy as if she was a suspect. See MSJ ¶ 61, at 11 (setting forth this fact); Response at 2-3 (not disputing this fact). Carter did not fire his weapon with intent to harm M. Murphy “or worsen her legal plight.” MSJ ¶ 62, at 11 (setting forth this fact). After Carter fired this first shot, he did not have any interaction with M. Murphy. See MSJ ¶ 63, at 11 (setting forth this fact); Response at 2-3 (not disputing this fact). Carter did not “intentionally seize[] or otherwise willfully acquire[ ] physical control over Mariah.” MSJ ¶64, at 11 (setting forth this fact); Response at 2-3 (not disputing this fact). Defendants Martin J. Chavez, Ray Schultz, and the City of Albuquerque (the “City Defendants”), did not treat these individuals differently than other similarly situated criminal suspects and citizens. MSJ ¶ 65, at 11 (setting forth this fact); Response at 2-3 (not disputing this fact). A racial animus against the Murphy family did not motivate the City Defendants’ actions. See MSJ ¶ 66, at 11 (setting forth this fact); Response at 2-3 (not disputing this fact). A racial animus did not motivate Carter or Brown’s use of deadly force against the Murphy Sr. or M. Murphy. See MSJ ¶ 67, at 11 (setting forth this fact); Response at 2-3 (not disputing this fact).
PROCEDURAL BACKGROUND
On June 6, 2009, James filed her Verified Complaint for Negligence and Civil Rights Abuse (Police Misconduct) Including But Not Limited to Wrongful Death. See Doc. 1 (“Original Complaint”). The Original Complaint was verified. See Original Complaint at 23. On July 2, 2009, James filed her Verified First Amended Complaint for Negligence and Civil Rights Abuse (Police Misconduct) Including But Not Limited to Wrongful Death. See Doc. 3 (“Amended Complaint”); id. at 25 (verification).
On August 16, 2011, the Defendants filed their first Motion for Summary Judgment. In this Motion for Summary Judgment, they seek dismissal of the claims against Carter. See MSJ at 1-2. Specifically, the Defendants argue that Carter’s qualified immunity defense precludes James’ Fourth and Fourteenth Amendment claims. See MSJ at 2. First, the Defendants argue that the Court should enter summary judgment on the Fourth Amendment claims against Carter, because there is no evidence that a seizure of Murphy Sr. or M. Murphy occurred. See MSJ at 2. Second, they argue that neither Murphy Sr. or M. Murphy can state an actionable Fourteenth Amendment excessive force claim, because Car *1225 ter’s decision to fire his weapon does not shock the conscience. See MSJ at 2. Third, they argue that the Court should enter judgment on James’ Equal Protection Clause claims because there is no evidence that the officers treated Murphy Sr., M. Murphy, or James differently than similarly situated suspects and citizens. See MSJ at 2.
On September 12, 2011, James filed her Response to the Defendants’ Motion for Summary Judgment. James contends that Carter’s use of deadly force was not constitutional unless M. Murphy was in imminent mortal danger. See Response at 6. Additionally, James argues that Carter’s use of force was not objectively reasonable under the circumstances. See Response at 7- 8. James did not specifically respond to the Defendants’ argument that no seizure occurred when Carter fired his weapon. James also argues that Carter’s decision to order the SWAT team to enter the home was presumptively unconstitutional and objectively unreasonable. See Response at 8- 10. Furthermore, James argues that Carter’s conduct, specifically his conclusion that exigent circumstances justified the decision to use deadly force against Murphy Sr., shocks the conscious. See Response at 11-13. James did not specifically respond to the Defendants’ argument that no Equal Protection Clause violation occurred.
On September 19, 2011, the Defendants filed their Reply. They argue that James has failed to specifically controvert their Motion for Summary Judgment in the manner that rule 56(e) of the Federal Rules of Civil Procedure and the applicable local rules require, and thus the Court should deem those facts admitted. See Reply at 2-5. They also contend that James cannot create a disputed issue of material fact by putting together her own version of the facts with the Defendants’ version of the facts. See Reply at 5-7. They point out that James has put forward no evidence that Carter intentionally seized M. Murphy or Murphy Sr. See Reply at 7-8. The Defendants also argue that the Court should not consider James’ arguments regarding the officers illegal entry into the Murphy home because James never brought such a claim in her Amended Complaint. See Reply at 8. They also contend that James cannot state an actionable Fourteenth Amendment claim based on Carter’s alleged negligent acts. See Reply at 9-10.
The Court held a hearing on October 4, 2011. At the hearing, James clarified that Murphy Jr. is not asserting any claims against the Defendants and was never joined as a party in the Amended Complaint. See Transcript of Hearing at 5:11— 21 (taken October 4, 2011) (Lyle) (“Oct. 4, 2011 Tr.”). 7 James clarified that her intentions are only to assert individual claims against Carter and that she does not intend to contest dismissal of the individual claims against the other police officers in the case. See Oct. 4, 2011 Tr. at 3:15-21 (Lyle). James did not contest voluntarily dismissing her Equal Protection claims with respect to the Motion for Summary Judgment. See Oct. 4, 2011 Tr. at 22:1-11, 33:25-34:4 (Robles, Court, Lyle). James also clarified that there was no separate Fourteenth Amendment claim beyond the substantive due-process claims that she has asserted. See Oct. 4, 2011 Tr. at 38:1-4 (Court, Lyle).
With respect to the issues raised in the Motion for Summary Judgment, James emphasized that she has conceded only that the officers in the SWAT entry team *1226 did not know that the order they received was illegal. She reiterated that Murphy Sr. had every right to use deadly force to defend himself based on the illegal entry. See Oct. 4, 2011 Tr. at 17:3-15 (Lyle). The Court questioned whether the officers’ subjective intent mattered with respect to the issue whether exigent circumstances existed. See Oct. 4, 2011 Tr. at 18:2-12 (Court). James pointed out that Carter was the one who ordered the SWAT team to enter the home and that, from his perspective, a reasonable officer would not have concluded that exigent circumstances existed. See Oct. 4, 2011 Tr. at 18:13-19:4 (Lyle). The Defendants reiterated that no seizure occurred, because no submission occurred when Carter made a show of force. See Oct. 4, 2011 Tr. at 24:6-15 (Robles). Furthermore, they argue that no seizure occurred, because the bullet Carter fired never hit M. Murphy or Murphy Sr. See Oct. 4, 2011 Tr. at 24:18-23 (Robles). With respect to M. Murphy, the Defendants noted that Carter did not intend to fire at her, but rather to fire at Murphy Sr., which undercuts James’ Fourth Amendment claims. See Oct. 4, 2011 Tr. at 24:21-25:15 (Robles). The Defendants then emphasized that the undisputed facts in this case indicate that no substantive due-process violation occurred with respect to Murphy Sr. See Oct. 4, 2011 Tr. at 25:16-22 (Robles). They contend that Murphy Sr.’s own conduct led to the situation where Carter had to fire his weapon at Murphy Sr. See Oct. 4, 2011 Tr. at 25:16-22 (Robles). With respect to M. Murphy, the Defendants argued that Carter could not see her when he fired the bullet, indicating that he did not intend to direct the bullet at her. See Oct. 4, 2011 Tr. at 26:23-27:3 (Robles).
James sought to distinguish some of the Defendants’ authority regarding seizures based on the factual distinction that Murphy Sr. and M. Murphy were in their home rather in some type of vehicle or public place. See Oct. 4, 2011 Tr. at 29:4-19 (Lyle). James also contended that there were no exigent circumstances justifying Carter’s conduct. See Oct. 4, 2011 Tr. at 29:15-30:23 (Lyle). James argued that a jury should be able to decide the issue of Carter’s intent with respect to his actions. See Oct. 4, 2011 Tr. at 30:5-25 (Lyle). The Defendants reiterated at the hearing that James did not raise her claims regarding the officers’ illegal entry in the home in her pleadings. See Oct. 4, 2011 Tr. at 38:6-39:6 (Robles). James argued that one can glean from the Amended Complaint the assertion of this claim. See Oct. 4, 2011 Tr. at 39:17-19 (Lyle). In the alternative, James asked for leave to amend her Amended Complaint. See Oct. 4, 2011 Tr. at 39:20-25 (Lyle).
At the pre-trial conference on October 28, 2011, the parties agreed that the Court could go ahead and address these unlawful entry claims raised in the Response without requiring James to formally seek leave to amend her Amended Complaint. See Transcript of Hearing at 8:20-10:2 (taken October 28, 2011) (Court, Lyle, Robles) (“Oct. 28, 2011 Tr.”).
LEGAL STANDARD FOR MOTIONS FOR SUMMARY JUDGMENT
Rule 56(c) of the Federal Rules of Civil Procedure states that summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). The movant bears the initial burden of “show[ing] that there is an absence of evidence to support the nonmoving party’s case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991) (internal quotation marks omitted). See Celotex Corp. v. Catrett, 477 U.S. 317, *1227 323 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). Once the movant meets this burden, rule 56(e) requires the non-moving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324 , 106 S.Ct. 2548 ; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986).
The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993) (“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” (internal quotation marks omitted)). Rule 56 provides that “an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must— by affidavits or as otherwise provided in this rule—set out specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e)(2). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his [or her] pleadings.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S.Ct. 2505 . See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980) (“However, ‘once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.’ ” (citation omitted)). Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat’l Ins. Co. v. Omer, No. 07-2123, 2008 WL 2309005 , at *1 (D.Kan. June 2, 2008) (citing Fed.R.Civ.P. 56(e); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.’ ” Colony Nat’l Ins. Co. v. Omer, 2008 WL 2309005 , at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)).
Genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505 . A mere “scintilla” of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505 ). Rather, there must be sufficient evidence on which the fact-finder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448 , 14 Wall. 442 , 20 L.Ed. 867 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539 . “[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 (citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the non-moving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Ra *1228 dio Corp., 475 U.S. 574, 587 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986).
When reviewing a motion for summary judgment, the court should keep in mind three principles. First, the court’s role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 . Second, the court must resolve all reasonable inferences and doubts in favor of the non-moving party, and construe all evidence in the light most favorable to the non-moving party. See Hunt v. Cromartie, 526 U.S. at 550-55, 119 S.Ct. 1545 ; Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”). Third, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., m U.S. at 255, 106 S.Ct. 2505 .
