Petition for Writ of Certiorari — Marta Sanchez, et al., Petitioners v. Anthony Guzman, et al.
Supreme Court briefOct 21, 2024
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APPENDIX TABLE OF CONTENTS
OPINIONS AND ORDERS
Opinion, U.S. Court of Appeals for the
Tenth Circuit (June 28, 2024) ............................ 1a
Judgment, U.S. Court of Appeals for the
Tenth Circuit (June 28, 2024) .......................... 27a
Final Judgment, U.S. District Court for the
District of Colorado (August 30, 2022) ............ 28a
Order, U.S. District Court for the District of
Colorado (August 30, 2022) .............................. 30a
Recommendation of Magistrate Judge,
U.S. District Court for the District of
Colorado (July 29, 2022) .................................. 55a
REHEARING ORDER
Order Denying Petition for Rehearing En Banc,
U.S. Court of Appeals for the Tenth Circuit
(July 23, 2024) .................................................. 88a
OTHER DOCUMENT
Petition for En Banc Determination,
U.S. Court of Appeals for the Tenth Circuit
(July 11, 2024) .................................................. 90a
App.1a
OPINION, U.S. COURT OF APPEALS
FOR THE TENTH CIRCUIT
(JUNE 28, 2024)
PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
________________________
MARTA SANCHEZ;
THE ESTATE OF STEPHANIE LOPEZ;
DOMINIC MARTINEZ,
Plaintiffs-Appellants,
v.
ANTHONY GUZMAN, individually;
LUKE MCGRATH, individually;
JOSEPH CARNS, individually;
BRIAN MARTINEZ, individually,
Defendants-Appellees.
________________________
No. 22-1322
Appeal from the United States
District Court for the District of Colorado
(D.C. No. 1:19-CV-01871-RMR-MEH)
Before: HOLMES, Chief Judge, McHUGH,
and CARSON, Circuit Judges.
HOLMES, Chief Judge.
App.2a
Plaintiffs Marta Sanchez, the Estate of Stephanie
Lopez, and Dominic Martinez brought a § 1983 excessive-force action against Littleton, Colorado Police
Department Officers Anthony Guzman, Luke McGrath,
and Joseph Carns, as well as Englewood Police Department Officer Brian Martinez (collectively, “Defendants”). The district court granted summary judgment
to Defendants on the basis that they were entitled to
qualified immunity. Exercising jurisdiction pursuant
to 28 U.S.C. § 1291, we affirm.
I
The parties’ arguments reveal starkly different
pictures of the factual circumstances that form the
basis of this action.
On one hand, Plaintiffs describe an incident in
which Defendants fired sixty-six bullets into Plaintiffs’
motionless vehicle while they were attempting to
surrender and presenting no observable threat—
actions that killed Stephanie Lopez, rendered Marta
Sanchez a paraplegic, and severely injured Dominic
Martinez.
On the other hand, Defendants describe a multifaceted police pursuit and shooting whereby Plaintiffs
—after fleeing the scene of an armed carjacking in a
stolen vehicle—led police on a high-speed car chase,
fleeing after each of Defendants’ three attempts to
stop Plaintiffs’ vehicle. And, according to Defendants,
Plaintiffs used their vehicle as a weapon against
Defendants and, more generally, endangered the public
through their use of the vehicle.
Though we acknowledge the different perspectives
of the parties, in our review of the district court’s
App.3a
qualified-immunity summary-judgment order, we are
obliged to accept Plaintiffs’ version of the facts; yet,
critically, that is true only insofar as that version is
supported by record evidence. See, e.g., Thomson v.
Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009)
(“[B]ecause at summary judgment we are beyond the
pleading phase of the litigation, a plaintiff’s version of
the facts must find support in the record. . . . ”).
Ordinarily, the plaintiff’s version of the facts provides
the foundation for our qualified-immunity legal analysis. See, e.g., Palacios v. Fortuna, 61 F.4th 1248, 1256
(10th Cir. 2023) (noting that, in the qualified-immunity
summary-judgment context, construing the facts in
the plaintiff’s favor “generally means adopting the
plaintiff’s version of the facts”). Considering the plaintiff’s record-based facts, ordinarily we would determine whether the plaintiff has satisfied its burden of
proof—and thus defeated the defendant’s qualifiedimmunity defense— by showing (1) that the defendant
violated the plaintiff’s constitutional rights and (2)
that the violation contravened clearly established law.
See, e.g., A.M. v. Holmes, 830 F.3d 1123, 1136 (10th Cir.
2016) (noting that we look to the plaintiff’s version of
the facts “in determining whether the plaintiff has
satisfied the necessary two-pronged qualified-immunity
showing”).
However, under the unique circumstances of this
case, we are unable to make that qualified-immunity
determination because Plaintiffs have failed to identify
the record evidence that supports the version of the
facts that they have pleaded and argued in their
briefing. In other words, Plaintiffs have failed to supply
the factual foundation for our qualified-immunity legal
analysis. As a necessary consequence, Plaintiffs have
App.4a
effectively waived our review of their challenge to the
district court’s grant of qualified immunity to Defendants. More specifically, this is so because Plaintiffs’
failure to define the operative factual universe—
with citations to supportive record evidence—prevents
us from assessing whether Plaintiffs have carried their
two-part qualified-immunity burden. In particular,
absent Plaintiffs identifying for us a record-based factual
universe reflecting their version of events, we cannot
opine on whether the district court committed reversible
error in concluding that Plaintiffs did not satisfy the
clearly established law prong of the qualified-immunity
test.
The assessment of whether a plaintiff has satisfied
that prong—as well as the first prong of the qualifiedimmunity test (constitutional violation vel non)—turns
on the nature of the record-based factual universe
that a plaintiff has defined. But here Plaintiffs have
failed to define such a universe. Therefore, they have
effectively waived our review of their qualified-immunity
challenge. Accordingly, exercising jurisdiction under
28 U.S.C. § 1291, we are constrained on this basis to
uphold the district court’s judgment.
II
On February 4, 2022, Defendants moved for
summary judgment on the basis that they were entitled
to qualified immunity. The district court referred the
motions to a magistrate judge. The magistrate judge
recommended granting the motions for summary
judgment on the basis of qualified immunity. See Aplts.’
App. at 47 (Mag. Judge’s R. & R. on Defs.’ Mots. for
Summ. J., filed July 29, 2022) (“Recommendation”). Spe-
App.5a
cifically, the magistrate judge concluded that Plaintiffs had failed to carry their burden on the clearly
established law issue, and recommended that the district court grant Defendants’ motions for summary
judgment on the ground of qualified immunity.
Plaintiffs filed objections to the magistrate judge’s
Recommendation. In large part, Plaintiffs’ objections
related to the magistrate judge’s treatment of the facts.
They argued that the Recommendation “ignored or
marginalized” Plaintiffs’ version of the facts—including
their sworn testimony—thus not taking the facts, as
the judge should, in the light most favorable to the
plaintiffs. Id. at 80 (Pls.’ Objs. to Mag. Judge’s R. & R.
on Defs.’ Mots. for Summ. J., filed Aug. 12, 2022). Specifically, Plaintiffs said that “the Recommendation’s
analysis regarding the second prong of qualified
immunity is undermined by improper deference to the
Defendants’ proposed facts, while disregarding contradictory video evidence, weighing the Plaintiffs’ credibility against them, and disregarding the defendants’
sworn testimony when it conflicts with the Magistrate’s
opinion of the video evidence.” Id. at 88. They said that
the judge’s approach was erroneous because the “question of qualified immunity demands clearly reasonable
inferences in the plaintiffs’ favor. Instead, the Recommendation systematically eliminated all disputes of
material fact, finding each in favor of the Defendants
without any inferences provided to the Plaintiffs, and
concluded that no analysis of the constitutional rights
at issue was necessary.” Id. (citation omitted).
The district court nevertheless issued an order
adopting the magistrate judge’s Recommendation.
Significantly, despite Plaintiffs’ vigorous objections,
the district court fully adopted the Recommendation’s
App.6a
factual statement. In anticipation of tackling the legal
questions that Plaintiffs raised, the district court
offered a summary of the magistrate judge’s factual
findings. It bears repeating here:
On the evening of June 29, 2017, Defendant
Officers Anthony Guzman, Joseph Allen
Carns, and Luke McGrath were on duty
with the Littleton Police Department. Just
before midnight, they received a dispatch
report that a white Chevy Malibu had been
carjacked by four individuals. One of the
suspects was armed and had fired a shot near
the victim’s head, according to the dispatch
report. This constituted felony auto theft in
violation of Colorado Revised Statute § 18-4409. The officers responded to the report in
full police uniform, each driving a fully marked
police SUV. They observed the suspect Malibu
driving northbound on Santa Fe Drive. There
were three suspects in the vehicle at that time:
Plaintiffs Marta Sanchez and Dominic Martinez, as well as decedent Stephanie Lopez,
whose Estate proceeds as the third Plaintiff
in this action. The officers began to follow the
Malibu with lights and sirens activated, but
the suspects did not yield.
Plaintiff Martinez estimated that the Malibu
was driving “at least” seventy-five miles per
hour. The suspects ran red lights at Oxford
Avenue and Dartmouth Avenue and began to
weave between lanes. Officer Carns observed
the suspects narrowly avoid colliding with a
motorcycle, but Plaintiff Sanchez testified that
she did not recall almost hitting a motorcycle.
App.7a
Officer Carns requested and was authorized
to perform a Pursuit Intervention Technique
(“PIT”) maneuver once speeds decreased, in
order to stop the Malibu. Eventually, the
Malibu appeared to skid and decelerate, and
at that time, Officer Carns performed the
authorized PIT maneuver. The Malibu spun
roughly 170 degrees and came to rest. This
was the first of three “stops” that took place
during this pursuit, all of which were captured
on video that has been submitted to the Court.
Officer Brian Martinez of the Englewood Police
Department joined the other Defendant officers at the third stop, in response to their
dispatch call for assistance.
In total, the pursuit of the suspects in the
Malibu covered more than six miles and
spanned three jurisdictions, including Littleton,
Englewood, and Denver. Plaintiff Sanchez,
who was the driver, was shot multiple times.
Plaintiff Lopez, who was in the front passenger
seat, was fatally shot. Plaintiff Martinez, who
was in the back seat, jumped out of the moving
vehicle at some point during the chase between
the first and second stops, unbeknownst to
the officers, and had no further involvement.
He alleges that he does not know whether he
was hit but had previously told investigators
that he had not been shot during the entirety
of the events.
Id. at 206–207 (Dist. Ct. Order on Defs.’ Mots. for
Summ. J., filed Aug. 30, 2022) (citation omitted).
The district court recognized that “Plaintiffs
argue that there are disputes of fact as to what took
App.8a
place at each of the three stops, including the circumstances under which the various officers exerted force
and fired their weapons at Plaintiffs during those
stops, that preclude summary judgment.” Id. at 207.
Nevertheless, the district court concluded that “Plaintiffs have failed to satisfy the ‘clearly established’ prong
of the qualified immunity analysis” and that certain
“disputes of fact are not material to the motions for
summary judgment at issue.” Id. at 208.
More specifically, as relevant to our disposition
here, the court reasoned:
Upon de novo review of the motions for
summary judgment and the record evidence,
including the video evidence of the events of
that evening, the Court is skeptical whether,
absent the qualified immunity issues discussed
herein, there would remain no disputes of fact
that would be suitable for a jury—particularly
regarding the circumstances under which
various officers discharged their weapons;
whether, at those times, Plaintiffs were
attempting to surrender and had brought
the Malibu to a full stop; and whether and
in what direction(s) the Malibu was moving
at those times. However, even if the Court were
to find in favor of Plaintiffs and conclude that
these disputes of fact raised material issues
as to whether the officers’ conduct was unconstitutional, this would not be sufficient to
defeat summary judgment because Plaintiffs
have not borne their burden on the second
prong of the qualified immunity analysis[.]
Id. at 226. In other words, the court determined that,
even assuming that the potential disputes of fact that
App.9a
it identified were resolved in Plaintiffs’ favor—such
that there were triable factual issues bearing on the
alleged unconstitutionality of Defendants’ conduct—
Plaintiffs would nonetheless not succeed because they
could not carry their burden of establishing that
Defendants violated clearly established constitutional
law.
III
We review a district court’s grant of summary
judgment based on qualified immunity de novo. See
Est. of Taylor v. Salt Lake City, 16 F.4th 744, 756
(10th Cir. 2021). “‘The doctrine of qualified immunity
shields officials from civil liability so long as their
conduct “does not violate clearly established statutory
or constitutional rights of which a reasonable person
would have known.” ’ ” Est. of Smart ex rel. Smart v.
City of Wichita, 951 F.3d 1161, 1168 (10th Cir. 2020)
(quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)).
“When a § 1983 defendant asserts qualified immunity,
this affirmative defense ‘creates a presumption that
[the defendant is] immune from suit.’” Id. (alteration
in original) (quoting Perea v. Baca, 817 F.3d 1198,
1202 (10th Cir. 2016)). “‘To overcome this presumption,’
the plaintiffs bear the burden of ‘show[ing] that (1) the
officers’ alleged conduct violated a constitutional right,
and (2) [that right] was clearly established at the time
of the violation, such that “every reasonable official
would have understood,” that such conduct constituted
a violation of that right.’” Id. (alterations in original)
(quoting Perea, 817 F.3d at 1202).
This case concerns the second prong—that is, the
clearly established law prong. “Constitutional rights
are clearly established when Tenth Circuit or Supreme
App.10a
Court precedent particularized to the case at issue
exists.” Shepherd v. Robbins, 55 F.4th 810, 815 (10th
Cir. 2022) (emphasis added) (citing Apodaca v.
Raemisch, 864 F.3d 1071, 1076 (10th Cir. 2017)).
“Materially similar facts can make the precedent
sufficiently particularized.” Id. (emphasis added).
“Thus, a right is clearly established when our precedent encompasses ‘“materially similar conduct” or
applies “with obvious clarity”[1] to the conduct at
issue.’” Id. (quoting Apodaca, 864 F.3d at 1076). “We
do not require a case directly on point, but existing
1 In the Recommendation, the magistrate judge acknowledged
Plaintiffs’ attempt to “draw the Court’s attention to the ‘sliding
scale’ [approach to clearly established law] of the Tenth Circuit.”