LAW REGARDING QUALIFIED IMMUNITY
Qualified immunity recognizes the “need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.” Harlow v. Fitzgerald, 457 U.S. at 807, 102 S.Ct. 2727 . “Qualified immunity protects federal and state officials from liability for discretionary functions, and from ‘the unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.’ ” Roybal v. City of Albuquerque, No. 08-0181, 2009 WL 1329834 , at *10 (D.N.M. Apr. 28, 2009) (Browning, J.) (quoting Siegert v. Gilley, 500 U.S. 226, 232 , 111 S.Ct. 1789 , 114 L.Ed.2d 277 (1991)). Issues of qualified immunity are best resolved at the “earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S. 223, 230-31 , 129 S.Ct. 808 , 172 L.Ed.2d 565 (2009) (quoting Hunter v. Bryant, 502 U.S. 224, 227 , 112 S.Ct. 534 , 116 L.Ed.2d 589 (1991) (per curiam)).
Qualified immunity shields government officials from liability where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. at 230-31 , 129 S.Ct. 808 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982)). When a defendant asserts qualified immunity at summary judgment, the responsibility shifts to the plaintiff to meet a “heavy two-part burden.” Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.2001). The plaintiff must demonstrate on the facts alleged: (i) that the defendant’s actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged unlawful activity. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.2009).
1. Factual Disputes in the Qualified-Immunity Analysis.
In determining whether the plaintiff has met his or her burden of establishing a constitutional violation that was clearly established, the court construes the facts in the light most favorable to the plaintiff as the non-moving party. See Scott v. Harris, 550 U.S. 372, 378-80 , 127 S.Ct. 1769 , 167 L.Ed.2d 686 (2007); Riggins v. Goodman, 572 F.3d at 1107 (noting that the United States Court of Appeals for the Tenth Circuit “accept[s] the facts and the plaintiff alleges them”). In Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir.2009), the Tenth Circuit explained:
[B]ecause at summary judgment we are beyond the pleading phase of the litigation, a plaintiffs version of the facts must find support in the record: more specifically, “[a]s with any motion for *1229 summary judgment, when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts[.]” York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir.2008) (quoting Scott [v. Harris ], 550 U.S. at 380 , 127 S.Ct. 1769 ); see also Estate of Larsen ex rel Sturdivan v. Murr, 511 F.3d 1255, 1258 (10th Cir. 2008).
Thomson v. Salt Lake Cnty., 584 F.3d at 1312 . “The Tenth Circuit, in Rhoads v. Miller explained that the blatant contradictions of the record must be supported by more than other witnesses’ testimony!!.]” Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1249 (D.N.M.2010) (Browning, J.) (citation omitted).
In evaluating a motion for summary judgment based on qualified immunity, we take the facts “in the light most favorable to the party asserting the injury.” Scott v. Harris, 550 U.S. 372, 377 , 127 S.Ct. 1769 , 167 L.Ed.2d 686 (2007). “[T]his usually means adopting ... the plaintiffs version of the facts,” id. at 378 , 127 S.Ct. 1769 , unless that version “is so utterly discredited by the record that no reasonable jury could have believed him,” id. at 380 , 127 S.Ct. 1769 . In Scott , the plaintiffs testimony was discredited by a videotape that completely contradicted his version of the events. 550 U.S. at 379 , 127 S.Ct. 1769 . Here, there is no videotape or similar evidence in the record to blatantly contradict Mr. Rhoads’ testimony. There is only other witnesses’ testimony to oppose his version of the facts, and our judicial system leaves credibility determinations to the jury. And given the undisputed fact of injury, Mr. Rhoads’ alcoholism and memory problems go to the weight of his testimony, not its admissibility. ... Mr. Rhoads alleges that his injuries resulted from a beating rendered without resistence or provocation. If believed by the jury, the events he describes are sufficient to support a claim of violation of clearly established law under Graham v. Connor, 490 U.S. 386, 395-96 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989), and this court’s precedent.
Rhoads v. Miller, 352 FedAppx. 289, 291-92 (10th Cir.2009) (unpublished) (internal quotation marks omitted). See Lymon v. Aramark Corp., 728 F.Supp.2d at 1249 -50 (quoting Rhoads v. Miller, 352 FedAppx. at 291-92). In a concurring opinion in Thomson v. Salt Lake County, the Honorable Jerome A. Holmes, United States Circuit Judge for the Tenth Circuit, stated that courts must focus first on the legal question of qualified immunity and “determine whether plaintiffs factual allegations are sufficiently grounded in the record such that they may permissibly comprise the universe of facts that will serve as the foundation for answering the legal question before the court” before inquiring into whether there are genuine issues of material fact for resolution by the jury. 584 F.3d at 1326-27 (Holmes, J. concurring) (citing Goddard v. Urrea, 847 F.2d 765, 770 (11th Cir.1988) (Johnson, J., dissenting) (observing that, even if factual disputes exist, “these disputes are irrelevant to the qualified immunity analysis because that analysis assumes the validity of the plaintiffs’ facts.”)).
2. Clearly Established Rights.
In evaluating whether the right was clearly established, the court considers whether the right was sufficiently clear that a reasonable government employee in the defendant’s shoes would understand that what he did violated that right. See Casey v. W. Las Vegas Indep. Sch. Disk, 473 F.3d 1323, 1327 (10th Cir.2007). A clearly established right is generally defined as a right so thoroughly developed and consistently recognized under the law *1230 of the jurisdiction as to be “indisputable” and “unquestioned.” Zweibon v. Mitchell, 720 F.2d 162, 172-73 (D.C.Cir.1983). “Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Currier v. Doran, 242 F.3d 905 , 923 (10th Cir.2001). See Medina v. City & Cnty. of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992). On the other hand, the Supreme Court of the United States has observed that it is generally not necessary to find a controlling decision declaring the “very action in question ... unlawful.” Anderson v. Creighton, 483 U.S. 635, 640 , 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987). “In determining whether the right was ‘clearly established,’ the court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether ‘the contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir.2001) (quoting Saucier v. Katz, 533 U.S. 194 , 202, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223 , 129 S.Ct. 808 , 172 L.Ed.2d 565 (2009)).
The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified-immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand.” 555 U.S. at 235-36 , 129 S.Ct. 808 . The Supreme Court also noted in Pearson v. Callahan that, while no longer mandatory, the protocol outlined in Saucier v. Katz will often be beneficial. See 555 U.S. at 235-36 , 129 S.Ct. 808 . Once the plaintiff has established the inference that the defendant’s conduct violated a clearly established constitutional right, a qualified immunity defense generally fails. See Cannon v. City & Cnty. of Denver, 998 F.2d 867 , 870-71 (10th Cir.1993).
RELEVANT LAW ON THE FOURTH AMENDMENT
The Fourth Amendment to the United States Constitution “protects ‘[t]he right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures.’ ” United States v. Thompson, 524 F.3d 1126, 1132 (10th Cir.2008) (quoting U.S. Const, amend. IV). It also commands that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV. “The security of one’s privacy against arbitrary intrusion by the police—which is at the core of the Fourth Amendment—is basic to a free society.” Wolf v. Colorado, 338 U.S. 25, 27 , 69 S.Ct. 1359 , 93 L.Ed. 1782 (1949), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961).
1. Seizures and Arrests.
“[WJhether a particular seizure is reasonable is dependent on the ‘totality of the circumstances.’ ” Ryder v. City of Topeka, 814 F.2d 1412 , 1419 n. 16 (10th Cir.1987). An arrest constituting a seizure occurs when there is the exercise of a certain degree of physical force or submission to the assertion of authority. See California v. Hodari, 499 U.S. 621, 626 , 111 S.Ct. 1547 , 113 L.Ed.2d 690 (1991). The Tenth Circuit has identified several factors that are relevant in determining whether a person has been seized within *1231 the meaning of the Fourth Amendment. They include:
1) The threatening presence of several officers; 2) the brandishing of a weapon by an officer; 3) some physical touching by an officer; 4) the use of aggressive language or tone of voice indicating that compliance with an officer’s request is compulsory; 5) prolonged retention of a person’s personal effects; 6) a request to accompany the officer to the station; 7) interaction in a nonpublic place or a small, enclosed space; 8) and absence of other members of the public.
Jones v. Hunt, 410 F.3d 1221, 1226 (10th Cir.2005) (internal quotation marks omitted). Additionally, “[violation of the Fourth Amendment requires an intentional acquisition of physical control. A seizure occurs even when an unintended person or thing is the object of the detention or taking, but the detention or taking itself must be willful.” Brower v. Cnty. of Inyo, 489 U.S. 593, 596 , 109 S.Ct. 1378 , 103 L.Ed.2d 628 (1989).
“[A]pprehension 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 , 85 L.Ed.2d 1 (1985). “To determine the constitutionality of a seizure ‘[courts] must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’ ” Tennessee v. Garner, 471 U.S. at 8 , 105 S.Ct. 1694 . The balance of these competing interests is one of the key principles underlying the Fourth Amendment. See Tennessee v. Garner, 471 U.S. at 8 , 105 S.Ct. 1694 . “Because one of the factors is the extent of the intrusion, it is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out.” Tennessee v. Garner, 471 U.S. at 8 , 105 S.Ct. 1694 .