Aplts.’ App. at 65. But the magistrate judge noted that “the
Supreme Court has [recently] limited the application of such an
approach.” Id. at 66. We observe in this regard that, although the
language of the “sliding scale” still exists in our precedent, our
recent cases have moved away from that rubric—questioning its
viability. See Shepherd, 55 F.4th at 818 n.5 (“Plaintiff argues the
‘sliding scale’ approach should apply to show that the unlawfulness of Defendant’s conduct was apparent. Our more recent
jurisprudence has shifted to consider ‘obvious clarity’ or
‘flagrantly unlawful conduct’ rather than engage in the sliding
scale approach.” (first citing Lowe v. Raemisch, 864 F.3d 1205,
1210–11 & 1211 n.10 (10th Cir. 2017); and then citing Contreras
v. Doña Ana Cnty. Bd. of Cnty. Comm’rs, 965 F.3d 1114, 1123
(10th Cir. 2020) (Carson, J., concurring))); accord Reyes v.
Fowlks, No. 22-4028, 2023 WL 4486155, at *3 (10th Cir. July 12,
2023) (unpublished); see also Luchetti v. N.M. State Pers. Bd., No.
21-2109, 2022 WL 2678826, at *4 (10th Cir. July 12, 2022)
(unpublished) (“Our more recent jurisprudence [] has observed
that the ‘sliding scale’ approach ‘may arguably conflict with
recent Supreme Court precedent on qualified immunity.’”
(quoting Lowe, 864 F.3d at 1211 n.10)). As we do here with Reyes
and Luchetti, we cite unpublished cases for their persuasive
value only and do not treat them as binding authority. See United
States v. Ellis, 23 F.4th 1228, 1238 n.6 (10th Cir. 2022).
App.11a
precedent must have placed the statutory or constitutional question beyond debate.” Mullenix, 577 U.S.
at 12 (quoting Ashcroft v. al–Kidd, 563 U.S. 731, 741
(2011)). “To be clear, we do not require plaintiffs to
engage in a scavenger hunt for a prior case with identical
facts.” Shepherd, 55 F.4th at 815 (citing Casey v. City
of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007)).
“We ask whether the existing law provides fair warning
to a defendant.” Id. (citing Est. of Smart, 951 F.3d at
1168).
In recent years, the Supreme Court “has issued a
number of opinions reversing federal courts in qualified immunity cases.” White v. Pauly, 580 U.S. 73, 79
(2017) (per curiam) (citing City & Cnty. of S.F. v.
Sheehan, 575 U.S. 600, 611 n.3 (2015)). “The Court
has found this necessary . . . to reiterate the longstanding principle that ‘clearly established law’ should not
be defined ‘at a high level of generality.’” Id. (quoting
al–Kidd, 563 U.S. at 742). “‘[G]eneral statements of
the law are not inherently incapable of giving fair and
clear warning’ to officers, . . . but ‘in the light of preexisting law the unlawfulness must be apparent[.]’” Id.
at 79–80 (emphasis added) (first quoting United States
v. Lanier, 520 U.S. 259, 271 (1997); and then quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
Accordingly, the Supreme Court has held that Tennessee
v. Garner, 471 U.S. 1 (1985), and Graham v. Connor,
490 U.S. 386 (1989)—the Court’s seminal cases on
Fourth Amendment seizures and excessive force—”do
not by themselves create clearly established law outside ‘an obvious case.’” Id. at 80 (first quoting Brosseau
v. Haugen, 543 U.S. 194, 199 (2004) (per curiam); and
then citing Plumhoff v. Rickard, 572 U.S. 765, 779
(2014)).
App.12a
The specificity of clearly established law is “especially important in the Fourth Amendment context,
where the Court has recognized that ‘[i]t is sometimes
difficult for an officer to determine how the relevant
legal doctrine, here excessive force, will apply to the
factual situation the officer confronts.’” Mullenix, 577
U.S. at 12 (quoting Saucier v. Katz, 533 U.S. 194, 205
(2001)). “It is with reluctance that we second-guess
the split-second decisions of trained officers reacting
to difficult situations in the line of duty. We are not
well-suited to act as a police supervisory board,
making finely calibrated determinations of just what
type of misbehavior justifies just what level of response.”
Cordova v. Aragon, 569 F.3d 1183, 1190 (10th Cir. 2009).
IV
Plaintiffs raise two arguments on appeal that
bear on our disposition of this action.2 We consider
them both and reject them.
2 Plaintiffs also argue that the district court erred in its clearly
established law analysis by placing an “effectively insurmountable”
burden on them. Aplts.’ Opening Br. at 6. Specifically, Plaintiffs
allege that the district court improperly concluded that “qualified
immunity defeated all claims [on the second, clearly established
law prong] unless [they] produced precedent from analogous types
of cases with directly analogous facts demonstrating the Constitutional rights alleged to be violated.” Id. Because we conclude,
at the threshold, that Plaintiffs have failed to provide us with a
record-based factual version of events upon which to conduct a
clearly established law analysis on appeal, any error by the district court in placing too high of a clearly established law burden
on Plaintiffs must be deemed harmless. By failing to establish a
record-based factual foundation for our clearly established law
analysis, Plaintiffs have effectively given up the opportunity to
demonstrate that any error in the particulars of the district
App.13a
First, Plaintiffs argue that the district court erred
by placing the burden on them to overcome Defendants’ assertion of qualified immunity. This argument
crumbles under the weight of our extensive body of
caselaw that places the burden on the plaintiffs in the
qualified-immunity context. And second, Plaintiffs
argue that the district court erred in concluding that
Defendants were entitled to qualified immunity because
Plaintiffs failed to show that Defendants violated clearly
established law. We conclude that Plaintiffs have
effectively waived our review of this argument by failing
to define a factual universe that is supported by record
evidence upon which we can perform the requisite
legal analysis. We cannot opine on whether the district
court committed reversible error in concluding that
Plaintiffs did not satisfy the clearly established law
prong of the qualified-immunity test without a universe
of record-based facts against which to conduct a particularized assessment of the state of the law existing
at the time of these events. Because they failed to
supply us with this universe of record-based facts,
Plaintiffs have effectively waived our review and we
must uphold the district court’s qualified-immunity
determination—in particular, its ruling regarding
clearly established law.
court’s clearly established law analysis harmed them. That is because Plaintiffs cannot show us without such a record-based
factual universe that there actually is any particularized controlling
law that demonstrates the unconstitutionality of Defendants’
conduct. And, by necessary extension, they therefore cannot
show us that the district court reached the wrong outcome on the
clearly established law question.
App.14a
A
As to Plaintiffs’ first contention that the district
court erred by placing the burden on them to overcome
Defendants’ assertion of qualified immunity, we need
not linger long: they are flat out wrong. Cases in this
circuit are legion that place the burden on the plaintiffs to negate a qualified-immunity defense. See, e.g.,
Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.
2009) (“When a defendant asserts qualified immunity
at summary judgment, the burden shifts to the plaintiff, who must clear two hurdles in order to defeat the
defendant’s motion. The plaintiff must demonstrate on
the facts alleged both that the defendant violated his
constitutional or statutory rights, and that the right
was clearly established at the time of the alleged
unlawful activity.” (citing Pearson v. Callahan, 555 U.S.
223, 232, 236–37 (2009))); Quinn v. Young, 780 F.3d
998, 1013 (10th Cir. 2015) (noting that it is “wellsettled” that “[t]he plaintiff bears the burden of citing
to us what he thinks constitutes clearly established
law.” (quoting Thomas v. Durastanti, 607 F.3d 655,
669 (10th Cir. 2010))); accord Cox v. Glanz, 800 F.3d
1231, 1245–46 (10th Cir. 2015); Est. of Taylor, 16
F.4th at 757.3 Therefore, the district court did not err
3 We recognize that some circuits interpret the relevant Supreme
Court precedent on this issue differently. Compare McClelland v.
Katy Indep. Sch. Dist., 63 F.4th 996, 1005 (5th Cir. 2023) (placing the
burden on plaintiffs to overcome a qualified immunity defense once
asserted, as we do), with Mack v. Yost, 63 F.4th 211, 227 (3d Cir.
2023) (“‘[T]he party asserting the affirmative defense of qualified
immunity’ bears the burden of persuasion on both prongs at summary judgment.” (quoting Halsey v. Pfeiffer, 750 F.3d 273, 288
(3d Cir. 2014))). But we have consistently read the Supreme
Court’s decision in Harlow v. Fitzgerald, 457 U.S. 800 (1982), as
App.15a
in placing the burden on Plaintiffs to defeat Defendants’ assertion of qualified immunity—more specifically, to show that Defendants’ conduct violated clearly
established law.
B
Our consideration of Plaintiffs’ second argument
reveals the fatal flaw in their appellate challenge:
they have not given us an adequate factual foundation
to assess whether the district court erred in determining
that they failed to carry their burden on the clearly
established law question. As we see things, we have
no occasion to assay the caselaw that Plaintiff identifies
as clearly established law. That is because Plaintiffs
showing of clearly established law fails at the threshold:
that is, they have failed to define a factual universe
grounded in record evidence that could form the foundation for our particularized inquiry into existing
clearly established law.
The magistrate judge’s Recommendation—and
by extension the district court’s order—rested on
extensive factual findings,4 which paint a menacing
only placing the burden on government officials to assert a qualified immunity defense; after that, the burden of proof shifts to
the plaintiffs to show that the officials are not entitled to qualified immunity. See, e.g., Cox, 800 F.3d at 1245– 46. Accordingly,
Plaintiffs’ contrary argument here borders on the frivolous.
4 The magistrate judge purported to rest his extensive findings
on undisputed facts and the record evidence, construed in Plaintiffs’ favor. In this regard, the judge stated:
On the surface, the parties’ briefings would seem to
indicate that this case is rife with genuine issues of
material fact. However, the evidence removes reasonable disputes as to the material facts. In particular,
App.16a
picture of Plaintiffs’ conduct that would at the very
least supply the Defendants with a solid basis to argue
cogently (if not dispositively) that their use of lethal
force did not violate clearly established law. Indeed,
in the “Statement of the Facts” section of their
response brief—which spans approximately nine
pages—Defendants portray Plaintiffs’ conduct in a
similarly threatening light and support their portrait
with extensive citations to evidence in the record. See
Aplees.’ Resp. Br. at 3–13.
Yet under the governing law, it is Plaintiffs’
version of the facts—insofar as it is supported by the
summary-judgment record—that must frame the legal
analysis, including the clearly established law inquiry.
This appeal has presented Plaintiffs with a platform
to explicate their record-based version of the facts.
And importantly, even if we are willing to assume that
in some circumstances this act of explication is simply
a matter of best practices, that certainly is not true
here: it is a legal obligation that Plaintiffs had to discharge, if they hoped to demonstrate that Defendants’
conduct violated their clearly established rights. This
is so where the district court adopted extensive factual
findings that seemingly undercut their version of the
the video evidence of each of the three stops is particularly insightful into what happened on the night in
question. When the video evidence contradicts the
parties’ versions of events, the Court adheres as
closely as possible to the video evidence. . . . With
that understanding, the following are the Court’s
findings of material facts that are relevant to the
Court’s analysis and either undisputed or supported
by the record, when viewed in the light most favorable
to Plaintiffs as the non-moving parties.
Aplts.’ App. at 50 (citations omitted).
App.17a
facts.5 And where, to make matters worse, Defendants have offered on appeal a detailed “Statement of
the Facts,” that likewise is at odds with Plaintiffs’
contentions regarding the allegedly non-threatening
nature of their conduct.
Far from discharging their legal obligation,
however, Plaintiffs have failed to define in any
meaningful manner a factual universe grounded in
record evidence that could form the foundation for our
inquiry into existing clearly established law. In other
words, Plaintiffs have failed to present their recordbased version of the events that bear on Defendants’
use of force for our use in evaluating the merits of
their legal challenge. Indeed, Plaintiffs did not even
include a “Statement of Facts” section in their
Opening Brief. Accordingly, we conclude that Plaintiffs have effectively waived our review of their appel-
5 This is not a situation where “the district court failed to set
forth the facts it believed a reasonable jury could find with
respect to the critical question[s] before us.” Lewis v. Tripp, 604
F.3d 1221, 1226 (10th Cir. 2010). On the contrary, the district
court fully adopted the Recommendation’s factual statement,
which contained extensive factual findings. Though when
reviewing a grant of summary judgment in the qualifiedimmunity context, “we need not defer to the district court’s performance of this [fact-finding] task,” Est. of Taylor, 16 F.4th at
758 n.5—if Plaintiffs hope to prevail—it is incumbent on them to
give us an alternative universe of record-based facts upon which
to conduct our qualified-immunity analysis. It is not enough to
assert in a conclusory fashion that the district court erred in its
fact-finding mission by failing to construe the record in the light
most favorable to them; instead, Plaintiffs must demonstrate the
correctness of this assertion by offering us an alternative, recordbased version of the facts that purportedly adheres more closely
to their version of the events at issue.
App.18a
late challenge to the district court’s clearly established law ruling. And for that reason, we reject Plaintiffs’ appellate challenge and uphold the district
court’s judgment.
As our discussion of the governing law supra
should have made patent, the clearly established law
inquiry is fact-intensive because it ordinarily focuses
on determining whether there is caselaw with
materially similar facts to the facts of the case before
the court. See, e.g., Hemry v. Ross, 62 F.4th 1248, 1256
(10th Cir. 2023) (“As with the force inquiry, our
evaluation is fact-intensive, and in the qualified
immunity context, we look for ‘a case where an
officer acting under similar circumstances was held to
have violated the Fourth Amendment.’” (quoting
District of Columbia v. Wesby, 583 U.S. 48, 64 (2018)));
accord Thomson, 584 F.3d at 1312. And, in the summary-judgment context, the plaintiff is obliged to define
the factual universe by reference to record evidence.
That is, the plaintiff has the burden of supporting her
version of events, as reflected in the plaintiff’s
complaint and arguments, with record evidence. See
Thomson, 584 F.3d at 1312; accord Koch v. City of Del
City, 660 F.3d 1228, 1238 (10th Cir. 2011). Absent this
record-based picture of the case facts, there is no foundation for the court to conduct a clearly established
law inquiry—that is, there are no facts grounded in
the evidence against which the court can compare the
facts of the caselaw that comprises clearly established
law. Stated otherwise, the plaintiff is obliged to offer
a record-supported version of the facts that would
reveal the unlawfulness of the defendants’ conduct—
when those facts are viewed through the prism of
App.19a
clearly established law. Here, Plaintiffs have completely failed to fulfill this obligation.
In the course of their briefing on the clearly established law question, Plaintiffs cite to only two portions
of the record. First, they cite to a section where the
district court questioned whether there were disputes
of fact that would raise triable factual issues bearing
on the alleged unconstitutionality of Defendants’
conduct but noted that, even if it were to resolve those
disputes in Plaintiffs’ favor, they would not prevail on
the issue of clearly established law. Second, Plaintiffs
seek—in a roundabout, indirect fashion—to rely on a
portion of the record in which the district court, in
resolving Defendants’ motions to dismiss, accepted as
true the facts of Plaintiffs’ complaint. However, these
citations are not enough to satisfy Plaintiffs’ obligation to define a record-based factual universe that we
may use in resolving the clearly established law question.