The Tenth Circuit has recognized that the use of a taser on a person, although it does not constitute deadly force, results in a seizure of the victim. See Cavanaugh v. Woods Cross City, 625 F.3d 661, 665 (10th Cir.2010). The Tenth Circuit assumed without deciding that, when a person in a vehicle was shot, but that shot initially failed to stop the person’s progress, that a seizure had occurred. See Thomas v. Durastanti, 607 F.3d 655, 663 (10th Cir.2010) (“Even assuming without deciding Mr. Thomas can meet the seizure element of his claim, however, he cannot show that it was unreasonable.”). The Tenth Circuit noted that the plaintiff in that case’s argument relied on dicta in the Supreme Court’s decision in California v. Hodari to the effect that “the ‘application of physical force to restrain movement, even when it is ultimately unsuccessful’ is a seizure.” Thomas v. Durastanti, 607 F.3d at 663 . On the other hand, when a police officer shot at a person piloting a helicopter, who had been taken hostage at gunpoint and required to assist in the escape, and successfully hit the helicopter once, the Tenth Circuit concluded that no seizure had occurred; the Tenth Circuit found that the plaintiff had not submitted to the show of authority as he continued to flee once officers hit the helicopter. See Bella v. Chamberlain, 24 F.3d 1251, 1256 (10th Cir. 1994) (“The shots constituted an assertion of authority, but they did not cause Mr. Bella to submit nor did they otherwise succeed in stopping him. Indeed, Mr. Bella does not contend seriously that he was ‘seized’ prior to the time he was actually arrested at the Albuquerque International Airport.” (footnotes omitted)). The Tenth Circuit did not find it significant in its analysis that the plaintiff could not submit to the show of authority because he was a hostage held at gunpoint. See Bella v. Chamberlain, 24 F.3d at 1256 n. 5. The Tenth Circuit also noted that, even if the *1232 officer’s shot had accidently hit the plaintiff, it was not a foregone conclusion that a Fourth Amendment seizure would have occurred based on the potential lack of intent to cause a seizure. See Bella v. Chamberlain, 24 F.3d at 1256 n. 6. The Tenth Circuit found in Reeves v. Churchich, 484 F.3d 1244 (10th Cir.2007), that police pointing their weapons at and making verbal commands to the plaintiffs did not constitute a seizure when the plaintiffs did not submit to the show of authority. See 484 F.3d at 1252-53 (“[The officers] clearly asserted their police authority by pointing their weapons and making verbal commands. Nevertheless, in each situation, neither Ashlee nor Alicia submitted to these assertions of authority.”). Addressing some disputed evidence whether the weapon touching one of the plaintiffs faces when one of the officers held the gun at her head would change the result, the Tenth Circuit reiterated that no seizure would occur until the plaintiff submitted to the officer’s show of authority. See Reeves v. Churchich, 484 F.3d at 1253 (“In any event, even assuming Jones’ handgun touched Alicia’s face, no seizure occurred because she failed to submit to this assertion of authority.”). Noting that one of the plaintiffs was naked and might have reasonably ignored the officers commands by running from the room and pushing the officer’s gun from her head, the Tenth Circuit emphasized that these facts would not affect the analysis, because courts must examine a person’s decision not to submit from an objectively reasonable standpoint instead of considering their subjective intentions. See Reeves v. Churchich, 484 F.3d at 1253 . Furthermore, the Tenth Circuit found in Childress v. City of Arapaho, 210 F.3d 1154 (10th Cir.2000), that no seizure occurred when officers fired into a van at some fugitives, which resulted in the officers accidentally hitting two hostages—the plaintiffs—in the vehicle. See 210 F.3d at 1155-57 . The Tenth Circuit concluded that no seizure occurred, because the officers accidentally, not intentionally, hit the plaintiffs, as the officers intended to restrain the van and the fugitives rather than the hostages. See Childress v. City of Arapaho, 210 F.3d at 1157 . As the Tenth Circuit described:
The police officers in the instant case did not “seize” plaintiffs within the meaning of the Fourth Amendment but rather made every effort to deliver them from unlawful abduction. The officers intended to restrain the minivan and the fugitives, not Mrs. Childress and Caitlyn. The injuries inflicted were the unfortunate but not unconstitutional “accidental effects of otherwise lawful conduct.” In keeping with our sister circuits, we hold that no Fourth Amendment seizure occurred in the instant case.
Childress v. City of Arapaho, 210 F.3d at 1157 (quoting Brower v. Cnty. of Inyo, 489 U.S. at 596 , 109 S.Ct. 1378 ). The Tenth Circuit reached this conclusion even though the police officers knew that the plaintiffs were in the van with the fugitives. See Childress v. City of Arapaho, 210 F.3d at 1155-57 .
2. Reasonableness of a Seizure.
With respect to the issue of reasonableness, courts must determine the reasonableness of the use of deadly force from “the totality of the circumstances.” Phillips v. James, 422 F.3d 1075, 1083 (10th Cir.2005). “Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” Carr v.Castle, 337 F.3d 1221, 1227 (10th Cir.2003) (quoting Tennessee v. Garner, 471 U.S. at 11 , 105 S.Ct. 1694 ). As the Tenth Circuit noted:
*1233 Thus, if the suspect threatens the officer •with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.
Carr v. Castle, 337 F.3d at 1227 (quoting Tennessee v. Garner, 471 U.S. at 11 , 105 S.Ct. 1694 ). On the other hand, “[w]here the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.... A police officer may not seize an unarmed, nondangerous suspect by shooting him dead.” Tennessee v. Garner, 471 U.S. at 11 , 105 S.Ct. 1694 . The use of deadly force is justified under the Fourth Amendment “if a reasonable officer in the Defendant’s position would have had probable cause to believe that there was a threat of serious physical harm to themselves or to others.” Phillips v. James, 422 F.3d at 1083 . Courts should also consider whether the officers were in danger at the moment that they used force, and whether the officers reckless or deliberate conduct during the seizure unreasonably created the need to use such force. See Phillips v. James, 422 F.3d at 1083 . Negligent acts that precipitate a confrontation, on the other hand, are not actionable. See Blossom v. Yarbrough, 429 F.3d 963, 968 (10th Cir.2005). A court may consider only events immediately connected with the seizure. See Blossom v. Yarbrough, 429 F.3d at 968 . Depending on the context, employing the assistance of a SWAT team can render a search unreasonable. See Phillips v. James, 422 F.3d at 1082 .
3. Requirements for Warrantless Entries into the Home.
“[T]he Fourth Amendment protects people, not places,” and the Supreme Court has vigorously asserted that the proper analysis under the Fourth Amendment is not whether the place searched is a “constitutionally protected area.” Katz v. United States, 389 U.S. 347, 351 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967). The proper inquiry is whether the defendant had an expectation of privacy in the place searched and whether that expectation was objectively reasonable. See Katz v. United States, 389 U.S. at 351 , 88 S.Ct. 507 (“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”); Katz v. United States, 389 U.S. at 361 , 88 S.Ct. 507 (Harlan, J., concurring) (“My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ”).
There is no doubt, however, that a citizen has a reasonable expectation of privacy, and a particularly strong one, in his own home. The “chief evil” from which the Fourth Amendment protects citizens is unwanted police entry into the home, and the “principal protection” is “the Fourth Amendment’s warrant requirement.” United States v. Thompson, 524 F.3d at 1132 . See Kyllo v. United States, 533 U.S. 27, 31 , 121 S.Ct. 2038 , 150 L.Ed.2d 94 (2001) (“ ‘At the very core’ of the Fourth Amendment ‘stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ ” (quoting Silverman v. United States, 365 U.S. 505, 511 , 81 S.Ct. 679 , 5 L.Ed.2d 734 (1961))); Payton v. New York, 445 U.S. 573, 586 , 100 S.Ct. 1371 , 63 L.Ed.2d 639 (1980) (“[Searches *1234 and seizures inside a home without a warrant are presumptively unreasonable.”).
Not all searches require a warrant. The Supreme Court has instructed that, when assessing the reasonableness of a warrantless search, a court must begin “with the basic rule that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.’ ” Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 1716 , 173 L.Ed.2d 485 (2009) (citing Katz v. United States, 389 U.S. at 357 , 88 S.Ct. 507 ). See Payton v. New York, 445 U.S. at 586 , 100 S.Ct. 1371 . As the Tenth Circuit stated in United States v. Cos, 498 F.3d 1115 (10th Cir. 2007): “A warrantless search of a suspect’s home is per se unreasonable under the Fourth Amendment unless the government can show that it falls within ‘one of a carefully defined set of exceptions.’ ” 498 F.3d at 1123 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 474 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971)). See United States v. Thompson, 524 F.3d at 1132 .
“One exception to the warrant requirement is when police reasonably believe an emergency exists that makes it infeasible to obtain a warrant.” United States v. Gambino-Zavala, 539 F.3d 1221, 1225 (10th Cir.2008). “The government bears the burden of proving the exigency exception to the warrant requirement applies.” United States v. Najar, 451 F.3d 710, 717 (10th Cir.2006) (citing United States v. Wicks, 995 F.2d 964, 970 (10th Cir.1993)). “That burden is especially heavy when the exception must justify the warrantless entry of a home.” United States v. Najar, 451 F.3d at 717 (citation omitted). Generally, a warrantless entry under the exigent-circumstances exception requires probable cause and exigent circumstances. See Kirk v. Louisiana, 536 U.S. 635, 638 , 122 S.Ct. 2458 , 153 L.Ed.2d 599 (2002); Manzanares v. Higdon, 575 F.3d 1135, 1142-43 (10th Cir.2009). With respect to the standard of review on the existence of exigent circumstances, the Tenth Circuit has stated that: “The existence of exigent circumstances is a mixed question of law and fact. Although we accept underlying fact findings unless they are clearly erroneous, the determination of whether those facts satisfy the legal test of exigency is subject to de novo review.” United States v. Davis, 290 F.3d 1239, 1241 (10th Cir.2002).
Additionally, the Tenth Circuit appears to have recognized a subset of exigent-circumstances cases—“emergency-aid” cases—that do not require probable cause. United States v. Najar, No. 03-0735, 2004 WL 3426123 , at *6 (D.N.M. Sept. 3, 2004) (Browning, J.), aff'd, 451 F.3d 710 (10th Cir.2006). As the Court stated in United States v. Najar:
For probable cause in the usual [evidence-of-crime] sense not to be needed, the police must be responding to a true emergency rather than a crime, and the police must reasonably believe a person inside needs immediate assistance, and entry is needed to protect or preserve life, or to avoid serious injury.
United States v. Najar, 2004 WL 3426123 , at *6 (alteration original). In the Tenth Circuit’s opinion in United States v. Najar, the Tenth Circuit held that the exigent-circumstances exception to the warrant requirement authorized a warrantless police entry in an emergency-aid situation without a showing of probable cause. In so doing, the Tenth Circuit noted that the Supreme Court in Brigham City, Utah v. Stuart, which was determining “whether the risk of personal danger created exigent circumstances,” did not “require probable cause in this type of exigent cireum *1235 stances.” United States v. Najar, 451 F.3d at 718 (emphasis added).