Regarding the first cited portion of the record,
recall that in resolving the clearly established law
question, the district court said the following:
Upon de novo review of the motions for summary judgment and the record evidence,
including the video evidence of the events of
that evening, the Court is skeptical whether,
absent the qualified immunity issues discussed herein, there would remain no
disputes of fact that would be suitable for a
jury—particularly regarding the circumstances under which various officers discharged their weapons; whether, at those
times, Plaintiffs were attempting to surrender
and had brought the Malibu to a full stop;
App.20a
and whether and in what direction(s) the
Malibu was moving at those times. However,
even if the Court were to find in favor of
Plaintiffs and conclude that these disputes of
fact raised material issues as to whether the
officers’ conduct was unconstitutional, this
would not be sufficient to defeat summary
judgment because Plaintiffs have not borne
their burden on the second prong of the qualified immunity analysis[.]
Aplts.’ App. at 226.
This passage could be liberally read—as Plaintiffs
suggest—as indicating that the court probably believed
that there were triable issues in certain factual areas
and that it was prepared to assume that, if those
issues were resolved in Plaintiffs’ favor, they would
indicate that Defendants’ conduct was unconstitutional.
See Aplts.’ Opening Br. at 29 (“[E]ven the District
Court in the Order of Dismissal appealed here[]
conceded . . . that disputes of material facts precluding
[Defendants’] summary judgment motions likely
existed. . . . ”). But the district court in this passage
spoke in general terms—simply reciting certain factual
areas in which there were probably disputed issues.
The court did not articulate with any specificity a
narrative— supported by citations to the record—
that conformed (at least as Plaintiffs see it) to Plaintiffs’ version of events. In effect, the court did the contrary, in that the court adopted the magistrate judge’s
extensive factual findings, which closely resemble
Defendants’ version of events. Putting aside our concerns about the district court’s approach in that
App.21a
regard,6 its general statement that it was willing to
assume certain disputed facts in Plaintiffs’ favor did
6 We do have concerns about the court’s treatment of the facts in
this case, but those concerns do not ultimately control the
outcome here. To start, the district court acknowledged that it
was “skeptical whether, absent the qualified immunity issues . . . ,
there would remain no disputes of fact that would be suitable for
a jury”—specifically, disputes that would “raise[] material issues
as to whether the officers’ conduct was unconstitutional.” Aplts.’
App. at 226. In effect, the district court was expressing
skepticism about whether the magistrate judge’s extensive statement of facts was, in actuality, fully undisputed and favorable to
Plaintiffs’ record-based version of events—which Plaintiffs
vigorously claimed it was not. That is, the district court was
suggesting that if the magistrate judge actually had taken Plaintiffs’ version into account, it likely would have given rise to the
triable issues of fact of which the district court spoke. Yet rather
than using its skepticism as a basis for rejecting portions of the
magistrate judge’s statement of undisputed facts—which the
court seemingly decided was not fully reflective of facts that were
undisputed and favorable to Plaintiffs’ record-based version of
events—the district court simply “incorporated” in full the magistrate judge’s statement of facts. Id. at 206. Furthermore,
though the court seemed to believe that it was likely that there
were triable issues of fact bearing on the alleged unconstitutionality of Defendants’ conduct, rather than making a definitive determination as to the existence of such facts for purposes of summary judgment and, as appropriate, resolving any material
disputes of fact in Plaintiffs’ favor, the court was willing only to
assume the existence of such triable issues of fact and to assume
their resolution in Plaintiffs’ favor.
This approach is problematic under controlling law. The district court was obliged to “undertake[] the essential task of
specifying what a reasonable jury could find the facts to be.”
Lewis, 604 F.3d at 1226. And the district court was required to
resolve any disputes of fact in the light most favorable to the
plaintiff unless “blatantly contradicted” by the video evidence,
before turning to the issue of clearly established law. Scott v.
Harris, 550 U.S. 372, 380 (2007); see Est. of Taylor, 16 F.4th at
756 (“[W]here the record does not unequivocally point in one
App.22a
nothing to relieve Plaintiffs of their burden here of
defining a record-based factual universe as to which
we could assess the existence of clearly established
law. For instance, nothing in the court’s general statements about the factual disputes it was prepared to
resolve in Plaintiffs’ favor equates to the specific
factual findings that Plaintiffs infer from it. Contrary
to Plaintiffs’ assertions, nowhere did the court say
that it was assuming as true that Defendants “fir[ed]
66 bullet shots into a vehicle occupied by three
unarmed people who were attempting to surrender
and posed no observable threat to the officers.” Aplts.’
Opening Br. at 26; see also Aplts.’ Reply Br. at 22 n.7
(stating conclusorily that “[Defendants] in the instant
case fired 66 bullet shots into a vehicle occupied by
direction and allows for a genuine dispute concerning the facts,
‘[a]ll disputed facts must be resolved in favor of the party
resisting summary judgment.’” (alteration in original) (quoting
McCoy v. Meyers, 887 F.3d 1034, 1044 (10th Cir. 2018))); Lewis,
604 F.3d at 1226 (“Only then [after the court has determined the
specific facts that a reasonable jury could infer based on the evidence] can the district court (and we, on appeal) undertake the
job of answering the question whether the defendant is entitled
to qualified immunity on those facts as a matter of law.”).
However, these concerns do not control the outcome here. As
we have stressed throughout this opinion, Plaintiffs bear the
burden of proof on the clearly established law issue, and clearly
established law does not exist in a vacuum; instead, such law
must be determined in relation to a specific set of facts. Irrespective
of the problems associated with the court’s approach in finding
the relevant facts here, in order to establish reversible error on
the clearly established law issue, it was incumbent on Plaintiffs
to define a universe of record-based facts upon which we could
conduct our clearly established law analysis. And Plaintiffs’ failure to do so scuppers their appellate challenge. See also supra note
5.
App.23a
three unarmed people who were attempting to surrender
and posed no observable threat to the officers”).
In other words, notwithstanding Plaintiffs’ contrary assertions, it cannot be reasonably argued that
the district court’s summary judgment order “along
with the relevant record cited and discussed therein,
results in it being assumed that none of the [Plaintiffs] were armed or an imminent threat to any
[Defendants], and in fact were attempting to surrender
as the [events] unfolded.” Aplts.’ Opening Br. at 28–
29. Rather than relying on the district court’s general
statements regarding the areas of fact that it was
willing to assume in Plaintiffs’ favor, Plaintiffs were
obliged to define here a record-based factual universe—
viewing the facts in the light most favorable to them—
which we could use in resolving the legal, clearly
established law issue. But Plaintiffs failed to do so.
And, second, Plaintiffs’ roundabout, indirect
reliance on the district court’s order resolving the
motions to dismiss does not advance the ball for them
one iota. In their briefing here, Plaintiffs quote from a
portion of the district court’s summary judgment order,
where the court was reciting the procedural history of
this case and specifically acknowledging—through
citations and parentheticals containing quoted language—its rulings in resolving the motions to dismiss.
In so doing, the district court quoted the following language: “Construing these facts as true, the Court finds
that plaintiffs have plausibly alleged that defendants
violated clearly established law by using deadly force,
without being in imminent danger, against plaintiffs,
who posed no threat to the officers and were not
resisting.” Aplts.’ App. at 210 (quoting Dist. Ct.’s
Order on Defs.’ Mots. to Dismiss, filed Sept. 30, 2020).
App.24a
However, Plaintiffs’ reliance on this portion of the
record where the district court was accepting as true
certain facts for purposes of resolving Defendants’
motions to dismiss is unavailing. It does not help
Plaintiffs to carry their burden of proof of defining a
universe of record-based facts to support our clearly
established law analysis. It is axiomatic that, in
resolving motions to dismiss, courts accept the wellpleaded factual averments of the plaintiff’s complaint
as true and construe the facts in the light most
favorable to the plaintiff. See, e.g., A.N. by & through
Ponder v. Syling, 928 F.3d 1191, 1196 (10th Cir. 2019)
(“We review ‘the district court’s denial of a motion to
dismiss based on qualified immunity de novo,
accepting as true all well-pleaded factual allegations
in the complaint and viewing the allegations in the light
most favorable to the non-moving party.’” (quoting
Wilson v. Montano, 715 F.3d 847, 852 (10th Cir.
2013)). Indeed, the district court recognized as much.
See Aplts.’ App. at 169 n.1 (noting that the order’s
“facts are taken from plaintiffs’ Amended Civil Rights
Complaint With Request for Trial by Jury and are
assumed true for purposes of this order unless
otherwise noted” (citations omitted)). However, this
pleading-based approach is inapposite in the summary-judgment context. In that context, as here, the
plaintiff cannot rest on her well-pleaded factual
averments; rather, the plaintiff must point to record
evidence supportive of the plaintiff’s position; this
means that, though ordinarily the court accepts plaintiff’s version of the facts as the starting point for the
legal analysis, that version will be cognizable only if it
is supported by record evidence. See, e.g., Thomson,
584 F.3d at 1312 (“[B]ecause at summary judgment
we are beyond the pleading phase of the litigation, a
App.25a
plaintiff’s version of the facts must find support in the
record.”).
As applied here, the upshot is this. The district
court properly accepted the well-pleaded factual
averments of Plaintiffs’ complaint in resolving the
motions to dismiss. And those averments did favor
Plaintiffs’ argument that the Defendants used excessive
force—in that, among other things, they depict Defendants as shooting at Plaintiffs’ vehicle, even though
Plaintiffs supposedly posed no threat to Defendants
and were not resisting. Yet Plaintiffs’ citation to the
portion of the record involving the district court’s
resolution of the motions to dismiss does not help
them carry their summary-judgment burden. Plaintiffs are no longer free to rely on the district court’s
acceptance of their complaint averments. Rather, Plaintiffs are obliged to demonstrate that their version of
the facts is supported by evidence in the record. Stated
otherwise, they are required to ground their version of
the facts in such evidence. Perhaps that record evidence would support Plaintiffs’ argument that the
Defendants used excessive force, as Plaintiffs’ complaint averments did. Perhaps not. But either way,
Plaintiffs are obliged here to rest their version of the
facts— upon which they seek to defeat Defendants’
assertion of qualified immunity—on record evidence, not
pleading averments. Only such a record-based version
of the facts could form the foundation for our clearly
established law analysis in the summary-judgment
context. Plaintiffs, however, have failed to provide us
with such a version of the facts; they cannot do so by
relying on the well-pleaded factual averments of the
complaint that the district court accepted as true at
the motion-to-dismiss stage of the proceedings.
App.26a
The inquiry into the existence of clearly established
law is not undertaken in a factual vacuum; rather, it
turns on the closeness of the fit of the facts contained
in the controlling caselaw to a universe of recordbased facts in the case at bar. Because Plaintiffs have
failed to define for us on summary judgment a
universe of record-based facts, we have no factual
foundation upon which to determine whether Defendants violated Plaintiffs’ clearly established legal rights.
Stated otherwise, by failing to define for us the
operative universe of record-supported facts, Plaintiffs have prevented us from determining what law
was clearly established. And because Plaintiffs bear
the burden of showing that applicable clearly established law defeats Defendants’ qualified-immunity
defense, this definitional failure as to the operative
factual universe sounds the death knell for their
appellate challenge. In short, we have no basis to
disturb the district court’s determination—on clearly
established law grounds—that Defendants are entitled
to qualified immunity.
V
For the above reasons, we AFFIRM the district
court’s judgment.
App.27a
JUDGMENT, U.S. COURT OF APPEALS
FOR THE TENTH CIRCUIT
(JUNE 28, 2024)
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
________________________
MARTA SANCHEZ;
THE ESTATE OF STEPHANIE LOPEZ;
DOMINIC MARTINEZ,
Plaintiffs-Appellants,
v.
ANTHONY GUZMAN, individually;
LUKE MCGRATH, individually;
JOSEPH CARNS, individually;
BRIAN MARTINEZ, individually,
Defendants-Appellees.
________________________
No. 22-1322
(D.C. No. 1:19-CV-01871-RMR-MEH) (D. Colo.)
Before: HOLMES, Chief Judge, McHUGH,
and CARSON, Circuit Judges.
This case originated in the District of Colorado
and was argued by counsel.
The judgment of that court is affirmed.
Entered for the Court
/s/ Christopher M. Wolpert
Clerk
App.28a
FINAL JUDGMENT, U.S. DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(AUGUST 30, 2022)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
________________________
MARTA SANCHEZ, ET AL.,
Plaintiffs,
v.
ANTHONY GUZMAN, ET AL.,
Defendants.
________________________
Civil Action No. 19-cv-01871-RMR-MEH
Before: Regina M. RODRIGUEZ, U.S. District Judge.
JUDGMENT
In accordance with the orders filed during the
pendency of this case, and pursuant to Fed. R. Civ. P.
58(a), the following Final Judgment is hereby entered.
Pursuant to the Order Accepting Magistrate
Judge’s Recommendation entered by Judge Regina M.
Rodriguez on August 30, 2022 (ECF No. 184), it is
ORDERED that judgment is entered in favor of
the Defendants and against the Plaintiffs. It is
FURTHER ORDERED that Plaintiffs’ remaining
claims and this case are DISMISSED WITH PREJUDICE.
App.29a
Dated at Denver, Colorado this 30th day of August,
2022.
FOR THE COURT:
Jeffrey P. Colwell
Clerk
By: /s/ K. Myhaver
Deputy Clerk
App.30a
ORDER, U.S. DISTRICT COURT FOR THE
DISTRICT OF COLORADO
(AUGUST 30, 2022)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
________________________
MARTA SANCHEZ, ET AL.,
Plaintiffs,
v.
ANTHONY GUZMAN, ET AL.,
Defendants.
________________________
Civil Action No. 19-cv-01871-RMR-MEH
Before: Regina M. RODRIGUEZ, U.S. District Judge.
ORDER
This matter is before the Court on the Recommendation of United States Magistrate Judge, ECF No.
179, entered by Magistrate Judge Michael E. Hegarty
on July 29, 2022. The Recommendation addresses
the Motions for Summary Judgment filed in this
case: (1) the Littleton Defendants’ Motion for Summary Judgment, ECF No. 144, and (2) Defendant Brian
Martinez’s Motion for Summary Judgment, ECF
No. 146, which were filed on February 4, 2022 and
which this Court referred to Magistrate Judge Hegarty
on February 8, 2022, ECF No. 150. Magistrate Judge
Hegarty recommends granting summary judgment on
App.31a
all of the remaining claims in this case, and for the
reasons stated below, the Court OVERRULES the
objections filed by Plaintiffs, ECF No. 180; ACCEPTS
and ADOPTS the Recommendation; GRANTS the
Motions for Summary Judgment; and DISMISSES
Plaintiffs’ claims WITH PREJUDICE.
I.
Background
The factual background of this case is more fully
laid out in the Recommendation. See ECF No. 179 at
1–2, 4–11. The Recommendation’s statement of facts
is incorporated herein by reference. See 28 U.S.C.
§ 636(b)(1)(B); Fed. R. Civ. P. 72(b). Accordingly, the
Court re-states the factual background only to the
extent necessary to address Plaintiffs’ Objections. As
stated in the Recommendation, these facts are “either
undisputed or supported by the record, when viewed
in the light most favorable to Plaintiffs as the nonmoving parties.” ECF No. 179 at 4.
On the evening of June 29, 2017, Defendant
Officers Anthony Guzman, Joseph Allen Carns, and
Luke McGrath were on duty with the Littleton Police
Department. Just before midnight, they received a
dispatch report that a white Chevy Malibu had been
carjacked by four individuals. One of the suspects was
armed and had fired a shot near the victim’s head,
according to the dispatch report. This constituted felony
auto theft in violation of Colorado Revised Statute
§ 18-4-409. See id. at 21. The officers responded to the
report in full police uniform, each driving a fully marked
police SUV. They observed the suspect Malibu driving
northbound on Santa Fe Drive. There were three
suspects in the vehicle at that time: Plaintiffs Marta
Sanchez and Dominic Martinez, as well as decedent
App.32a
Stephanie Lopez, whose Estate proceeds as the third
Plaintiff in this action. The officers began to follow the
Malibu with lights and sirens activated, but the
suspects did not yield.
Plaintiff Martinez estimated that the Malibu was
driving “at least” seventy-five miles per hour. The
suspects ran red lights at Oxford Avenue and Dartmouth
Avenue and began to weave between lanes. Officer
Carns observed the suspects narrowly avoid colliding
with a motorcycle, but Plaintiff Sanchez testified that
she did not recall almost hitting a motorcycle. Officer
Carns requested and was authorized to perform a
Pursuit Intervention Technique (“PIT”) maneuver once
speeds decreased, in order to stop the Malibu. Eventually, the Malibu appeared to skid and decelerate, and
at that time, Officer Carns performed the authorized
PIT maneuver. The Malibu spun roughly 170 degrees
and came to rest. This was the first of three “stops”
that took place during this pursuit, all of which were
captured on video that has been submitted to the
Court. Officer Brian Martinez of the Englewood Police
Department joined the other Defendant officers at the
third stop, in response to their dispatch call for assistance.
In total, the pursuit of the suspects in the
Malibu covered more than six miles and spanned
three jurisdictions, including Littleton, Englewood,
and Denver. Plaintiff Sanchez, who was the driver,
was shot multiple times. Plaintiff Lopez, who was in
the front passenger seat, was fatally shot. Plaintiff
Martinez, who was in the back seat, jumped out of the
moving vehicle at some point during the chase between
the first and second stops, unbeknownst to the officers,
and had no further involvement. He alleges that he
App.33a
does not know whether he was hit but had previously
told investigators that he had not been shot during the
entirety of the events. Plaintiffs argue that there are
disputes of fact as to what took place at each of the
three stops, including the circumstances under which
the various officers exerted force and fired their weapons
at Plaintiffs during those stops, that preclude summary
judgment. The facts regarding each of those stops are
more fully laid out in the Recommendation, and Plaintiffs’ arguments regarding their disputes of fact are
more fully laid out below. However, Plaintiffs have failed
to satisfy the “clearly established” prong of the qualified
immunity analysis. Therefore, as stated below, these
disputes of fact are not material to the motions for
summary judgment at issue.
The Plaintiffs filed their Civil Rights Complaint
with Request for Trial by Jury in this case on June 27,
2019. ECF No. 1. On January 17, 2020, Plaintiffs filed
an Amended Civil Rights Complaint with Request for
Trial by Jury (“Amended Complaint”), which is the
operative complaint in this case. ECF No. 54. The
Amended Complaint brought the following claims:
1.
Excessive force in violation of the Fourth and
Fourteenth Amendments, pursuant to 42
U.S.C. § 1983, against Defendants Guzman,
McGrath, Carns, and Martinez, except that
only Plaintiffs Sanchez and the Estate of
Stephanie Lopez—not Plaintiff Martinez—
brought this claim against Defendant Martinez, id. ¶¶ 74–96; see id. at 13 n.2;
2.
Monell violations, pursuant to 42 U.S.C.
§ 1983, against the City of Littleton; Defendant
Doug Stephens, Police Chief of Littleton, in
his official capacity; Defendant John Collins,
App.34a
Police Chief of Englewood, in his official
capacity; and the City of Englewood, id.
¶¶ 97–106;
3.
Negligence against all Defendants, id. ¶¶ 107–
13; and
4.
Wrongful death, pursuant to Colorado Revised
Statute §§ 13-21-201, 13-21-202, by Plaintiff
the Estate of Stephanie Lopez against Defendants Guzman, McGrath, Carns, and Martinez,
id. ¶¶ 114–16.
On January 31, 2020, Defendants filed a Motion to
Dismiss, ECF No. 62, and Partial Motion to Dismiss,
ECF No. 61. On September 30, 2020, the previously
presiding district judge, Chief Judge Brimmer, granted
in part and denied in part these motions. ECF No. 78
at 28–29. Chief Judge Brimmer dismissed Plaintiffs’
third claim of negligence as untimely filed and dismissed the fourth claim of wrongful death because the
Estate of Stephanie Lopez failed to timely file notice
of the claim pursuant to the Colorado Governmental
Immunity Act (“CGIA”). Id. at 7–9, 29. Chief Judge
Brimmer also found that Plaintiffs had failed to state
a Monell claim and dismissed that claim, as well. Id.
at 21–27, 29.
As for the excessive force claim arising under the
Fourth Amendment, Chief Judge Brimmer noted that,
“[t]o state a claim of excessive force under the Fourth
Amendment, a plaintiff must show both that a seizure
occurred and that the seizure was unreasonable.” Id.
at 10 (quoting Bella v. Chamberlain, 24 F.3d 1251, 1255
(10th Cir. 1994)). He found that “plaintiffs ha[d] not
sufficiently alleged that they were seized during the first
or second stops or that defendants violated clearly
App.35a
established law” and dismissed the excessive force
claim, with respect to Defendants Guzman, McGrath,
and Carns, “as to the first and second stops.” Id. at 14–
15. “Because defendants d[id] not raise any arguments
with respect to the third stop, plaintiffs’ first claim
survive[d] as to the third stop.” Id. at 15 n.11. As
such, Chief Judge Brimmer dismissed the claim for
excessive force under the Fourth Amendment “without
prejudice as to the first and second stops.” Id. at 29.
However, he denied the Fourth Amendment motion to
dismiss the excessive force claim against Defendant
Martinez because it was “based solely on the assumption
that Lopez had died before defendant Martinez arrived
at the scene and, as a result, Martinez could not have
participated in the seizure of Lopez – an assumption
the Court has rejected.” Id. at 16. Hence, the first claim
for excessive force arising under the Fourth Amendment
proceeded against Defendants Guzman, McGrath, and
Carns only as to the third stop and proceeded against
Defendant Martinez, who was only present for the
third stop.
As for the excessive force claim arising under the
Fourteenth Amendment, Chief Judge Brimmer noted
that, “where neither the Fourth nor the Eighth Amendments apply, courts ‘turn to the due process clauses of
the Fifth or Fourteenth Amendment and their protection against arbitrary governmental action by federal
or state authorities.’” Id. at 17 (quoting Porro v.
Barnes, 624 F.3d 1322, 1325 (10th Cir. 2010)); see also
id. at 18 (quoting Roska ex rel. Roska v. Peterson, 328
F.3d 1230, 1243 (10th Cir. 2003)) (“Force inspired by
malice or by unwise, excessive zeal amounting to an
abuse of official power that shocks the conscience may
be redressed under the Fourteenth Amendment.”)).
App.36a
The Defendants “argue[d] that plaintiffs have failed
to demonstrate that the actions of the defendants
who shot into plaintiffs’ vehicle were ‘conscienceshocking.’” Id. at 17–18 (citing ECF No. 61 at 6; ECF
No. 62 at 4). However, Chief Judge Brimmer found
that the facts “as alleged, demonstrate a degree of
outrageousness and harm that could be construed as
conscience-shocking depending on the context, to be
revealed through further discovery.” Id. at 19; see
also id. at 21 (“Construing these facts as true, the
Court finds that plaintiffs have plausibly alleged that
defendants violated clearly established law by using
deadly force, without being in imminent danger, against
plaintiffs, who posed no threat to the officers and were
not resisting.”). Hence, he “f[ou]nd[] that plaintiffs have
stated an excessive force claim under the Fourteenth
Amendment.” Id. at 21. Accordingly, following Chief
Judge Brimmer’s Order, ECF No. 78, regarding the
Motions to Dismiss, ECF Nos. 61, 62, the only claim
that proceeded in this case was the first claim for
excessive force in violation of the Fourteenth Amendment, as well as the first claim for excessive force in
violation of the Fourth Amendment, but only as to the
third stop. ECF No. 78 at 28–29.
On July 6, 2021, this matter was reassigned to
the undersigned. ECF No. 109. On February 4, 2022,
Defendants Carns, Guzman, and McGrath filed a
Motion for Summary Judgment, ECF No. 144, as did
Defendant Martinez, ECF No. 146. The undersigned
referred the motions to Magistrate Judge Hegarty. ECF
No. 150. Magistrate Judge Hegarty’s Recommendation
on the motions for summary judgment was served on
the parties on July 29, 2022. ECF No. 179. On August
App.37a
12, 2022, Plaintiffs timely1 filed Plaintiffs’ Objections
to Magistrate’s Recommendations on Defendants’
Motions for Summary Judgment, ECF No. 180. No
other objection has been filed. On August 26, 2022,
Defendants filed Responses to Plaintiffs’ Objections.
ECF Nos. 182, 183.
II. Legal Standard
The Court is required to make a de novo determination of those portions of a magistrate judge’s recommendation to which a specific, timely objection has
been made, and it may accept, reject, or modify any or
all of the magistrate judge’s findings or recommendations. 28 U.S.C. § 636(b)(1) (“A judge of the court shall
make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.”); Fed. R. Civ. P. 72
(b)(3) (“The district judge must determine de novo
any part of the magistrate judge’s disposition that has
been properly objected to.”); see United States v. One
Parcel of Real Property, 73 F.3d 1057, 1060 (10th Cir.
1996) (“[A] party’s objections to the magistrate judge’s
report and recommendation must be both timely and
specific to preserve an issue for de novo review by the
district court or for appellate review.”).
III. Analysis
Plaintiffs enumerate five objections to the
Recommendation:
1 As noted in the Recommendation, parties are required to file
objections to the Recommendation within fourteen days after its
service in order to be entitled to review by a district judge. See
ECF No. 179 at 27 n.2 (citing Fed. R. Civ. P. 72).
App.38a
•
First, Plaintiffs object to the Recommendation’s factual findings regarding the first stop,
stating that “the Recommendation makes an
unsubstantiated factual determination that
‘Officer Guzman did not fire until the vehicle
started moving,’” noting that the Recommendation “cit[ed] video exhibits” but “disregarded
sworn testimony from the Plaintiffs.” ECF
No. 180 at 7–10.
•
Second, Plaintiffs object to the Recommendation’s factual findings regarding the second
stop, stating that the Recommendation makes
“conclusions of fact that are directly contradicted by the defendants’ own testimony and
video evidence”—first, “that Carns fired five
rounds through the rear windshield as the car
was reversing”; second, that “the Recommendation again rejected Sanchez’s testimony that
Officers fired on the Malibu while they sought
to surrender and were stopped at the second
location”; and third, that the Recommendation “provides no record cite for” its finding
that “Lopez immediately began to look and
reach toward the Malibu’s floorboard at the
second stop,” such that the officers could
infer that she was reaching for a weapon, and
that this finding is contradicted by Officer
Carns’ testimony. Id. at 10–13.
•
Third, Plaintiffs object to the Recommendation’s factual findings regarding the third
stop, stating that the video footage “directly
contradicts” the Recommendation’s finding
that “the Malibu began to move forward and
App.39a
then turn toward the direction of Officer
Martinez.” Id. at 13.
•
Fourth, Plaintiffs object to the Recommendation’s conclusion that there was no clearly
established law to support the second of
Plaintiffs’ two-pronged burden to withstand
a qualified immunity defense. See id. at 13–
14.
•
Fifth, Plaintiffs object to the fact that the
Recommendation explicitly declined to analyze
both prongs of Plaintiffs’ burden to withstand
the qualified immunity defense and instead
found that Defendants enjoy qualified immunity based on the second of the two requirements—that there was clearly established
law regarding Plaintiffs’ constitutional rights
at the time of the incident that Defendants
violated. See id. at 14–15. In addition, Plaintiffs object to the Recommendation’s disposition of their Fourteenth Amendment claims,
stating that “[t]he Recommendation fails to
analyze a single case cited by the Plaintiffs
that supports their Fourteenth Amendment
rights were clearly established at the time of
the incident.” Id. at 15– 16.
The Court addresses each objection in turn below, although not necessarily in the order listed above.
A. The Recommendation’s Application of the
Second Prong of the Qualified Immunity
Analysis
First, the Court may easily dispense with Plaintiffs’
objection to the fact that the Recommendation only
App.40a
analyzes the second of the two-pronged qualified
immunity test. See ECF No. 180 at 3, 13–15. Plaintiffs
cite Pearson v. Callahan, 555 U.S. 223, 232 (2009) for
the proposition that a court “must conduct a two-part
analysis: the constitutional right at issue, and whether
it was ‘clearly established’ at the time of the incident.”
Id. at 3. However, not only the case law cited in the
Recommendation and numerous other Tenth Circuit
and Supreme Court cases, but also Plaintiffs’ own
cited case law establishes that a court may conduct
the qualified immunity analysis in any order it
chooses.
In fact, Pearson was the case in which the
Supreme Court relaxed the previous “rigid order of
battle” in a qualified immunity case that required
courts to embark on, first, the inquiry of “whether the
facts that a plaintiff has alleged . . . make out a violation of a constitutional right” and, second, “if the
plaintiff has satisfied the first step . . . whether the
right at issue was ‘clearly established’ at the time of
defendant’s alleged misconduct.” 555 U.S. at 232, 234,
236, cited in ECF No. 180 at 3. The Supreme Court
held in that case that, “[o]n reconsidering the procedure . . . , we conclude that, while the sequence set
forth there is often appropriate, it should no longer be
regarded as mandatory.” Id. at 236. “The judges of the
district courts and the courts of appeals 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 in the particular case at hand.” Id. The
Supreme Court reasoned that “[t]here are cases in which
it is plain that a constitutional right is not clearly
App.41a
established but far from obvious whether in fact there
is such a right.” Id. at 237.