In such emergency-aid situations, the Tenth Circuit employs a two-pronged test to determine whether emergency circumstances justify a warrantless entry into a home, which examines: “whether (1) the officers have an objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others, and (2) the manner and scope of the search is reasonable.” United States v. Najar, 451 F.3d at 717-18 . A court is “guided by the realities of the situation presented by the record,” and should consider the facts from the viewpoint of “prudent, cautious, and trained officers.” United States v. Porter, 594 F.3d 1251, 1258 (10th Cir.2010) (citation omitted). “Reasonable belief does not require absolute certainty; the standard is more lenient than the probable cause standard.” United States v. Porter, 594 F.3d at 1258 (citation omitted). “Officers do not need ironclad proof of ‘a likely serious, life-threatening’ injury to invoke the emergency aid exception.” United States v. Porter, 594 F.3d at 1258 (citation omitted). A court must also, however, remember that officers cannot create their own exigent circumstances to justify a warrantless entry. See United States v. Flowers, 336 F.3d 1222, 1230 (10th Cir.2003). In the limited circumstances where the risk of danger to the officers or others gives rise to the exigent circumstance, the court does not require a separate showing of probable cause. See United States v. Najar, 451 F.3d at 718 .
4. Law Regarding Excessive Force.
An excessive force claim “must ... be judged by reference to the specific constitutional standard which governs that right, rather than to some generalized ‘excessive force’ standard.” Graham v. Connor, 490 U.S. at 394 , 109 S.Ct. 1865 . The Supreme Court has long held that all claims of excessive force in the context of an arrest or detention should be analyzed under the Fourth Amendment’s reasonableness standard. See Graham v. Connor, 490 U.S. at 395 , 109 S.Ct. 1865 (“[A]ll claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.... ”). The Supreme Court recognizes that “police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham v. Connor, 490 U.S. at 397 , 109 S.Ct. 1865 . Consequently, “the reasonableness of the officer’s belief as to the appropriate level of force should be judged from that on-scene perspective.” Saucier v. Katz, 533 U.S. at 205 , 121 .S.Ct. 2151. When an officer moves for qualified immunity on an excessive-force claim, “a plaintiff is required to show that the force used was impermissible (a constitutional violation) and that objectively reasonable officers could not have thought the force constitutionally permissible (violates clearly established law).” Cortez v. McCauley, 478 F.3d 1108, 1128 (10th Cir.2007).
a. Relevant Factors in Determining Whether Officers’ Actions Were Objectively Reasonable.
The Tenth Circuit has provided lists of non-exclusive factors that courts consider when determining whether force was objectively reasonable. In Estate of Larsen v. Murr, 511 F.3d 1255 (10th Cir. 2008), the Tenth Circuit stated:
In assessing the degree of threat facing officers, then, we consider a number of non-exclusive factors. These include (1) whether the officers ordered the suspect to drop his weapon, and the suspect’s *1236 compliance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions of the suspect.
511 F.3d at 1260 . In Weigel v. Broad, 544 F.3d 1143 (10th Cir.2008), the Tenth Circuit also provided:
Reasonableness is evaluated under a totality of the circumstances approach which requires that we consider the following factors: the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.
544 F.3d at 1151-52 (citations omitted). The court assesses “objective reasonableness based on whether the totality of the circumstances justified the use of force, and pay careful attention to the facts and circumstances of the particular case.” Estate of Larsen v. Murr, 511 F.3d at 1260 (internal quotation marks omitted).
b. Least- or Less-forceful Alternatives in Excessive-Force Cases.
To avoid a “Monday morning quarterback” approach, the Fourth Amendment does not require the use of the least, or even a less, forceful or intrusive alternative to effect custody, so long as the use of force is reasonable under Graham v. Connor. The Fourth Amendment requires only that the defendant officers chose a “reasonable” method to end the threat that the plaintiff posed to the officers in a force situation, regardless of the availability of less intrusive alternatives. Graham v. Connor, 490 U.S. at 397 , 109 S.Ct. 1865 .
In Michigan Department of State Police v. Sitz, 496 U.S. 444, 450-51 , 110 S.Ct. 2481 , 110 L.Ed.2d 412 (1990), the Supreme Court examined a case addressing the constitutionality of highway sobriety checkpoints and stated that Brown v. Texas, 443 U.S. 47 , 99 S.Ct. 2637 , 61 L.Ed.2d 357 (1979),
was not meant to transfer from politically accountable officials to the courts the decision as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger. Experts in police science might disagree over which of several methods of apprehending drunken drivers is preferable as an ideal. But for purposes of Fourth Amendment analysis, the choice among such reasonable alternatives remains with government officials who have a unique understanding of, and a responsibility for, limited public resources, including a finite number of police officers.
496 U.S. at 453-54 , 110 S.Ct. 2481 . See Illinois v. Lafayette, 462 U.S. 640, 647 , 103 S.Ct. 2605 , 77 L.Ed.2d 65 (1983) (“[T]he reasonableness of any particular government activity does not necessarily turn on the existence of alternative ‘less intrusive’ means.”). To avoid unrealistic second guessing, the Fourth Amendment does not require that an officer use the least-intrusive alternative available to protect himself or others so long as the method chosen is reasonable.
In United States v. Sokolow, 490 U.S. 1 , 109 S.Ct. 1581 , 104 L.Ed.2d 1 (1989), the Supreme Court examined the Terry 8 stop of a suspected drug courier in an airport. The Supreme Court rejected Sokolow’s contention that the arresting officers were “obligated to use the least intrusive means available to dispel their suspicions that he was smuggling narcotics.” 490 U.S. at 11, 109 S.Ct. 1581 . Instead, the Supreme Court held: “The reasonableness of the *1237 officer’s decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques. Such a rule would unduly hamper the police’s ability to make swift, on-the-spot decisions ... and require courts to indulge in unrealistic second guessing.” United States v. Sokolow, 490 U.S. at 11, 109 S.Ct. 1581 (internal quotations and citations omitted). Similarly, in United States v. Sharpe, 470 U.S. 675, 686-87 , 105 S.Ct. 1568 , 84 L.Ed.2d 605 (1985), the Supreme Court stated that
a creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of police might have been accomplished. But “[t]he fact that the protection of the public might, in the abstract, have been accomplished by less intrusive means does not, by itself, render the search unreasonable.”
470 U.S. at 686-87 , 105 S.Ct. 1568 (quoting Cady v. Dombrowski, 413 U.S. 433, 447 , 93 S.Ct. 2523 , 37 L.Ed.2d 706 (1973)).
In Marquez v. City of Albuquerque, 399 F.3d 1216 (10th Cir.2005), the Tenth Circuit disagreed with the plaintiffs contention that expert testimony about when a police dog’s use is objectively reasonable and about how defendant Lehocky’s actions violated “well established law enforcement standards ... should have been admitted since it would have been helpful to the jury in determining whether Lehocky used a reasonable amount of force.” 399 F.3d at 1222 . In so holding, the Tenth Circuit explained:
As the district court correctly noted, the Fourth Amendment “do[es] not require [police] to use the least intrusive means in the course of a detention, only reasonable ones.” United States v. Melendez-Garcia, 28 F.3d 1046, 1052 (10th Cir.1994). Similarly, “violations of state law and police procedure generally do not give rise to a [42 U.S.C. § ] 1983 claim” for excessive force. Romero v. Bd. of County Comm’rs, 60 F.3d 702 , 705 (10th Cir.1995); see also Wilson v. Meeks, 52 F.3d 1547, 1554 (10th Cir. 1995) (holding that “violation of a police department regulation is insufficient for liability under section 1983” for excessive force). Both of these principles of our Fourth Amendment jurisprudence stem from the proper perspective from which to evaluate the conduct of a police officer—that “of a reasonable officer on the scene, acknowledging that the officer may be forced to make split-second judgments in certain difficult circumstances.” Olsen [v. Layton Hills Mall ], 312 F.3d [1304,] 1314 [ (10th Cir.2002) ]. Together, they prevent the courts from engaging in “unrealistic second guessing of police officer’s decisions.” [United States u] Melendez-Garcia, 28 F.3d at 1052
Here, the only issue before the jury was whether Lehocky acted as a “reasonable officer” when he ordered his police dog to apprehend Marquez. In making this determination, the issues of whether Lehocky used the minimum amount of force to apprehend Marquez and whether Lehocky violated some “well established police procedure” are only tangentially related. This is because even if it found Lehocky used more than the minimum amount of force necessary and violated police procedure, the jury could nonetheless find he acted reasonably. [United States u] Melendez-Garcia, 28 F.3d at 1052 ; Romero [v. Bd. of Cnty. Comm’rs, 60 F.3d at 705].
Marquez v. City of Albuquerque, 399 F.3d at 1222 .
In United States v. Melendez-Garcia, 28 F.3d 1046 (10th Cir.1994), the Tenth Circuit stated: “We must avoid unrealistic second guessing of police officers’ decisions in this regard and thus do not require them to use the least intrusive means in *1238 the course of a detention, only a reasonable ones.” 28 F.3d at 1052 (internal quotations omitted). See Medina v. Cram, 252 F.3d 1124, 1133 (10th Cir.2001) (stating that “the reasonableness standard does not require that officers use alternative less intrusive means” (internal quotation marks omitted) (citation omitted)); Dickerson v. McClellan, 101 F.3d 1151 , 1160 (6th Cir.1996) (“[T]he Fourth Amendment does not require officers to use the best technique available as long as their method is reasonable under the circumstances.”); Schulz v. Long, 44 F.3d 643, 649 (8th Cir.1995) (“[T]he Fourth Amendment inquiry focuses not on what the most prudent course of action may have been or whether there were other alternatives available, but instead whether the seizure actually effectuated falls within the range of conduct which is objectively ‘reasonable’ under the Fourth Amendment.”); Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.1994) (“Requiring officers to find and choose the least intrusive alternative would require them to exercise superhuman judgment. ... Officers thus need not avail themselves of the least intrusive means of responding to an exigent situations; they need only act within that range of conduct we identify as reasonable.”); Menuel v. City of Atlanta, 25 F.3d 990, 996-97 (11th Cir.1994) (“[T]he Fourth Amendment does not require officers to use the least intrusive alternatives in search and seizure cases. The only test is whether what the police officers actually did was reasonable.”); Plakas v. Drinski, 19 F.3d 1143, 1149 (7th Cir.1994) (“We do not believe the Fourth Amendment requires the use of the least or even a less deadly alternative so long as the use of force is reasonable under Tennessee v. Gamer and Graham v. Connor.’’).