The Recommendation, itself, pointed out this
holding of the Supreme Court in Pearson before then
proceeding with the “clearly established” prong of the
analysis. See ECF No. 179 at 12. The Recommendation
also cited one of numerous Tenth Circuit cases noting
that courts may engage in the two-pronged qualified
immunity analysis in whichever order they deem
necessary. See Christensen v. Park City Mun. Corp.,
554 F.3d 1271, 1277 (10th Cir. 2009) (“[T]he Supreme
Court jettisoned its prior holding that courts in qualified immunity cases must determine whether the
plaintiff’s constitutional rights were violated before
turning to whether the asserted right was clearly
established.”); see also, e.g., Ashcroft v. Al-Kidd, 563 U.S.
731, 735 (2011) (“We recently reaffirmed that lower
courts have discretion to decide which of the two prongs
of qualified-immunity analysis to tackle first.”); Weise
v. Casper, 593 F.3d 1163, 1167 (10th Cir. 2010) (quoting
Pearson, 555 U.S. at 236) (“In their discretion, courts
are free to decide which prong to address first ‘in light
of the circumstances of the particular case at hand.’”).
Hence, Plaintiffs’ statement of the law—that
“[t]here is no case in the United States that allows a
court to skip the essential first prong of identifying the
constitutional violation at issue before requiring a
plaintiff to provide clearly established law,” ECF No.
180 at 15 (emphasis in original)—is patently wrong.
Instead, it is a plaintiff’s burden to rebut a defendant’s
invocation of the qualified immunity defense by
establishing both that “(1) the defendant violated a
constitutional or statutory right and (2) this right was
App.42a
clearly established at the time of the defendant’s challenged conduct.” See, e.g., Estate of Valverde ex rel.
Padilla v. Dodge, 967 F.3d 1049, 1058 (10th Cir. 2020).
It is then the Court’s prerogative to analyze whichever
qualified immunity prong it deems proper first, before
moving on to the next prong. For these reasons, Plaintiffs’ objection to the fact that the Recommendation
started and completed its analysis with the second of
the two requirements that Plaintiffs must meet in order
to defeat a qualified immunity defense is OVERRULED.
B. The Recommendation’s Disposition of the
Fourteenth Amendment Claim
Plaintiffs also object that “[t]he Recommendation
. . . relegated the analysis of the Plaintiffs’ Fourteenth
Amendment claims to a Footnote,” ECF No. 180 at 15,
in which the Recommendation notes that, “[t]o the
extent, any of Plaintiffs’ Fourteenth Amendment
claims survive in light of Torres v. Madrid, 141 S.Ct.
989 (2021), they have failed to meet their burden of
pointing to clearly established law for any violation of
the Fourteenth Amendment,” ECF No. 179 at 27 n.1,
quoted in ECF No. 180 at 15. Plaintiffs argue that the
“Recommendation fails to analyze a single case cited
by the Plaintiffs that supports their Fourteenth Amendment rights were clearly established at the time of the
incident.” ECF No. 180 at 15.
Plaintiffs do not dispute that, as the previously
presiding district judge noted in ruling on the motions
to dismiss in this case, see ECF No. 78 at 16–17,
“[s]ubstantive due process analysis is appropriate in
cases that involve excessive force where a specific constitutional provision—such as the Fourth or Eighth
Amendment—does not apply.” Roska, 328 F.3d at
App.43a
1243 (emphasis added); see also Estate of Booker v.
Gomez, 745 F.3d 405, 419 (10th Cir. 2014) (“And when
neither the Fourth nor Eighth Amendment applies—
when the plaintiff finds himself in the criminal justice
system somewhere between the two stools of an initial
seizure and post-conviction punishment—we turn to
the due process clauses of the Fifth or Fourteenth
Amendment and their protection against arbitrary
governmental action by federal or state authorities.”).
After the previously presiding district judge allowed
Plaintiffs’ Fourteenth Amendment claims to survive the
motions to dismiss in this case, see ECF No. 78 at 21
(dated September 30, 2020), the Supreme Court
issued its decision in Torres.
In Torres, the Supreme Court vacated the Tenth
Circuit’s decision that the Fourth Amendment’s protection against unreasonable seizures did not apply to
an excessive force claim where police officers fired
their service pistols to stop a suspect from driving
away. 141 S.Ct. at 1003. The Tenth Circuit had reasoned
that “‘no seizure can occur unless there is physical
touch or a show of authority,’ and . . . ‘such physical
touch (or force) must terminate the suspect’s movement’ or otherwise give rise to physical control over
the suspect.’” Id. at 994 (quoting Torres v. Madrid,
769 F. App’x 654, 657 (10th Cir. 2019)). However, the
Supreme Court held, instead, that “the application of
physical force to the body of a person with intent to
restrain is a seizure even if the person does not submit
and is not subdued.” Id. at 1003. Therefore, “the
officers’ shooting applied physical force to [Torres’]
body and objectively manifested an intent to restrain
her from driving away.” Id. at 999. The Supreme
Court “[t]herefore conclude[d] that the officers seized
App.44a
Torres for the instant that the bullets struck her.” Id.
Given this holding in Torres, it is likely that the
Fourteenth Amendment would not apply to Plaintiffs’
claims here and that the claims should instead be
analyzed under the “specific constitutional provision”
of the Fourth Amendment. See Roska, 328 F.3d at
1243; see also Pauly v. White, 874 F.3d 1197, 1214–15
(10th Cir. 2017) (“[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.”) (emphasis and alteration in original). Hence,
as to the Fourteenth Amendment claim, given Torres,
Plaintiffs would likely be unable to carry their first
burden to withstand qualified immunity, which is to
establish a violation of a constitutional right.
However, the Court need not reach the issue of
whether Torres precludes Plaintiffs from carrying
their burden under the first prong of the qualified
immunity analysis because, even if they could, the
Court is bound to follow Tenth Circuit and Supreme
Court precedent regarding the Plaintiffs’ burden under
the second prong of the qualified immunity analysis
and therefore agrees with the Recommendation’s conclusion that Plaintiffs “failed to meet their burden of
pointing to clearly established law for any violation of
the Fourteenth Amendment.” See ECF No. 179 at 27
n.1. The Supreme Court has “repeatedly told courts
. . . not to define clearly established law at a high level
of generality.” Mullenix v. Luna, 577 U.S. 7, 12 (2015).
“The dispositive question is ‘whether the violative
nature of the particular conduct is clearly established.’”
Id. (quoting Al-Kidd, 563 U.S. at 742) (emphasis in
App.45a
original). “This inquiry ‘must be undertaken in light
of the specific context of the case, not as a broad general proposition.’” Id. (quoting Brosseau v. Haugen,
543 U.S. 194, 198 (2004)). As the Recommendation notes,
to show that a defendant violated clearly established
law in the second of a plaintiff’s two-pronged burden
to withstand qualified immunity, although “[t]he
question is not whether there is a prior case with
precisely the same facts,” a plaintiff must point to law
that “put[s] officials on fair notice that the described
conduct was unconstitutional.” Mayfield v. Bethards,
826 F.3d 1252, 1258 (10th Cir. 2016), quoted in ECF
No. 179 at 18. “The plaintiff bears the burden of citing
. . . what he thinks constitutes clearly established law.”
Thomas v. Durastani, 607 F.3d 655, 669 (10th Cir.
2010); see also Gutierrez v. Cobos, 841 F.3d 895, 903
(10th Cir. 2016); Rojas v. Anderson, 727 F.3d 1000,
1004 (10th Cir. 2013); Smith v. McCord, 707 F.3d
1161, 1162 (10th Cir. 2013); ECF No. 179 at 18.
In their Objection, Plaintiffs point only to Roska
ex rel. Roska v. Peterson, 328 F.3d 1230, 1243 (10th
Cir. 2003) as a case that sets forth “the factors required
for a Fourteenth Amendment violation.” ECF No. 180
at 15. However, the facts of Roska do not resemble the
facts of this case in any way. Roska involved allegations
of Fourth and Fourteenth Amendment violations
arising from a child being removed from his family
and put into protective custody, where school employees and case workers suspected that the child’s mother
suffered from a “disorder where an individual, usually
a mother, inflicts physical harm upon his or her
children in order to gain the sympathy and attention
of medical personnel.” See 328 F.3d at 1238. That case
did not involve potentially armed individuals suspected
App.46a
of felony car theft fleeing police in a car chase, as here.
Roska, which in no way involves conduct similar to the
conduct at issue here, does not carry Plaintiffs’ burden
to point to clearly established law.
Nor do any of the cases cited in Plaintiffs’ Opposition to Littleton Defendants’ Motion for Summary
Judgment carry Plaintiffs’ burden to point to clearly
established law that the Defendants violated. See ECF
No. 158 at 16–17 (citing Uhrlig v. Harder, 64 F.3d 567,
573 (10th Cir. 1995) (involving allegations that the decision to terminate a mental hospital’s special unit
reserved for the criminally insane was reckless and
led to the placement in the general hospital population
of a patient who killed the plaintiff’s deceased wife, a
music and activity therapist for the hospital); Ruiz v.
McDonnell, 299 F.3d 1173, 1178 (10th Cir. 2002)
(involving allegations that a child suffered severe
head injuries consistent with violent shaking while at
a day care that should not have been licensed by the
Colorado Department of Human Services because the
owners had a history of domestic violence and the day
care lacked public liability insurance)); see also ECF
No. 180 at 15 (citing ECF No. 158 at 13–15). Plaintiffs
have failed to carry their burden to defeat the qualified
immunity defense as to the Fourteenth Amendment
excessive force claim.
C. The Recommendation’s Conclusion that
Plaintiffs Failed to Point to Clearly
Established Law to Withstand the
Qualified Immunity Defense as to the
Fourth Amendment Claim
Regarding the Fourth Amendment claim, Plaintiffs
object that “the Recommendation’s assertion that there
App.47a
is no case law that would have placed the Defendant’s [sic] on notice of their unconstitutional actions is
inaccurate.” ECF No. 180 at 13. First, Plaintiffs argue
that they have “provided ample case law from the
Tenth Circuit, the Supreme Court, and sister circuits
that placed the Defendants’ [sic] directly on notice of
constitutional violations for their uses of excessive
force.” Id. at 13–14 (citing id. at 3–6). To the extent
Plaintiffs provide any case law for this purpose in
their Objection that they did not raise in their original
briefing on the motions for summary judgment, any
argument that such case law provides clearly established law that fulfills their burden to withstand a
qualified immunity defense is waived. See, e.g., Gilbert
v. United States Olympic Committee, 423 F. Supp. 3d
1112, 1125 (D. Colo. 2019) (Arguello, J.) (citing Marshall
v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996)) (“Parties
may not raise in their objections any novel arguments
that they did not raise before the magistrate judge.
Such arguments are deemed waived.”). Further, to the
extent Plaintiffs provide case law that was decided
after the events of the evening of June 29–30, 2021,
such case law did not provide a “clearly established”
constitutional right at that time. See, e.g., Ullery v.
Bradley, 949 F.3d 1282, 1291 (10th Cir. 2020)
(quoting District of Columbia v. Wesby, 138 S. Ct.
577, 589 (2018)) (“To be clearly established, a legal
principle must have a sufficiently clear foundation in
then-existing precedent.”).
As for the remaining case law Plaintiffs cite in
their Objection, the Court agrees with the Recommendation’s conclusion that this case law would not
have put the officers on notice that their conduct at
App.48a
the third stop would violate Plaintiffs’ clearly established Fourth Amendment constitutional rights in the
context of a car chase of potentially armed felony
suspects by law enforcement officers. See Tennessee v.
Garner, 471 U.S. 1, 4 (1985) (involving a suspect who
was shot in the back of the head while climbing over a
fence on foot after instruction from officer to halt);
Graham v. Connor, 490 U.S. 386, 389 (1989) (involving
officers’ conduct during an investigatory stop when a
diabetic individual suffering from the onset of an
insulin reaction “got out of the car, ran around it
twice, and finally sat down on the curb, where he
passed out briefly” and officers “rolled [him] over on
the sidewalk and cuffed his hands tightly behind his
back,” “lifted [him] up from behind, carried him over
to [the] car, and placed him face down on its hood,”
“shoved his face down against the hood of the car,” and
“threw him headfirst into the police car”); Carabajal
v. City of Cheyenne, 847 F.3d 1203, 1206, 1211, 1212
(10th Cir. 2017) (holding that officer was entitled to
qualified immunity where, after noticing that he was
being followed by a police vehicle with its lights and
sirens activated, an individual “drove for several
blocks” and then pulled over; the officers stepped in
front of the vehicle; the vehicle began to move forward;
the officer fired two rounds from his shotgun and
severely injured the driver; and the officers removed
the driver from the vehicle); Morris v. Noe, 672 F.3d
1185, 1190, 1198 (10th Cir. 2012) (holding that officers
did not have qualified immunity where, on foot, they
“lunge[d] towards [Morris] and put their hands on his
shoulders, twisted him around and ran him into the
bushes . . . throwing him to the ground”); Cavanaugh
v. Woods Cross City, 625 F.3d 661, 663–67 (10th Cir.
2010) (holding that officer did not have qualified
App.49a
immunity where he “discharged [a] Taser into Ms.
Cavanaugh’s back without warning” while she was
walking toward her front door); Casey v. City of
Federal Heights, 509 F.3d 1278, 1279–80, 1282–86
(10th Cir. 2007) (holding that officers were not entitled
to qualified immunity when they “grabbed, tackled,
Tasered, and beat[]” an individual “suspected of innocuously committing a misdemeanor [taking his case
file out of the courthouse while retrieving money from
his car to pay a fine], who was neither violent nor
attempting to flee”); Scott v. Henrich, 39 F.3d 912,
914–16 (9th Cir. 1994) (affirming summary judgment
in favor of defendant officers where officers responded
to reports of a man firing gunshots at a nearby address;
banged on the door and yelled “something to the effect
of ‘Police, police officers, open up’”; an individual
opened the door with a “long gun” and pointed it at
them; and the officers fired shots, one of which fatally
wounded the individual). These cases do not provide
clearly established law regarding Plaintiffs’ Fourth
Amendment rights during a car chase that Defendants would have violated through the “described
conduct” here. See Mayfield, 826 F.3d at 1258; see also
Mullenix, 577 U.S. at 12.