“Thus, the clearly established law in the Tenth Circuit holds that the Fourth Amendment does not require an officer to use the least or a less forceful alternative.” Jonas v. Bd. of Comm’rs of Luna Cnty., 699 F.Supp.2d 1284, 1296 (D.N.M.2010) (Browning, J.). See, e.g., Blossom v. Yarbrough, 429 F.3d at 968 (quoting Medina v. Cram, 252 F.3d at 1133 ) (“It is well settled that ‘the reasonableness standard does not require that officers use alternative, less intrusive means’ when confronted with a threat of serious bodily injury.”); Jiron v. City of Lakewood, 392 F.3d 410, 414 (10th Cir.2004) (stating that, in police-shooting case, officers are not required to use alternative, less intrusive means if their conduct is objectively reasonable). See also Roy v. Inhabitants of the City of Lewiston, 42 F.3d 691, 695 (1st Cir.1994) (“[I]n close cases, a jury does not automatically get to second guess these life and death decisions, even though plaintiff has an expert and a plausible claim that the situation could better have been handled differently.”); Diaz v. Salazar, 924 F.Supp. 1088, 1100 (D.N.M.1996). Moreover, the reasonableness standard does not require that officers use “alternative ‘less intrusive’ means.” Illinois v. Lafayette, 462 U.S. 640, 647-48 , 103 S.Ct. 2605 , 77 L.Ed.2d 65 (1983). The Court has also rejected the consideration of a less intrusive alternative to end a threat. See Chamberlin v. City of Albuquerque, No. 02-0603, 2005 WL 2313527 , at *2 (D.N.M. July 31, 2005) (Browning, J.) (precluding the plaintiffs police procedures expert from testifying at trial regarding alternative less intrusive means).
LAW REGARDING SUBSTANTIVE DUE-PROCESS RIGHTS
“The touchstone of due process is protection of the individual against arbitrary action of government ... whether the fault lies in a denial of fundamental procedural fairness ... or in the exercise of power without any reasonable justification in the service of a legitimate governmental objective.” Graves v. Thomas, 450 *1239 F.3d 1215, 1220 (10th Cir.2006) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845-46 , 118 S.Ct. 1708 , 140 L.Ed.2d 1043 (1998)). Because “only the most egregious conduct can be said to be ‘arbitrary in the constitutional sense,’ ” Cnty. of Sacramento v. Lewis, 523 U.S. at 846 , 118 S.Ct. 1708 (quoting Collins v. City of Barker Heights, 503 U.S. 115, 129 , 112 S.Ct. 1061 , 117 L.Ed.2d 261 (1992)), the Supreme Court has been reluctant to expand the doctrine of substantive due process, and has cautioned that “[o]nly fundamental rights and liberties which are ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty’ qualify for such protection,” Chavez v. Martinez, 538 U.S. 760, 775 , 123 S.Ct. 1994 , 155 L.Ed.2d 984 (2003) (quoting Washington v. Glucksberg, 521 U.S. 702, 721 , 117 S.Ct. 2258 , 138 L.Ed.2d 772 (1997)). See Graves v. Thomas, 450 F.3d at 1220 (“Substantive due process claims are not based on state law but are founded upon deeply rooted notions of fundamental personal interests derived from the Constitution.” (quoting Hennigh v. City of Shawnee, 155 F.3d 1249, 1256 (10th Cir.1998))).
The ultimate measure whether conduct by state actors violates due process is whether “the challenged government action ‘shocks the conscience’ of federal judges.” Ruiz v. McDonnell, 299 F.3d 1173, 1183 (10th Cir.2002) (quoting Uhlrig v. Harder, 64 F.3d 567, 573 (10th Cir.1995)). To succeed on a substantive due-process claim, a “plaintiff must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking.” Camuglia v. City of Albuquerque, 448 F.3d 1214, 1223 (10th Cir.2006) (quoting Uhlrig v. Harder, 64 F.3d at 574 ). More specifically, “a § 1983 violation based on substantive due process ‘must be predicated on a state action manifesting one of two traditional forms of wrongful intent—that is, either (1) an intent to harm; or (2) an intent to place a person unreasonably at risk of harm.’ ” Ward v. Anderson, 494 F.3d 929, 938 (10th Cir.2007) (quoting Uhlrig v. Harder, 64 F.3d at 573 ). In determining whether a defendant’s actions shock the conscience, three principles guide a court’s analysis: (i) the need for restraint in defining the scope of substantive due process; (ii) the recognition that 42 U.S.C. § 1983 should not be used to replace state tort law; and (iii) the propriety of deferring to local policymakers’ decisions regarding public safety. See Valdez v. New Mexico, 109 Fed.Appx. 257, 262 (10th Cir.2004); Ruiz v. McDonnell, 299 F.3d at 1184 . Lastly, ordinary negligence does not shock the conscience, and even permitting unreasonable risks to continue is not necessarily conscience shocking. Rather, a plaintiff must demonstrate a degree of outrageousness, and a magnitude of potential or actual harm, that is truly conscience shocking. See Ruiz v. McDonnell, 299 F.3d at 1184 .
ANALYSIS
The Court will grant summary judgment on James’ excessive force claims asserted under a Fourth Amendment theory as Carter did not seize Murphy Sr. or M. Murphy within the meaning of the Fourth Amendment. Because James’ unlawful entry claims are not in the Amended Complaint, and because James would have to move to amend to add these claims to the case, the Court will deny leave to amend. Granting leave to amend on the unlawful entry claims would be futile. The Court will enter summary judgment on James’ unlawful entry claims as exigent circumstances justified Carter’s conduct in ordering the SWAT raid and his conduct was reasonable. The Court will grant summary judgment on James’ unlawful entry claims as no unlawful entry occurred based on the existence of exigent circumstances and Carter acted reasonably in ordering *1240 the SWAT raid. The Court will grant summary judgment with respect to James’ excessive force claims asserted under a substantive due-process theory, because James has not demonstrated that Carter’s conduct shocks the conscience or that his conduct violated any clearly established law. Because James has voluntarily agreed to dismiss her Equal Protection Clause claims, the Court will enter summary judgment on those claims.
I. THE COURT WILL ENTER SUMMARY JUDGMENT ON JAMES’S EXCESSIVE FORCE CLAIMS ASSERTED UNDER A FOURTH AMENDMENT THEORY AGAINST CARTER, AS CARTER NEVER SEIZED MURPHY SR. OR M. MURPHY.
Qualified immunity shields government officials from liability where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. at 231 , 129 S.Ct. 808 (quoting Harlow v. Fitzgerald, 457 U.S. at 818 , 102 S.Ct. 2727 ). When a defendant asserts qualified immunity at summary judgment, the responsibility shifts to the plaintiff to meet a “heavy two-part burden.” Medina v. Cram, 252 F.3d at 1128 . The plaintiff must demonstrate on the facts alleged: (i) that the defendant’s actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged unlawful activity. See Riggins v. Goodman, 572 F.3d at 1107 .
Here, even when viewing the facts in the light most favorable to James, James has not established that a seizure of Murphy Sr. or M. Murphy occurred in violation of the Fourth Amendment. Consequently, the Court will enter summary judgment on her excessive force claims with respect to her Fourth Amendment theory against Carter.
A. NO SEIZURE OCCURRED WHEN CARTER FIRED HIS WEAPON AT MURPHY SR., AS MURPHY SR. WAS NOT HIT BY THE BULLET AND DID NOT SUBMIT TO A SHOW OF AUTHORITY.
An arrest constituting a seizure occurs when there is the exercise of a certain degree of physical force or submission to the assertion of authority. See California v. Hodari, 499 U.S. at 626 , 111 S.Ct. 1547 . The Tenth Circuit has identified several factors that are relevant in determining whether a person has been seized within the meaning of the Fourth Amendment. They include:
1) The threatening presence of several officers; 2) the brandishing of a weapon by an officer; 3) some physical touching by an officer; 4) the use of aggressive language or tone of voice indicating that compliance with an officer’s request is compulsory; 5) prolonged retention of a person’s personal effects; 6) a request to accompany the officer to the station; 7) interaction in a nonpublic place or a small, enclosed space; 8) and absence of other members of the public.
Jones v. Hunt, 410 F.3d at 1226 (internal quotation marks omitted). Additionally, “[violation of the Fourth Amendment requires an intentional acquisition of physical control. A seizure occurs even when an unintended person or thing is the object of the detention or taking, but the detention or taking itself must be willful.” Brower v. Cnty. of Inyo, 489 U.S. at 596 , 109 S.Ct. 1378 (1989).