Second, Plaintiffs argue that “the Recommendation’s reliance on Mullenix v. Luna is flawed as that
case is clearly distinguishable from the present matter.”
ECF No. 180 at 14. According to Plaintiffs, unlike in
Mullenix, which involved a fleeing vehicle that was
driving at “speeds between 85 and 110 miles per hour,”
here, the Malibu was “not moving” when “the officer[s]
fired at them” in the first and second stops and when,
at the third stop, “Officer Guzman rammed the car at
approximately 60 MPH” while it was allegedly not
App.50a
moving and then “Guzman and Officer Martinez fired
at [the car] while it was rolling at an ‘idle-ish’ speed
and Guzman kept firing multiple rounds after the
Malibu stopped and Officer Martinez shouted at him
to cease fire.” Id. at 14 (quoting Mullenix, 577 U.S.
at 8).
However, whether the facts here are exactly “on
all fours” with the facts in Mullenix is not determinative. See Mayfield, 826 F.3d at 1258. As concluded
in the Recommendation, what is determinative here is
Plaintiffs’ “failure to cite binding authority from a car
chase case,” which is “fatal to their opposition of qualified immunity.” ECF No. 179 at 25. The Recommendation concluded that “[o]n that basis alone, Plaintiffs
have failed to meet their burden, and Defendants are
entitled to qualified immunity.” Id. The Recommendation simply discussed Mullenix because it was
“conspicuously absent from Plaintiffs’ briefing” and
provided additional reasons to find that Plaintiffs had
failed to bear their burden to withstand qualified
immunity. See id. at 25–26; see also Mullenix, 577
U.S. at 15 (“The Court has thus far never found the
use of deadly force in connection with a dangerous car
chase to violate the Fourth Amendment, let alone to
be a basis for denying qualified immunity.”). Therefore,
any distinctions Plaintiffs may point to between their
case and Mullenix do not change the Court’s conclusion
that the Magistrate Judge’s recommendation to grant
summary judgment in favor of Defendants is a sound
determination of the facts and the law.
Third, Plaintiffs argue that the Recommendation
imparted “improper deference to the Defendants’
proposed facts, while disregarding contradictory video
evidence, weighing the Plaintiffs’ credibility against
App.51a
them, and disregarding the defendants’ sworn testimony when it conflicts with the Magistrate’s opinion
of the video evidence.” ECF No. 180 at 14. This argument refers to Plaintiffs’ specific objections regarding
the Recommendations’ findings of fact, which are
addressed below.
D. The Recommendation’s Findings of Fact
as to the Three Stops
Plaintiffs’ remaining objections raise issues regarding the Recommendations’ findings of fact of what
occurred during each of the three stops that took place
on the night in question. As stated above, Plaintiffs
object to the Recommendation’s factual findings as
follows:
1.
Regarding the first stop, Plaintiffs argue that
the Recommendation “makes an unsubstantiated factual determination that ‘Officer
Guzman did not fire until the vehicle started
moving’” but that this finding contradicts
Plaintiffs’ sworn testimony that the officer
opened fire while the Malibu was stopped
and in park and the Plaintiffs’ hands were in
the air. ECF No. 180 at 7–8. Plaintiffs argue
that “[w]hether Sanchez was driving at the
time Guzman started firing is a disputed
material fact that cannot be resolved at summary judgment.” Id. at 10.
2.
Regarding the second stop, Plaintiffs argue
that the Recommendation makes “conclusions
of fact that are directly contradicted by the
defendants’ own testimony and video evidence.” Id. at 10. First, “that Carns fired five
rounds th[r]ough the rear windshield.” Id.
App.52a
Plaintiffs argue that “[t]he video explicitly
reflects that the only time Carns would be in
the position to shoot the front seat passenger
through the ‘rear windshield’ is . . . when the
Malibu is driving down the street – not after
it reversed over the curb.” Id. at 11. Second,
Plaintiffs argue that:
The Recommendation found that Officer
Guzman fired at least three shots . . . ,
moved behind his car . . . , then the
Plaintiff’s car is seen reversing and
moving . . . , approximately 4-6 seconds
after Guzman began firing at the car.
The Magistrate admits that the video
does not show the Malibu moving until
four seconds after the alleged shots. . . . If
the video shows no vehicle moving prior
to Guzman’s three shots, the reasonable
inference is that the vehicle is not
moving prior to those shots – and thus
creating no danger for anybody.
Id. at 11–12. Third, Plaintiffs argue that the
Recommendation “provides no record cite” for
its finding that at the second stop, “Lopez
immediately began to look and reach toward
the Malibu’s floorboard,” giving rise to the
inference that she was reaching for a weapon.
Id. at 12–13. Plaintiffs argue that this
finding is “directly contradicted by the
shooter’s, Carns, sworn testimony . . . that at
no point during the pursuit did he see Lopez
present a threat of harm, and he did not see
the passenger move.” Id.
App.53a
3.
Finally, regarding the third stop, Plaintiffs
argue that “the video footage contradicts
[the] finding” in the Recommendation that
“the Malibu began to move forward and then
turn toward the direction of Officer Martinez.”
Id. at 13 (quoting ECF No. 179 at 10 ¶ 29; id.
at 17). According to Plaintiffs, Martinez “is
clearly seen in the video walking towards the
Malibu firing his weapon,” while neither he
nor the other officers were heard giving commands to the occupants of the vehicle. Id.
Plaintiffs further argue that Guzman’s affidavit stating that he was in fear of Officer
Martinez’s life and of the safety of the public
when he fired eleven rounds through the
Malibu’s windshield is merely “self-serving.”
Id.
Upon de novo review of the motions for summary
judgment and the record evidence, including the video
evidence of the events of that evening, the Court is
skeptical whether, absent the qualified immunity
issues discussed herein, there would remain no disputes
of fact that would be suitable for a jury—particularly
regarding the circumstances under which various
officers discharged their weapons; whether, at those
times, Plaintiffs were attempting to surrender and
had brought the Malibu to a full stop; and whether
and in what direction(s) the Malibu was moving at
those times. However, even if the Court were to find
in favor of Plaintiffs and conclude that these disputes
of fact raised material issues as to whether the
officers’ conduct was unconstitutional, this would not
be sufficient to defeat summary judgment because
Plaintiffs have not borne their burden on the second
App.54a
prong of the qualified immunity analysis, as discussed
above. Therefore, Plaintiffs’ attempts to raise disputes
of fact are not material to the Court’s determination
that summary judgment is warranted, and these
objections are OVERRULED.
IV. Conclusion
For the reasons stated above, it is
ORDERED that Plaintiffs’ Objections to Magistrate’s Recommendations on Defendants’ Motions for
Summary Judgment, ECF No. 180, are OVERRULED;
it is
FURTHER ORDERED that the Recommendation
of United States Magistrate Judge, ECF No. 179, is
ACCEPTED and ADOPTED; it is
FURTHER ORDERED that the Littleton Defendants’ Motion for Summary Judgment, ECF No. 144,
and Defendant Brian Martinez’s Motion for Summary
Judgment, ECF No. 146, are GRANTED; and it is
FURTHER ORDERED that Plaintiffs’ remaining
claims and this case are DISMISSED WITH PREJUDICE.
Dated: August 30, 2022
BY THE COURT:
/s/ Regina M. Rodriguez
United States District Judge
App.55a
RECOMMENDATION OF MAGISTRATE
JUDGE, U.S. DISTRICT COURT FOR THE
DISTRICT OF COLORADO
(JULY 29, 2022)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
________________________
MARTA SANCHEZ, THE ESTATE OF STEPHANIE
LOPEZ, and DOMINIC MARTINEZ,
Plaintiffs,
v.
ANTHONY GUZMAN, individually, L
UKE MCGRATH, individually,
JOSEPH CARNS, individually,
and BRIAN MARTINEZ, individually,
Defendants.
________________________
Civil Action No. 19-cv-01871-RMR-MEH
Before: Michael E. HEGARTY,
U.S. Magistrate Judge.
RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Michael E. Hegarty, United States Magistrate Judge.
Before the Court are the motions for summary
judgment filed by Defendants Anthony Guzman, Luke
McGrath, and Joseph Carns (together, “Littleton
App.56a
Defendants”) (ECF 144) and Defendant Brian Martinez
(ECF 146). The motions are fully briefed and have
been referred to this Court for disposition. The Court
finds that oral argument would not materially assist
in their adjudication. For the following reasons, the
Court respectfully recommends granting the motions.
BACKGROUND
The Littleton Defendants responded to a dispatch
that informed them of a reported carjacking with a
potentially armed suspect. Marta Sanchez was the
driver of the suspected stolen vehicle, a Chevy Malibu,
and Stephanie Lopez and Dominic Martinez were
passengers in that vehicle. When the Littleton Defendants encountered the Malibu, they pursued the
vehicle while Ms. Sanchez failed to yield. Using a
Pursuit Intervention Technique (“PIT maneuver”),
the Littleton Defendants were able to briefly stop the
Malibu. To evade capture, the Malibu fled the scene,
which prompted some of the officers to shoot at the
vehicle. The chase resumed, which again was briefly
terminated by the use of a PIT maneuver. Undeterred,
the Malibu escaped police capture once more, and
additional shots were fired by the officers. At the third
and final stop of this chase, Ms. Sanchez lost control
of the vehicle, which skidded to a stop. Before she
could get the car moving again, one of the officers used
his vehicle to ram the Malibu. Officer Martinez joined
the Littleton Defendants at this stop. Eventually
surrounded by officers again, Ms. Sanchez made one
final attempt at escape. A last round of gunfire ended
that plan.
Through the course of that evening, Ms. Sanchez
was shot multiple times, and Ms. Lopez was fatally
App.57a
shot. Mr. Martinez jumped out of the car (unbeknownst
to the officers) at some point during the chase. Ms.
Sanchez, Mr. Martinez, and the Estate of Ms. Lopez
filed suit on June 27, 2019, alleging violations of their
Fourth and Fourteenth Amendment rights for excessive
force. ECF 1. Following a ruling on motions to dismiss
by Chief Judge Philip A. Brimmer, the only remaining
claims are those against the Littleton Defendants and
Officer Martinez. ECF 78. After a tumultuous discovery
period with no less than six discovery conferences, the
Littleton Defendants and Officer Martinez have moved
for summary judgment on all remaining claims. ECF
144; ECF 146.
STANDARDS OF REVIEW
A motion for summary judgment serves the
purpose of testing whether a trial is required. Heideman
v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th Cir.
2003). A court shall grant summary judgment if
the pleadings, depositions, answers to interrogatories,
admissions, or affidavits show there is no genuine
issue of material fact, and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(c).
A fact is material if it might affect the outcome of the
suit under the governing substantive law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The moving party bears the initial responsibility
of providing to the court the factual basis for its
motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). “[W]here the moving party has the burden of
proof—the plaintiff on a claim for relief or the defendant
on an affirmative defense—his[, her, or its] showing
must be sufficient for the court to hold that no
reasonable trier of fact could find other than for the
App.58a
moving party.” Leone v. Owsley, 810 F.3d 1149, 1153
(10th Cir. 2015) (quoting Calderone v. United States,
799 F.2d 254, 259 (6th Cir. 1986)). “In other words, the
evidence in the movant’s favor must be so powerful
that no reasonable jury would be free to disbelieve it.
Anything less should result in denial of summary
judgment.” Id. at 1154 (quoting 11 Moore’s Federal
Practice, § 56.40[1][c] (Matthew Bender 3d Ed. 2015)).
Only evidence for which the content and substance are
admissible may be considered when ruling on a
motion for summary judgment. Johnson v. Weld Cty.,
Colo., 594 F.3d 1202, 1210 (10th Cir. 2010).
If the movant properly supports a motion for
summary judgment, the non-moving party has the
burden of showing there are issues of material fact to
be determined. Celotex, 477 U.S. at 322. That is, the
opposing party may not rest on the allegations contained
in his complaint but must respond with specific facts
showing a genuine factual issue for trial. Fed. R. Civ.
P. 56(e); Scott v. Harris, 550 U.S. 372, 380 (2007) (“The
mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement
is that there be no genuine issue of material fact.”); see
also Hysten v. Burlington N. & Santa Fe Ry., 296 F.3d
1177, 1180 (10th Cir. 2002). These specific facts may
be shown “by any of the kinds of evidentiary materials
listed in Rule 56(c), except the mere pleadings themselves.’” Pietrowski v. Town of Dibble, 134 F.3d 1006,
1008 (10th Cir. 1998) (quoting Celotex, 477 U.S. at
324); see Mountain Highlands, LLC v. Hendricks, 616
F.3d 1167, 1170 (10th Cir. 2010) (“On those issues for
which it bears the burden of proof at trial, the nonmovant “must go beyond the pleadings and designate
App.59a
specific facts so as to make a showing sufficient to
establish the existence of an element essential to [its]
case in order to survive summary judgment.”) (quoting
Cardoso v. Calbone, 490 F.3d 1194, 1197 (10th Cir.
2007)). “The court views the record and draws all
inferences in the light most favorable to the nonmoving party.” Pepsi-Cola Bottling Co. of Pittsburg, Inc.
v. PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005).
STATEMENT OF
UNDISPUTED MATERIAL FACTS
On the surface, the parties’ briefings would seem
to indicate that this case is rife with genuine issues of
material fact. However, the evidence removes reasonable
disputes as to the material facts. In particular, the
video evidence of each of the three stops is particularly
insightful into what happened on the night in question.
When the video evidence contradicts the parties’ versions of events, the Court adheres as closely as possible
to the video evidence. See Carabajal v. City of Cheyenne,
Wy., 847 F.3d 1203, 1207 (10th Cir. 2017) (“[W]e cannot
ignore clear, contrary video evidence in the record
depicting the events as they occurred.”). In doing so,
the Court is mindful that all evidence should be
viewed in the light most favorable to Plaintiffs. Id.
With that understanding, the following are the Court’s
findings of material facts that are relevant to the Court’s
analysis and either undisputed or supported by the
record, when viewed in the light most favorable to
Plaintiffs as the non-moving parties.
1. Just before midnight on the evening of June
29, 2017, the Littleton Defendants were on-duty with
the Littleton Police Department when they received a
dispatch report that a white Chevy Malibu had been
App.60a
carjacked by four individuals and that one of the
suspects was armed and had fired a shot at or near
the victim’s head. ECF 144-1, Ex. A at ¶¶ 1-2; ECF
144-2, Ex. B at ¶¶ 1-2; ECF 144-3, Ex. C at ¶¶ 1-2;
ECF 144-4, Ex. D at ¶ 10.
2. The Littleton Defendants, in full police uniform
and each driving a fully marked police SUV, began
responding to the location of the call, which had been
reported at a Dunkin Doughnuts, near the 4700 block
of W. Mineral Avenue, in Littleton. Ex. A at ¶ 3; Ex. B
at ¶ 3; Ex. C at ¶ 3; Ex. D at 1.
3. As the Littleton Defendants proceeded southbound on Santa Fe Drive, they observed the suspect
Malibu driving northbound on Santa Fe, near the
6200 block. Ex. A at ¶ 4; Ex. B at ¶ 4; Ex. C at ¶¶ 4-5.
4. Though unknown to the officers, there were
only three suspects in the vehicle at that time. Ms.
Sanchez was driving, Ms. Lopez was in the front passenger seat, and Mr. Martinez was in the backseat.
ECF 144-5, Ex. E at 190:3-10; ECF 144-6, Ex. F at
114:23-25.
5. After turning around, the Littleton Defendants
began following the Malibu with lights and sirens
activated. The suspects did not yield. Ex. A at ¶¶ 5-7;
Ex. B at ¶¶ 4-6; Ex. C at ¶¶ 6-7; Ex. E at 205:2-9. Mr.
Martinez estimated that the Malibu was driving “at
least” seventy-five miles per hour. ECF 172-6, Ex. Vat
9:43:10-9:43:25 (conventionally submitted material).
Given the totality of these circumstances, the Littleton
Defendants were given authorization by their
commander to initiate a pursuit. Ex. A at ¶¶ 5-7; Ex.
B at ¶¶ 4-6; Ex. C at ¶¶ 6-7; Ex. E at 205:2-9.
App.61a
6. Officer Carns, who was leading the pursuit at
that time, observed that the suspects ran the red light
at Oxford Avenue and narrowly avoided colliding with
a motorcycle. Ex. A at ¶ 8; Ex. B at ¶ 6; Ex. C at ¶ 7;
Ex. E at 205:10-13. Ms. Sanchez testified that she did
not recall almost hitting a motorcycle during the initial
pursuit. ECF 158-1, Ex. K at 206:3-7. The suspects
then ran the red light at Dartmouth Avenue and
began to weave between lanes. Ex. A at ¶ 8; Ex. B at
¶ 6; Ex. C at ¶ 7; Ex. Eat 205:10-13.
7. Ms. Sanchez admits she ran from police to avoid
returning to prison. Ex. E at 201:6-12.
8. Because the suspects were believed to be armed
and given their speeds, erratic maneuvering, and total
disregard for multiple traffic control devices, Officer
Carns requested and was authorized to perform a PIT
maneuver once speeds had decreased. Ex. A at ¶ 8; Ex.
B at ¶ 6; Ex. C at ¶ 8.
9. As they continued north on Santa Fe and
approached Arkansas Avenue, the Malibu appeared to
skid and decelerate. Officer Carns, intending to stop
the vehicle and end the pursuit, performed the PIT
maneuver at this time, causing the Malibu to spin
roughly 170 degrees and come to rest, facing in a
southeast direction on Santa Fe. Ex. A at ¶ 8; Ex. B at
¶ 7; Ex. C at ¶ 8. These events were captured on video.
ECF 149, Ex. G-1 (conventionally submitted material);
ECF 149, Ex. G-2 (conventionally submitted material).
10. To prevent the suspects from escaping, Officers
Carns and Guzman positioned their vehicles to the
southwest and south of the Malibu (respectively),
while Officer McGrath positioned his vehicle immediately to the north. The Littleton Defendants exited
App.62a
their vehicles with guns drawn and began shouting
commands for the suspects to surrender. Given the
time of night, they could not see into the Malibu’s
passenger compartment. Ex. A at ¶¶ 9-11; Ex. B at
¶ 8; Ex. C at ¶¶ 9-10; Ex. G-1; Ex. G-2; ECF 158-2, Ex.
L at 120:1-13; ECF 158-3, Ex. Mat 38:12-20, 61:4-7;
ECF 158-4, Ex. N at 30:24-31:17.
11. The Malibu came to a complete stop after the
PIT maneuver in the intersection of Santa Fe and
East Arkansas. Ex. G-1; Ex. L at 118:3-14; Ex. N at
28:16-20; Ex. M at 35:5-18, 37:18-25. Ms. Sanchez
placed the car in park, Ex. K at 204:10-22, 208:6-21,
and all three Plaintiffs put their hands up in the air.
Ex. L at 120:8-19, 121:15-17, 122:10-23, 123:1-13; Ex.
K at 209:8-210:7.
12. Officer Guzman was the first person to fire
on the vehicle. Ex. A at ¶ 31; Ex. E at 210:14-211:5;
ECF 172-4, Ex. N-2 at 35:6-12. Officer Guzman fired
in fear for his life. Ex. A at ¶ 13. Officer Guzman did
not fire until the vehicle started moving. Ex. G-1; Ex.
G-2. At that point, Officer McGrath, who was then
facing the Malibu’s driver-side door, also opened fire.
Ex. C at ¶ 12.
13. Ms. Sanchez was shot twice (once in the leg
and once in the chest) and Ms. Lopez was not hit. Ex.
E at 210:23-211:5, 215:1-216:1, 217:17-22. Mr. Martinez
alleges he does not know whether he was hit, though
he previously told investigators he had not been shot
during the entirety of these events. Ex. F at 131:5-22;
Ex. V at 9:53:50-9:54:00. Based on the video evidence,
Officer Guzman was not in a position to shoot Ms.
Sanchez in the leg until after it started driving away
from the scene. Ex. G-1; Ex. G-2.
App.63a
14. Instead of stopping, the Malibu fled eastbound
on Arkansas Avenue. The Littleton Defendants returned
to their vehicles and continued the pursuit, with
Officer Guzman as the lead vehicle. Ex. A at ¶ 16; Ex.
B at ¶¶ 9-10; Ex. C at ¶ 14; Ex. G-1; Ex. G-2.
15. Plaintiffs turned northbound onto Cherokee
Street and proceeded toward Arizona Avenue. They
then turned left and began heading north on Cherokee
Street, then east on Louisiana Avenue, and eventually
north on Bannock Street, before making a U-turn on
Bannock and driving back toward Louisiana Avenue.
Ex. A at ¶¶ 16-17; Ex. B at ¶ 10; Ex. C at ¶ 14.
16. Though unknown to officers at the time, Mr.
Martinez jumped from the moving vehicle during this
portion of the pursuit and had no further involvement
with these events. Ex. E at 220:1-7; Ex. F at 130:2-7,
131:10-14.
17. Officer Guzman executed a PIT maneuver on
Bannock Street, between Arizona and Louisiana Avenue.
Officers Carns and McGrath attempted to trap the
suspects by positioning their vehicles immediately to
the north and south of the Malibu, respectively. Ex. A
at ¶¶ 17-18; Ex. B at ¶ 10; Ex. C at ¶ 15. These events
were captured on video. ECF 149, Ex. H (conventionally
submitted material).
18. Officers Carns and Guzman exited their
vehicles. Officer Carns made direct eye contact with
the suspect in the passenger seat and began yelling
commands for her to show her hands. Ex. A at ¶¶ 1820; Ex. B at ¶ 11; Ex. C at ¶ 15; Ex. H. Ms. Sanchez
did not hear officers give any commands. Ex. K at
228:14-16. Ms. Lopez immediately began to look and
reach toward the vehicle’s floorboard. Officer Carns
App.64a
concluded she was reaching for a gun and took cover
behind Officer Guzman’s patrol vehicle. Officer Carns
could not see Officer Guzman from this location. Ex.
A at ¶¶ 18-20; Ex. B at ¶ 11; Ex. C at ¶ 15; Ex. H.
However, Officer Carns never saw a weapon at the
second stop or at any time during the pursuit. ECF
158-5, Ex. 0 at 130:13-19, 145:19-20.
19. The Malibu began to quickly reverse toward
Officer Guzman and ultimately bounced over the curb.
Ex. H. In fear of his life, Officer Guzman fired two
rounds through the rear windshield, toward the
driver’s seat. Ex. A at ¶¶ 19-20; Ex. C at ¶ 15.
20. Because Officer Carns had just observed the
vehicle bounce, he believed the suspects had run over
Officer Guzman. Ex. B at ¶ 11. Officer Carns fired five
rounds through the rear windshield as fast as he
could. Id. at ¶¶ 12-13. One of those rounds struck Ms.
Lopez in the head. Id. at ¶¶ 12, 16; Ex. E at 221:22222:4, 228:4-13. The vehicle then proceeded southbound
on Bannock Street, toward Louisiana Avenue, hitting
a parked car in the process. Ex. H. The officers resumed
the pursuit. Ex. A at ¶ 20; Ex. B at ¶ 13.
21. As Ms. Sanchez drove south on Bannock St.,
the Malibu lost traction and spun approximately 45
degrees to the right. ECF 149, Ex. I-1 (conventionally
submitted material). The Malibu came to a complete
stop on the right side of Bannock St. Id. Within
moments of stopping, the Malibu’s break lights
disengaged, and the vehicle began to drive forward.
Id. Roughly two seconds later, Officer Guzman rammed
the Malibu in an attempt to disable it and end the
pursuit. Id.; Ex. A at ¶¶ 22-23; Ex. C at ¶ 16.
App.65a
22. Officers Guzman and McGrath exited their
vehicles and began issuing commands for the suspects
to surrender. As this was occurring, Officer Martinez
of the Englewood Police Department arrived and took
up a position south of the Malibu near Louisiana
Avenue. Ex. A at ¶¶ 23-24; Ex. C at ¶¶ 16-17; Ex. I-1;
ECF 149, Ex. 1-2 (conventionally submitted material).
23. Officer Martinez exited his vehicle after he
saw the collision between the Malibu and Officer
Guzman’s vehicle, and he ran to take cover near the
building at the northeast corner of the intersection.
ECF 146-1, Martinez Ex. A at 47:17-22, 48:9-14; ECF
148, Martinez Ex. C (conventionally submitted material).
24. While Officer Martinez was taking cover, the
Malibu was idling in the middle of Bannock Street.
Martinez Ex. A at 49:10-15; Martinez Ex. C.
25. From his position beside the building at the
northwest corner of the intersection, Officer Martinez
could not see inside the building. Martinez Ex. A at
49:16-18, 55:5-10. He did not fire at the Malibu while
he was beside the building. Id. at 51:10-15.
26. Officer Martinez remained beside the building
for a few seconds and then decided to move from his
position to an area behind a van that was on the east
side of Bannock Street and out of the line of fire of the
Littleton Defendants who had positioned themselves
to the north of the Malibu. Martinez Ex. A 50:2-24;
Martinez Ex. C; Ex. I-1.
27. Officer Martinez began to quickly walk along
the south edge of the small parking lot in front of the
building he had used for cover. Martinez Ex. A at
53:17-20; Martinez Ex. C; Ex. I-1.
App.66a
28. He could not see inside the Malibu as he
began to move to the east, nor could he tell whether
there were any passengers inside the car. Martinez
Ex. A at 54:11-13, 54:23-25, 55:5-10, 83:24-84:6.
29. At that point, and approximately seventeen
seconds after being rammed, the Malibu began to
move forward and then turn toward the direction of
Officer Martinez. Ex. 1-2; Ex. A at ¶¶ 24-28; Ex. C at
¶¶ 16-17; Martinez Ex. A 56:19-23, 21:10-20.
30. In fear of Officer Martinez’s life, and for fear
of the safety of the public, Officer Guzman fired eleven
rounds through the Malibu’s rear windshield. Ex. A at
¶ 25; Ex. I-2.
31. Because the Malibu driving in his direction
“freaked [him] out” and caused him to perceive that
he was in “a life and death situation,” Officer Martinez
fired five rounds at the driver’s side. Martinez Ex. A
at 56:21-3, 57:11-14, 110:20-21, 110:24-11:2, 122:1013.
32. The Malibu ultimately did not travel much
further, and it stopped at the southern edge of the
parking lot. Martinez Ex. A at 73:2-9.
33. Officer Martinez commanded Ms. Sanchez to
put her hands up and when she complied, Officer
Martinez called out four or five times to the other
officer to stop firing. Id. at 79:14-24, 80:5-10.
34. Officer Guzman did not hear those commands.
Ex. A at ¶ 26. Officer Martinez testified that Officer
Guzman continued to fire his weapon after the Malibu
had stopped. ECF 158-6, Ex. P at 79:25-80:4, 82:13-25,
103:13-24. Officer Guzman declares that he stopped
App.67a
firing his weapon once the Malibu stopped. Ex. A at
¶ 26.
35. Officers Carns and McGrath did not discharge
their firearms at this location. Ex. B at ¶¶ 14-15; Ex.
C at ¶¶ 16-17.
36. In total, the pursuit covered more than six
miles and spanned three jurisdictions, including Littleton, Englewood, and Denver. ECF 144-7, Ex. J.
ANALYSIS
The doctrine of qualified immunity protects from
litigation a public official whose possible violation of a
plaintiff’s civil rights was not clearly a violation at the
time of the official’s actions. See Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). “Qualified immunity balances
two important interests-the need to hold public officials
accountable when they exercise power irresponsibly and
the need to shield officials from harassment, distraction,
and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009).
Because qualified immunity is an immunity from suit,
rather than a mere defense to liability, it is effectively
lost if a case is erroneously permitted to go to trial. Id.
at 231; Ahmad v. Furlong, 435 F.3d 1196, 1198 (10th
Cir. 2006) (“The privilege is an immunity from suit
rather than a mere defense to liability.”).
When a defendant asserts qualified immunity,
the plaintiff has a two-fold burden to overcome the
asserted immunity: (1) “rebut the [defendant’s] noconstitutional-rights arguments” and (2) “demonstrate
that any constitutional violation was grounded in
then-extant clearly established law.” Cox v. Glanz,
800 F.3d 1231, 1245 (10th Cir. 2015) (citing Riggins v.
App.68a
Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009)); see
also Felders v. Malcom, 755 F.3d 870, 877-78 (10th
Cir. 2014) (“[T]he ‘record must clearly demonstrate
the plaintiff has satisfied his heavy two-part burden;
otherwise, the defendants are entitled to qualified
immunity.’” (quoting Medina v. Cram, 252 F.3d 1124,
1128 (10th Cir. 2001))). An official’s conduct violates
clearly established law when, at the time of the
challenged conduct, “[t]he contours of [a] right [are]
sufficiently clear” that every “reasonable official would
have understood that what he is doing violates that
right.” Ashcroft v. al-Kidd, 563 U.S. 731,741 (2011).
To satisfy the clearly established prong of the test, the
Tenth Circuit requires that “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.”
Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010).