When law enforcement officers exercise a certain degree of physical force against a person, that assertion of force will normally qualify as a seizure. “[Ajpprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” Tennessee v. *1241 Garner, 471 U.S. at 7 , 105 S.Ct. 1694 . The Tenth Circuit has recognized that the use of a taser on a person, although not constituting deadly force, results in a seizure of the victim. See Cavanaugh v. Woods Cross City, 625 F.3d at 665 . The Tenth Circuit assumed without deciding, that when a person in a vehicle was shot with a firearm, but did not initially stop after the shot occurred, that a seizure had occurred. See Thomas v. Durastanti, 607 F.3d at 663 (“Even assuming without deciding Mr. Thomas can meet the seizure element of his claim, however, he cannot show that it was unreasonable”). The Tenth Circuit noted that the plaintiff in that case’s argument relied on dicta in the Supreme Court’s decision in California v. Hodari to the effect that “the ‘application of physical force to restrain movement, even when it is ultimately unsuccessful’ is a seizure.” Thomas v. Durastanti, 607 F.3d at 663 . On the other hand, when a police officer shot at a person piloting a helicopter, who had been taken hostage at gunpoint and required to assist in the escape, and successfully hit the helicopter once, the Tenth Circuit concluded that no seizure had occurred; the Tenth Circuit found that the plaintiff had not submitted to the show of authority as he continued to flee once officers hit the helicopter. See Bella v. Chamberlain, 24 F.3d at 1256 (“The shots constituted an assertion of authority, but they did not cause Mr. Bella to submit nor did they otherwise succeed in stopping him. Indeed, Mr. Bella does not contend seriously that he was ‘seized’ prior to the time he was actually arrested at the Albuquerque International Airport.” (footnotes omitted)). The Tenth Circuit did not find it significant in its analysis that the plaintiff could not submit to the show of authority because he was a hostage held at gunpoint. See Bella v. Chamberlain, 24 F.3d at 1256 n. 5. The Tenth Circuit also noted that, even if the officer’s shot had accidently hit the plaintiff, it was not a foregone conclusion that a Fourth Amendment seizure would have occurred based on the potential lack of intent to cause a seizure. See Bella v. Chamberlain, 24 F.3d at 1256 n. 6. The Tenth Circuit found in Reeves v. Churchich that police pointing their weapons at and making verbal commands to the plaintiffs did not constitute a seizure when the plaintiffs did not submit to the show of authority. See 484 F.3d at 1252-53 (“[The officers] clearly asserted their police authority by pointing their weapons and making verbal commands. Nevertheless, in each situation, neither Ashlee nor Alicia submitted to these assertions of authority.”). Addressing some disputed evidence whether the weapon touching one of the plaintiffs faces when one of the officers held the gun at her head would change the result, the Tenth Circuit reiterated that no seizure would occur until the plaintiff submitted to the officer’s show of authority. See Reeves v. Churchich, 484 F.3d at 1253 (“In any event, even assuming Jones’ handgun touched Alicia’s face, no seizure occurred because she failed to submit to this assertion of authority.”). Noting that one of the plaintiffs was naked and might have reasonably ignored the officers commands by running from the room and pushing the officer’s gun from her head, the Tenth Circuit emphasized that these facts would not affect the analysis, because courts must examine a person’s decision not to submit from an objectively reasonable standpoint instead of considering their subjective intentions. See Reeves v. Churchich, 484 F.3d at 1253 .
The material facts regarding whether Carter seized Murphy Sr. are as follows. Carter, entered 1612 Spence SE and took a position in a west side, upstairs bedroom. See Carter Interview at 20:12-22:11. 1612 Spence SE is adjacent to and immediately east of 1608 Spence SE. See Carter Interview at 22:3-11. From the second story window on the west side of 1612 Spence *1242 SE, Carter could see directly into the second story bedroom of 1608 Spence SE. See Carter Interview at 22:3-11. During the time that Carter was positioned at 1612 Spence SE, Carter was able to observe Murphy Sr. and M. Murphy who were both located in M. Murphy’s second story bedroom at 1608 Spence SE. See M. Murphy Depo. at 123:24-124:14; Carter Interview at 25:3-9. While Murphy Sr. and M. Murphy were upstairs, Murphy Sr. asked M. Murphy to bring him a glass. of water. See M. Murphy Depo. at 122:15— 18. To retrieve the glass of water, M. Murphy exited the bedroom and proceeded down a hallway, which shared an adjoining wall with M. Murphy’s room, and led to the top of a staircase that descended to the first floor where the kitchen is located. See M. Murphy Depo. at 125:18-126:8. As M. Murphy walked through the hallway, an interior wall concealed her from the view of Murphy Sr. and Carter. See M. Murphy Depo. at 125:25-127:8. Similarly, the interior wall prevented M. Murphy from seeing Murphy Sr. and Carter as she walked through the hallway. See M. Murphy Depo. at 125:25-126:8. Carter then fired one round from his rifle. See Carter Interview at 32:17-33:1. Carter aimed this shot at Murphy Sr. See Carter Interview at 33:10-12. This round did not strike Murphy Sr. or M. Murphy and did not cause them any physical injuries. See MSJ ¶ 52, at 10 (setting forth this fact); Response at 2-3 (not disputing this fact). Carter did not subsequently restrain, arrest, or imprison Murphy Sr. See MSJ ¶ 53, at 10 (setting forth this fact); Response at 2-3 (not disputing this fact). After Carter fired this first shot, he did not have any interaction with Murphy Sr. See MSJ ¶ 54, at 10 (setting forth this fact); Response at 2-3 (not disputing this fact). Carter contends that, at the time he decided to use deadly force and try to shoot Murphy Sr., Murphy Sr. was closing the distance in the upstairs bedroom towards M. Murphy, with the knife raised over his head. See Carter Depo. #2 at 21:5-15, 23:6-14. Carter believed that M. Murphy was still in the room and in the immediate vicinity of Murphy Sr. and the knife when he decided to use deadly force. See Carter Depo. # 2 at 23:6-14, 24:4-19. Carter admits that he was not authorized to use deadly force if M. Murphy was not in the room at that time. See Carter Depo. # 2 at 24:4-19.
It is undisputed that Carter did not hit Murphy with his bullet. There would be an issue whether a seizure in violation of the Fourth Amendment occurred if Carter had hit Murphy Sr. and killed him or had hit Murphy Sr. and he had either submitted to this show of authority or did not submit to this show of authority. The undisputed facts indicate that Carter did not interact with Murphy Sr. after he fired this shot in a way that would indicate he further attempted to exercise physical force over Murphy Sr. or have Murphy Sr. submit to a show of authority. James has also pointed to no evidence suggesting that Murphy Sr. submitted to Carter’s show of authority. Once the movant meets his or her initial summary judgment burden, rule 56(e) requires the non-moving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548 ; Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S.Ct. 2505 . Given that the Tenth Circuit has not directly held that a seizure occurs even when an officer shoots a person who subsequently decides to not submit to that show of authority, the Court concludes that the Tenth Circuit would not find a seizure occurred in this case. See Thomas v. Durastanti, 607 F.3d at 663 . Carter shot at Murphy Sr., missed, and did not further interact with Murphy Sr. See Thomas v. Durastanti, 607 F.3d at *1243 663 . Furthermore, like the situation in Reeves v. Churchich, without evidence that a person has submitted to a show of authority, even an officer pointing a gun directly at a person’s head does not constitute a seizure. See Reeves v. Churchich, 484 F.3d at 1253 (“In any event, even assuming Jones’ handgun touched Alicia’s face, no seizure occurred because she failed to submit to this assertion of authority.”). The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d at 1241 . See Vitkus v. Beatrice Co., 11 F.3d at 1539 (“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” (internal quotation marks omitted)).
Likewise, the factors the Tenth Circuit has listed in Jones v. Hunt to determine whether a seizure has occurred would not be particularly helpful. 9 James has never cited to any cases applying these factors or argued that any of these eight factors apply when a person does not submit to a show of authority. Notably, one of the Tenth Circuit cases that applied these eight factors, Jones v. Hunt, involved a situation where officers took a teenager into an office and interrogated her for an “hour or two” and focused on whether she felt “free to leave,” as opposed to a situation where officers try to seize a person through the exercise of physical force or a show of authority during or shortly after the commission of a crime. Jones v. Hunt, 410 F.3d at 1226 . The cases applying these factors focus on whether a Terry stop transformed into an arrest, thus qualifying as a seizure. See United States v. Hill, 199 F.3d 1143, 1147-48 (10th Cir. 1999) (addressing whether a police encounter transformed from a consensual encounter to an arrest). Thus, the Court finds the cases that address the use of deadly force constituting a seizure and the cases regarding a show of submission to authority during or shortly after the commission of a crime more directly on point; these cases do not normally apply these eight factors. James did not directly respond to this argument that no seizure occurred in her Response. At the hearing, James argued that many of the Tenth Circuit cases to which the Defendants have cited are distinguishable, as they did not involve a seizure in a home. First, James cited no authority at the hearing to support this argument. Second, the relevant provisions of her Response in which James cites authority on this issue focus on whether the government’s conduct is reasonable, not the issue of whether a seizure has occurred. See Response at 7-8. Third, some of the Tenth Circuit cases the Court has already discussed, such as Reeves v. Churchich, involved seizures in a home or a dwelling. See 484 F.3d at 1249-50, 1253 . Fourth, even if a violation occurred, James has not pointed to sufficient authority to demonstrate that the law is clearly established on this issue for purposes of qualified immunity. Consequently, the Court *1244 will enter summary judgment on James’ excessive force claim asserted on behalf of Murphy Sr. with respect to his Fourth Amendment theory.
B. NO SEIZURE OCCURRED WHEN CARTER FIRED HIS WEAPON AND ALMOST HIT M. MURPHY BECAUSE CARTER DID NOT INTEND TO FIRE HIS WEAPON AT M. MURPHY.
James contends that Carter seized M. Murphy when he fired the bullet that passed by her. The Defendants counter that no seizure can occur without actual submission by the individual, and that no facts indicate M. Murphy submitted to Carter’s show of authority in firing the bullet. See MSJ at 19. Furthermore, they argue that Carter did not intentionally or willfully attempt to seize M. Murphy, which precludes the occurrence of a seizure under the Fourth Amendment. See MSJ at 19.
“[Wjhether a particular seizure is reasonable is dependent on the ‘totality of the circumstances.’ ” Ryder v. City of Topeka, 814 F.2d at 1419 n. 16. An arrest constituting a seizure occurs when there is the exercise of a certain degree of physical force or submission to the assertion of authority. See California v. Hodari, 499 U.S. at 626 , 111 S.Ct. 1547 . The Tenth Circuit has identified several factors that are relevant in determining whether a person has been seized within the meaning of the Fourth Amendment. They include:
1) The threatening presence of several officers; 2) the brandishing of a weapon by an officer; 3) some physical touching by an officer; 4) the use of aggressive language or tone of voice indicating that compliance with an officer’s request is compulsory; 5) prolonged retention of a person’s personal effects; 6) a request to accompany the officer to the station; 7) interaction in a nonpublic place or a small, enclosed space; 8) and absence of other members of the public.
Jones v. Hunt, 410 F.3d at 1226 (internal quotation marks omitted). Additionally, “[violation of the Fourth Amendment requires an intentional acquisition of physical control. A seizure occurs even when an unintended person or thing is the object of the detention or taking, but the detention or taking itself must be willful.” Brower v. Cnty. of Inyo, 489 U.S. at 596 , 109 S.Ct. 1378 .
“[Ajpprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” Tennessee v. Garner, 471 U.S. at 7 , 105 S.Ct. 1694 . “To determine the constitutionality of a seizure ‘[courts] must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’ ” Tennessee v. Garner, 471 U.S. at 8 , 105 S.Ct. 1694 . The balance of these competing interests is one of the key principles underlying the Fourth Amendment. See Tennessee v. Gamer, 471 U.S. at 8 , 105 S.Ct. 1694 . “Because one of the factors is the extent of the intrusion, it is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out.” Tennessee v. Garner, 471 U.S. at 8 , 105 S.Ct. 1694 .
The Tenth Circuit found in Childress v. City of Arapaho that no seizure occurred when officers fired into a van at some fugitives, which resulted in the officers accidentally hitting two hostages—the plaintiffs—in the vehicle. See 210 F.3d at 1155-57 . The Tenth Circuit concluded that no seizure occurred, because the officers accidentally, not intentionally, hit the plaintiffs, as the officers intended to restrain the van and the fugitives rather than the hostages. See Childress v. City *1245 of Arapaho, 210 F.3d at 1157 . As the Tenth Circuit described:
The police officers in the instant case did not “seize” plaintiffs within the meaning of the Fourth Amendment but rather made every effort to deliver them from unlawful abduction. The officers intended to restrain the minivan and the fugitives, not Mrs. Childress and Caitlyn. The injuries inflicted were the unfortunate but not unconstitutional “accidental effects of otherwise lawful conduct.” In keeping with our sister circuits, we hold that no Fourth Amendment seizure occurred in the instant case.
Childress v. City of Arapaho, 210 F.3d at 1157 (quoting Brower v. Cnty. of Inyo, 489 U.S. at 596 , 109 S.Ct. 1378 ). The Tenth Circuit reached this conclusion even though the police officers knew that the plaintiffs were in the van with the fugitives. See Childress v. City of Arapaho, 210 F.3d at 1155-57 .
The material facts for this claim are as follows. Carter, entered 1612 Spence SE and took a position in a west side, upstairs bedroom. See Carter Interview at 20:12-22:11. 1612 Spence SE is adjacent to and immediately east of 1608 Spence SE. See Carter Interview at 22:3-11. From the second story window on the west side of 1612 Spence SE, Carter could see directly into the second story bedroom of 1608 Spence SE. See Carter Interview at 22:3-11. During the time that Carter was positioned at 1612 Spence SE, Carter was able to observe Murphy Sr. and M. Murphy who were both located in M. Murphy’s second story bedroom at 1608 Spence SE. See M. Murphy Depo. at 123:24-124:14; Carter Interview at 25:3-9. While Murphy Sr. and M. Murphy were upstairs, Murphy Sr. asked M. Murphy to bring him a glass of water. See M. Murphy Depo. at 122:15-18. To retrieve the glass of water, M. Murphy exited the bedroom and proceeded down a hallway, which shared an adjoining wall with M. Murphy’s room, and led to the top of a staircase that descended to the first floor where the kitchen is located. See M. Murphy Depo. at 125:18-126:8. As M. Murphy walked through the hallway, an interior wall concealed her from the view of Murphy Sr. and Carter. See M. Murphy Depo. at 125:25-127:8. Similarly, the interior wall prevented M. Murphy from seeing Murphy Sr. and Carter as she walked through the hallway. See M. Murphy Depo. at 125:25-126:8. Carter then fired one round from his rifle. See Carter Interview at 32:17-33:1. Carter aimed this shot at Murphy Sr. See Carter Interview at 33:10-12. This round did not strike Murphy Sr. or M. Murphy and did not cause them any physical injuries. See MSJ ¶ 52, at 10 (setting forth this fact); Response at 2-3 (not disputing this fact). As M. Murphy walked through a hallway to the stairs, a bullet pierced through the wall and almost struck M. Murphy. See M. Murphy Depo. at 126:18-127:7. Although the trajectory of the bullet was close to M. Murphy, Officer Carter’s round did not strike M. Murphy or cause her any physical injuries. See M. Murphy Depo. at 131:2-7. After the bullet struck another wall, M. Murphy ran downstairs and into the kitchen of her house. See M. Murphy Depo. at 131:8-16. Carter did not intend this shot that he fired at Murphy Sr.—a shot that missed—to almost strike M. Murphy. See MSJ ¶ 59, at 11 (setting forth this fact); Response at 2-3 (not disputing this fact). Carter did not know nor should he have known that the shot he fired at Murphy Sr. would almost strike M. Murphy. See MSJ ¶ 60, at 11 (setting forth this fact); Response at 2-3 (not disputing this fact). Carter did not restrain, arrest, imprison, or otherwise treat M. Murphy as if she was a suspect. See MSJ ¶ 61, at 11 (setting forth this fact); Response at 2-3 (not disputing this fact). Carter did not fire his weapon with intent *1246 to harm M. Murphy “or worsen her legal plight.” MSJ ¶ 62, at 11 (setting forth this fact); Response at 2-3 (not disputing this fact). After Carter fired this first shot, he did not have any interaction with M. Murphy. See MSJ ¶ 63, at 11 (setting forth this fact); Response at 2-3 (not disputing this fact). Carter did not “intentionally seize[] or otherwise willfully acquire[] physical control over Mariah.” MSJ ¶ 64, at 11 (setting forth this fact); Response at 2-3 (not disputing this fact).
The undisputed material facts are that Carter did not intentionally seize or otherwise willfully acquire physical control over M. Murphy. The key case on point on this issue is Childress v. City of Arapaho. The Tenth Circuit found in Childress v. City of Arapaho that no seizure occurred when officers fired in a van at some fugitives, which resulted in the officers accidentally hitting two hostages—the plaintiffs—in the vehicle. See 210 F.3d at 1155-57 . The Tenth Circuit concluded that no seizure occurred, because the officers accidentally, not intentionally, hit the plaintiffs, as the officers intended to restrain the van and the fugitives rather than the hostages. See Childress v. City of Arapaho, 210 F.3d at 1157 . As the Tenth Circuit described:
The police officers in the instant case did not “seize” plaintiffs within the meaning of the Fourth Amendment but rather made every effort to deliver them from unlawful abduction. The officers intended to restrain the minivan and the fugitives, not Mrs. Childress and Caitlyn. The injuries inflicted were the unfortunate but not unconstitutional “accidental effects of otherwise lawful conduct.” In keeping with our sister circuits, we hold that no Fourth Amendment seizure occurred in the instant case.
Childress v. City of Arapaho, 210 F.3d at 1157 (quoting Brower v. Cnty. of Inyo, 489 U.S. at 596 , 109 S.Ct. 1378 ). The Tenth Circuit reached this conclusion even though the police officers knew that the plaintiffs were in the van with the fugitives. See Childress v. City of Arapaho, 210 F.3d at 1155-57 . Here, unlike in Childress v. City of Arapaho, Carter did not hit M. Murphy. That situation weighs against the occurrence of a seizure, -because the impact of a bullet more strongly suggests a seizure. Furthermore, much like this Tenth Circuit ease, Carter did not intentionally or willfully attempt to seize M. Murphy. “Violation of the Fourth Amendment requires an intentional acquisition of physical control. A seizure occurs even when an unintended person or thing is the object of the detention or taking, but the detention or taking itself must be willful.” Brower v. Cnty. of Inyo, 489 U.S. at 596-97 , 109 S.Ct. 1378 . The Supreme Court has distinguished between the occurrence of an unintentional tort and a Fourth Amendment violation. See Brower v. Cnty. of Inyo, 489 U.S. at 596 , 109 S.Ct. 1378 . James has not disputed that Carter did not act intentionally or willfully with respect to firing the bullet that passed by M. Murphy. Consequently, even when viewing the facts in the light most favorable to James, the facts do not support a finding that a seizure occurred.
James did not directly respond to the argument that no seizure occurred in her Response. At the hearing, James argued that many of the Tenth Circuit cases to which the Defendants have cited are distinguishable, as they did not involve a seizure in a home. First, James cited no authority at the hearing to support this argument. Second, the relevant provisions of her Response in which she cites authority on this issue focus on whether the government’s conduct is reasonable, and not on the issue whether a seizure has occurred. See Response at 7-8. Third, the Supreme Court and the Tenth Circuit have clearly articulated that a seizure must be *1247 intentional or willful, and have not qualified that analysis based on where that seizure occurs. Furthermore, Childress v. City of Arapaho is directly on point, and James has not pointed to any controlling authority to the contrary. Fourth, even if a violation occurred, James has not pointed to sufficient authority to demonstrate that the law was clearly established on this issue for purposes of qualified immunity. Consequently, the Court will enter summary judgment on James’ excessive force claims asserted on behalf of M. Murphy with respect to the Fourth Amendment theory.
II. EXIGENT CIRCUMSTANCES WERE PRESENT, GIVING CARTER JUSTIFICATION TO ORDER THE SWAT TEAM TO ENTER THE HOME, AND CARTER’S CONDUCT WAS REASONABLE.
In her Response, James has raised a variety of allegations concerning the officers’ “warrantless entry” into the Murphy home in violation of the Fourth Amendment based on the legitimate privacy interests that the family had in their home. Response at 8-9. The Defendants objected in their Reply to the inclusion of these allegations in the Response, arguing that James never asserted “illegal entry” claims in her Amended Complaint. Reply at 8. The Tenth Circuit interprets the inclusion of new allegations in a response to a motion for summary judgment as a potential request to amend the complaint. See Martinez v. Potter, 347 F.3d 1208, 1211 (10th Cir.2003). At the pre-trial conference on October 28, 2011, the parties agreed that the Court could these unlawful entry claims raised in the Response without requiring James to formally seek leave to amend her Amended Complaint. See Oct. 28, 2011 Tr. at 8:20-10:2. In this situation, the Tenth Circuit has recommended that a plaintiff should still formally amend his complaint. See Martinez v. Potter, 347 F.3d at 1211 (“If an amendment is permitted, we think the federal rules contemplate a formal amended complaint, an amended answer and inclusion of the issue in the initial pretrial report and the pretrial order.”). Based on the agreement at the hearing, the Court will treat the allegations regarding unlawful entry claims in the Response as an unopposed motion seeking leave to amend the Amended Complaint. The Court will deny leave to amend, however, because amendment would be futile. The parties have also agreed that the Court can address these issues as part of the disposition of this Motion for Summary Judgment. Consequently, the Court will now address these unlawful entry claims.
James argues that the circumstances of this case did not justify a warrantless entry under the exigent-circumstances doctrine. See Response at 8. She asserts that a warrantless entry of a home is presumptively unconstitutional. See Response at 8. She contends that there was no immediate danger that justified Carter ordering the SWAT raid of the home. The Defendants point out that Carter never entered the home himself. The Defendants also argue that the circumstances of this case justified entrance into the home, as exigent circumstances existed based on the potential danger to M. Murphy as demonstrated by Murphy Sr.’s violent conduct.
In Brigham City, Utah v. Stuart, the Supreme Court recently addressed the existence of exigent circumstances in a factual situation similar to the one presented in this case. The Supreme Court found that exigent circumstances existed when police arrived at a loud party and heard a disturbance inside the home. See 547 U.S. 398, 400-01 , 126 S.Ct. 1943 , 164 L.Ed.2d 650 (2006). The officers responded at three o’clock in the morning to complaints about a loud party. See id. at 401 , 126 S.Ct. *1248 1943 . As the officers approached the house, they could hear from inside the house some kind of altercation that was loud and tumultuous. See id. The officers heard thumping and crashing and people yelling “stop, stop” and “get off me.” Id. The noise seemed to be coming from the back of the house. See id. The officers looked in the front window and saw nothing. See id. Afterwards, they proceeded to the back of the house and saw two juveniles drinking beer in the backyard. Id. From the back of the house, the officers could see a fight taking place inside the house. See id. Several adults were holding back a juvenile. See id. As the officers watched the fight, the juvenile broke free and struck one of the adults, sending the adult to the sink spitting blood. See id. The Supreme Court found these circumstances sufficient to justify a warrantless entry of the home. See id. at 400, 406 , 126 S.Ct. 1943 . The Supreme Court also noted: “The role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties; an officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided.” Id. at 406 , 126 S.Ct. 1943 .
In Michigan v. Fisher, — U.S. —, 130 S.Ct. 546 , 175 L.Ed.2d 410 (2009) (per curiam), the Supreme Court also found that exigent circumstances existed in a similar factual scenario to this case. In Michigan v. Fisher, the Supreme Court likewise concluded that the police officers had exigent circumstances to enter the home under the “emergency aid exception.” 130 S.Ct. at 548-49 . In that case, police officers responded to a dispute where neighbors had stated that the defendant was “going crazy.” Id. at 547 . When the police officers arrived, they saw a pickup in the driveway with its front smashed, damaged fenceposts, three broken windows, glass still on the ground, and blood on the hood of the pickup and the clothes inside the pickup. See id. The officers could see the individual inside the house, screaming and throwing things. See id. The officers knocked on the door, but the defendant did not respond. See id. at 548-49 . They saw that the defendant had cut his hand, and they asked whether he needed medical attention. See id. at 547 . One officer ventured into the house, and the defendant pointed a gun at him. See id. at 548-49 . The state courts suppressed the evidence obtained from the arrest that followed. See id. at 547-48 . The Supreme Court reversed the decision, concluding that exigent circumstances existed. See id. at 548 . Applying the rationale in Brigham City, Utah v. Stuart, the Supreme Court noted that the emergency aid exception applied, thus making the officer’s entry into the home reasonable. See Michigan v. Fisher, 130 S.Ct. at 548-49 . The Supreme Court noted that the officers observed a tumultuous situation in the house when they arrived, and could see violent behavior inside. See id. The Supreme Court also pointed out:
Although Officer Goolsby and his partner did not see punches thrown, as did the officers in Brigham City, they did see Fisher screaming and throwing things. It would be objectively reasonable to believe that Fisher’s projectiles might have a human target (perhaps a spouse or a child), or that Fisher would hurt himself in the course of his rage.
See id. Thus, the officers did not need to actually see violence targeted at an individual if “[i]t would be objectively reasonable to believe that [an individual’s conduct] might have a human target (perhaps a spouse or a child).” Id.
In United States v. Martinez, 643 F.3d 1292 (10th Cir.2011), the Tenth Circuit concluded that exigent circumstances did not exist to justify warrantless entry into the home. In that case, the 911 call center *1249 received a 911 call from the defendant’s residence. See 643 F.3d at 1294 . The dispatcher heard static on the line. See id. She tried to call the residence, but no one answered, and she again only heard static on the line. See id. Several officers responded to the call. See id. One of the officers knew that the call consisted only of static, and that phone-line problems or bad weather can cause a static-only telephone call. See id. Other officers “within the department were generally aware of this fact as well.” Id. The house was in a rural area. See id. The officers knocked on the front door, but received no response. See id. The officers saw no signs of forced entry, and heard and saw no one inside. See id. at 1295 . Through a sliding glass door, the officers could see some electronic boxes near the door and noticed that the house looked disheveled. See id. The officers opened the door and announced their presence, but received no response. See id. The officers searched the house to make sure no one was injured, unconscious, or deceased. See id. The officers seized incriminating evidence, and promptly left the house after they finished their sweep of the house. See id. The Tenth Circuit concluded that exigent circumstances did not exist based on the indeterminacy of the 911 call, as it was not a call where someone had called and then hung up, which would normally indicate a greater threat. See id. at 1296-97 . The Tenth Circuit also noted that there was no indication anyone was in the house to corroborate the presence of a person in the home who needed assistance. See id. at 1297 .
In an unpublished case, United States v. Belisle, 164 Fed.Appx. 657 (10th Cir.2005) (unpublished), the Tenth Circuit concluded that exigent circumstances existed to order the warrantless entry of a home. In that case, officers received a report of a disturbance involving a gun at an apartment complex. See United States v. Belisle, 164 Fed.Appx. at 658 . Two officers arrived to investigate. See id. One of the officers interviewed the resident who phoned the police. See id. The resident explained that her neighbor had asked to use the telephone; the neighbor was distraught, because “some people apparently inside of their apartment [were] causing trouble with her husband” and “there was some friends in his house.” Id. The resident had agreed that she would retrieve the neighbor’s child from the apartment. See id. The resident entered her neighbor’s apartment, where she encountered the defendant on the couch, and the defendant pointed his gun at her. See id. at 658-59 . The resident was frightened, but took the child and returned to her own apartment. See id. at 659 . After this interview with the resident, the officers knocked on the neighbor’s door. See id. They asked the defendant to step outside of the apartment, and the defendant complied. See id. The defendant was initially non-compliant with the officers’ questions. See id. He responded negatively that there were guns, or other persons besides his daughter or wife, in the apartment. See id. He claimed that the resident who entered the neighbor’s home had seen only a knife, and not a gun. See id. While one officer was speaking with the defendant, another officer entered the home through the front door, which was cracked open two to three inches. See id. The defendant’s wife denied the existence of a gun, but using a ruse, the officer was able to get her to admit where the gun was located. See id. The officers then received consent to look for other weapons, and then arrested the defendant for possession of a firearm based on his previous felony. See id. at 659-60 . The Tenth Circuit concluded that exigent circumstances justified entering the home. See id. at 660-62 . The defendant tried to argue that there was no immediate danger. See id. at 660-61 . The Tenth Circuit emphasized that a court *1250 should “examine the circumstances ‘as they would have appeared to prudent, cautious, and trained officers.’ ” See id. at 661 . The Tenth Circuit also noted: “While the exigent circumstances exception to the warrant requirement is narrow, and must be ‘jealously and carefully drawn,’ it does not require the officer to suspend common sense in light of the circumstances at hand. Nor does it require us to compartmentalize the facts and look at them in isolation.” See id. (citations omitted). The Tenth Circuit pointed out that there was sufficient evidence to lead a prudent officer to conclude that exigent circumstances justified entering the home based on the following facts: (i) that the officers knew, based on the resident’s report, that an argument had occurred late at night in the neighbor’s apartment that disturbed the neighbor enough for her to not reenter the apartment to retrieve her two-year-old daughter; (ii) that the officers knew that the resident had been confronted with a gun in the presence of a child; (iii) that the officers found the defendant’s explanation unconvincing; and (iv) the officers’ reason to believe that other dangerous individuals, at least one gun, and the defendant’s wife and child were in the apartment. See id.
In Cortez v. McCauley, 478 F.3d 1108 (10th Cir.2007), the Tenth Circuit concluded that exigent circumstances did not exist to justify a warrantless search of a home. The police department received a call from a nurse at a hospital informing the police that a woman had brought in a child who complained that her babysitter’s “boyfriend” had “hurt her pee pee.” 478 F.3d at 1112-13 . The officers did not wait to receive the results of the medical exam. See id. at 1113 . The officers did not interview the child or her mother. See id. When the officers arrived at the home, the people inside were asleep. See id. The plaintiffs woke up once the officers arrived and inquired what was going on through a closed screen door. See id. The officers ordered them to leave the house. See id. After the officers arrested the plaintiffs, they performed a warrantless search of the home. See id. The Tenth Circuit concluded that the officers had “offered nothing, beyond innuendo and speculation, to establish objectively reasonable grounds of an emergency.” See id. at 1124 . The Tenth Circuit noted that the officers pointed to no specific facts that would lead them to believe the plaintiffs posed a threat to the officers or the others. See id. The Tenth Circuit noted that no evidence in the record suggested others were in the home. See id.
The Tenth Circuit concluded in United States v. Martin, 613 F.3d 1295 (10th Cir. 2010), that exigent circumstances existed justifying the warrantless entry of a home. In that case, officers received a call that someone had been shot in the chest. See 613 F.3d at 1298 . People at the scene identified the shooter and said that he had fled on foot. See id. The officers obtained a photograph of the defendant’s girlfriend. See id. The officers arrived at the girlfriend’s home seeking to get a statement for her, roughly four hours after the shooting. See id. The officers could not get the attention of anyone in the apartment, but heard voices approaching the door. See id. The officers spoke with a man, the defendant, who approached the door, and he responded giving them the name the officers had earlier determined was the name of the suspect. See id. As the defendant said this, he began to step back further into the home. See id. The officers identified themselves as police, and told him to put his hands on his head and turn around. See id. The defendant did not do as told, and said he has something

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8694522. Public record. Not legal advice.