Traditionally, there has been a deliberate, twostep process for resolving qualified immunity questions:
“First, a court must decide whether the facts that a
plaintiff has alleged . . . make out a violation of a
constitutional right. . . . Second, if the plaintiff has
satisfied this first step, the court must decide whether
the right at issue was clearly established at the time
of the defendant’s alleged misconduct.” Pearson, 555
U.S. at 232 (quoting Saucier v. Katz, 533 U.S. 194 (2001)
(internal citations and quotation marks removed)).
However, the Supreme Court has afforded courts the
discretion to decide “which of the two prongs of the
qualified immunity analysis should be addressed first
in light of the circumstances in the particular case at
hand.” Id. at 236; see also Christensen v. Park City
Mun. Corp., 554 F.3d 1271, 1277 (10th Cir. 2009).
App.69a
Here, the Court begins by examining whether the law
was clearly established. In doing so, the court will
review the actions of the officers at each of the three
stops during the car chase.
I.
First Stop
The Littleton Defendants received a dispatch
report that a white Chevy Malibu had been carjacked
by four individuals, with one suspect armed and who
had already fired a shot at or near the victim’s head.
Ex. A at ¶¶ 1-2; Ex. B at ¶¶ 1-2; Ex. C at ¶¶ 1-2; Ex.
D at ¶ 10. As the Littleton Defendants proceeded
southbound on Santa Fe Drive, they observed the
suspect Malibu driving northbound on Santa Fe, near
the 6200 block. Ex. A at ¶ 4; Ex. B at ¶ 4; Ex. C at
¶¶ 4-5. After turning around, the Littleton Defendants
began following the Malibu with lights and sirens
activated. The suspects did not yield. Ex. A at ¶¶ 5-7;
Ex. B at ¶¶ 4-6; Ex. C at ¶¶ 6-7; Ex. E at 205:2-9. A
reasonable jury could conclude that the Malibu was
travelling in excess of seventy-five miles per hour. Ex.
O at 80:13-81:9; Ex. V at 9:43:10-9:43:25. As they
continued north on Santa Fe and approached Arkansas
Avenue, the Malibu appeared to skid and decelerate.
Officer Carns, intending to stop the vehicle and end
the pursuit, performed a PIT maneuver at this time,
causing the Malibu to spin roughly 170 degrees and
come to rest, facing in a southeast direction on Santa
Fe. Ex. A at ¶ 8; Ex. B at ¶ 7; Ex. Cat ¶ 8.
Officers Carns and Guzman positioned their
vehicles to the southwest and south of the Malibu
(respectively), while Officer McGrath positioned his
vehicle immediately to the north. Given the time of
night, they could not see into the Malibu’s passenger
App.70a
compartment. Defendants exited their vehicles with
guns drawn and began shouting commands for the
suspects to surrender. Ex. A at ¶¶ 9-11; Ex. B at ¶ 8;
Ex. C at ¶¶ 9-10; Ex. G-1; Ex. G-2; Ex. L at 120:1-13;
Ex. Mat 38:12-20, 61:4-7; Ex. N at 30:24-31:17. Plaintiffs
do not deny that the officers shouted commands. ECF
158 at 4, ¶¶ 10-11; Ex. M at 60:21-24. The Malibu
came to a complete stop after the PIT maneuver in the
intersection of Santa Fe and East Arkansas. Ex. G-1;
Ex. L at 118:3-14; Ex. N at 28:16-20; Ex. M at 35:518,37:18-25. Viewing all facts in the light most favorable
to Plaintiffs, Ms. Sanchez placed the car in park, Ex.
K at 204:10-22, 208:6-21, and all three Plaintiffs put
their hands up in the air. Ex. L at 120:8-19, 121:1517, 122:10-23, 123:1-13; Ex. K at 209:8-210:7. Again,
though, it is undisputed that no officer could see
inside the car. ECF 158 at 4, ¶ 11.
Plaintiffs claim that while they had their hands
up, the officers indiscriminately fired into the vehicle.
Ex. L at 120:8-23. That firing, which resulted in Ms.
Sanchez’s leg being hit by a bullet, is what prompted
Plaintiffs to speed off in the car. Id. at 123:14-21; Ex.
K at 210:20-212:24, 218:1-5. However, those contentions
are not supported by the evidence in the record,
including the video of the incident. Carabajal, 847
F.3d at 1207. It is uncontroverted that Officer Guzman
was the first person to fire on the vehicle. Ex. A at
¶ 31; Ex. E at 210:14-211:5; Ex. N-2 at 35:6-12. Based
on the video evidence, Officer Guzman was not in a
position to shoot Ms. Sanchez in the leg until after it
started driving away from the scene. Ex. G-1; Ex. G2. Moreover, Officer Guzman was only standing with
his gun pointed for about a second before the Malibu
started driving away, and it is undisputed that Officer
App.71a
Guzman shouted a command for the occupants to
place their hands in the air and to stop. Ex. M at
60:21-24; Ex. G-1; Ex. G-2. Thus, the record before the
Court demonstrates that, in fear for his life, Ex. A at
¶ 13, Officer Guzman did not fire until the vehicle
started moving. At that point, Officer McGrath, who
was then facing the Malibu’s driver-side door, also
opened fire. Ex. C at ¶ 12. In addition to her leg, Ms.
Sanchez was also shot in her chest. Ex. E at 210:23211:5, 215:1-216:1, 217:17-22.
II. Second Stop
The Malibu fled eastbound on Arkansas Avenue,
and the Littleton Defendants returned to their vehicles
and continued the pursuit. Ex. A at ¶ 16; Ex. B at ¶¶ 910; Ex. C at ¶ 14; Ex. G-1. Plaintiffs turned northbound
onto Cherokee Street and proceeded toward Arizona
Avenue. They then turned left and began heading
north on Cherokee Street, then east on Louisiana
Avenue, and eventually north on Bannock Street,
before making a U-turn on Bannock and driving back
toward Louisiana Avenue. Ex. A at ¶¶ 16-17; Ex. B at
¶ 10; Ex. C at ¶ 14. Mr. Martinez jumped from the
moving car, although this was unknown to officers at
the time. Ex. E at 220:1-7; Ex. F at 130:2-7,131:10-14.
Officer Guzman executed a PIT maneuver on Bannock
Street, between Arizona and Louisiana Avenue. Officers
Carns and McGrath attempted to trap the suspects by
positioning their vehicles immediately to the north
and south of the Malibu, respectively. Ex. A at ¶¶ 1718; Ex. B at ¶ 10; Ex. C at ¶ 15.
Officers Carns and Guzman exited their vehicles.
Officer Carns made direct eye contact with the suspect
in the passenger seat and began yelling commands for
App.72a
her to show her hands. Ex. A at ¶¶ 18-20; Ex. B at
¶ 11; Ex. C at ¶ 15; Ex. H. Ms. Sanchez did not hear
officers give any commands. Ex. K at 228:14-16. Ms.
Lopez immediately began to look and reach toward
the vehicle’s floorboard. Officer Carns concluded she
was reaching for a gun and took cover behind Officer
Guzman’s patrol vehicle. Officer Carns could not see
Officer Guzman from this location. Ex. A at ¶¶ 18-20;
Ex. B at ¶ 11; Ex. C at ¶ 15; Ex. H. However, Officer
Carns never saw a weapon at the second stop or at any
time during the pursuit. Ex. O at 130:13-19, 145:1920.
Plaintiffs again assert that the officers fired on
the vehicle while it was stationary and pinned by the
officers’ vehicles. Ex. K at 223:21-226:2. However, the
video of the incident does not support that assertion.
Ex. H. At the time the Malibu came to rest, it was
pinned against a building and was parallel to Bannock
Street, at approximately 12:04:15. Ex. H. Three seconds
later, at 12:04:18, several muzzle flashes are seen
from Officer Guzman’s gun, as he fired through the
Malibu’s rear windshield. Officer Guzman then quickly
gets out of the way at approximately 12:04:20, and the
Malibu enters the frame less than two seconds later,
as it continues to reverse perpendicular to the street—
right where Officer Guzman had been standing. Id. A
reasonable jury could find only that for the Malibu to
have been pinned horizontally against a house and in
a matter of six seconds to be backing into the street
that the car would have been moving at the time Officer
Guzman fired his gun. Ms. Sanchez even testified that
she did not know if she was completely stopped and
that she “wasn’t driving fast.” Ex. E at 225:11-226:2.
App.73a
In fear for his life, Officer Guzman fired two rounds
through the rear windshield, toward the driver’s seat;
Officer McGrath did not discharge his firearm. Ex. A
at ¶¶ 19-20; Ex. C at ¶ 15; Ex. H. When the Malibu
reversed, it bounced over the curb. Ex. H. Because he
could not see Officer Guzman, Officer Carns believed
that the vehicle had run over Officer Guzman. Ex. B
at ¶ 11-13. Officer Carns then fired his weapon through
the rear windshield. Ex. B at ¶¶ 11-13. One of the
shots struck Ms. Lopez in the head. Ex. B at ¶¶ 12, 16;
Ex. E at 221:22-222:4, 228:4-13. Officer Carns claims
to have fired the weapon due to “the reverse lights
coming right at [him] very fast,” Ex. B at ¶ 12, yet the
video does not show that Officer Carns was ever in the
path of the reversing Malibu. Ex. H. The Malibu then
proceeded southbound on Bannock Street, toward
Louisiana Avenue, hitting a parked car in the process.
Ex. A at ¶ 20; Ex. B at ¶ 13; Ex. H.
III. Third Stop
While traveling southbound on Bannock Street,
the Malibu started to skid and then momentarily
came to a stop on Bannock, perpendicular to the lanes
of travel. Ex. A at ¶¶ 22-23; Ex. C at ¶ 16; Ex. I-1; Ex.
1-2. At approximately 12:04:33, the Malibu begins to
skid and then comes to a temporary stop at 12:04:36.
Ex. I-1; Ex. 1-2. At 12:04:38, the Malibu’s break lights
disengaged, and the vehicle began to drive forward.
Ex. I-1; Ex. 1-2. Two seconds later, at 12:04:40, Officer
Guzman rammed the vehicle attempting to end the
chase. Ex. I-1; Ex. 1-2; Ex. A at ¶ 22. The Malibu break
lights only reengaged moments before being rammed.
Ex. I-1; Ex. I-2. Officers Guzman and McGrath exited
their vehicles and began issuing commands for the
suspects to surrender. As this was occurring, Officer
App.74a
Martinez arrived and took up a position south of the
Malibu, near Louisiana Avenue. Officer Martinez was
off to the side of the Malibu, as it remained facing
west. Ex. A at ¶¶ 23-24; Ex. C at ¶¶ 16-17; Ex. I-1; Ex.
I-2.
After Officer Guzman rammed the Malibu, he
positioned himself by the right rear side of his squad
car. Ex. I-1. Ms. Sanchez testified that her foot was
“stuck,” and she attempted to keep her hands in the
air. Ex. K at 235:1-4. Officer Martinez ran to take
cover near the building at the northeast corner of the
intersection. Martinez Ex. A at 47:17-22, 48:9-14; Ex.
I-2. From that position, Officer Martinez could not see
inside the Malibu. Martinez Ex. A at 49:16-18, 55:510. Officer Martinez remained beside the building for
a few seconds and then decided to move from this
position to an area behind a van that was on the east
side of Bannock St. and out of the line of fire of the
Littleton Officers. Martinez Ex. A at 50:2-24. He then
quickly walked along the south edge of the small
parking lot in front of the building he had used for
cover. Id. at 53:17-20. At that point, and approximately
seventeen seconds after being rammed, the Malibu
began to move forward and then turn toward the
direction of Officer Martinez. Ex. I-2; Ex. A at ¶¶ 2428; Ex. C at ¶¶ 16-17. Plaintiffs characterize this movement as rolling at an “idle-ish” speed, citing Officer
McGrath’s deposition, Ex. N at 71:18-72:16, but it is
undisputed that the car moved forward.
In fear of Officer Martinez’s life, and for fear of
the safety of the public, Officer Guzman fired eleven
rounds through the Malibu’s rear windshield. Ex. A at
¶ 25; Ex. I-2. Because the Malibu driving in his direction
“freaked [him] out” and caused him to perceive that
App.75a
he was in “a life and death situation,” Officer Martinez
fired five rounds at the driver’s side. Martinez Ex. A
at 56:21-3, 57:11-14, 110:20-21, 110:24-11:2, 122:1013. The Malibu ultimately did not travel much further,
and it stopped at the southern edge of the parking lot.
Martinez Ex. A at 73:2-9. Officer Martinez commanded
Ms. Sanchez to put her hands up and when she
complied, Officer Martinez called out four or five times
to the other officer to stop firing. Id. at 79:14-24, 80:510. Officer Guzman did not hear those commands. Ex.
A at ¶ 26. Officer Martinez testified that Officer
Guzman continued to fire his weapon after the Malibu
had stopped, Ex. P at 79:25-80:4, 82:13-25, 103:13-24,
but Officer Guzman maintains that he stopped firing
his weapon once the Malibu stopped, Ex. A at ¶ 26.
IV. Clearly Established Law
The Tenth Circuit has unambiguously emphasized
that it is a plaintiff’s obligation to cite to cases that
satisfy the burden of demonstrating the asserted law
is clearly established. Thomas v. Durastanti, 607 F.3d
655, 669 (10th Cir. 2010) (“The plaintiff bears the burden
of citing to us what he thinks constitutes clearly
established law.”); see also Gutierrez v. Cobos, 841
F.3d 895, 903 (10th Cir. 2016) (“Plaintiffs failed to
carry their burden of showing that [the defendants]
violated clearly established federal law because their
counsel did not make any legal argument in the
district court to rebut qualified immunity.”); Rojas v.
Anderson, 727 F.3d 1000, 1004 (10th Cir. 2013) (finding
that, although the plaintiff “might well have been able
to satisfy us that Defendants’ actions violated his
clearly established rights,” the plaintiff “through his
counsel, [has simply] failed to carry the burden
assigned to him by law.”); Smith v. McCord, 707 F.3d
App.76a
1161, 1162 (10th Cir. 2013) (“[The plaintiff], through
his counsel, failed to carry the burden assigned him
by law.”). “[E]xisting precedent must have placed the
statutory or constitutional question beyond debate.”
Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir. 2016).
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 support the position. Doe v. Woodard, 912
F.3d 1278, 1289 (10th Cir. 2019), cert. denied sub nom.,
I.B. v. Woodard, —U.S. —, 139 S. Ct. 2616 (2019);
Quinn, 780 F.3d at 1005.
“The question is not whether there is a prior case
with precisely the same facts, but ‘whether the law
put officials on fair notice that the described conduct
was unconstitutional.’” Mayfield v. Bethards, 826 F.3d
1252, 1258 (10th Cir. 2016) (citation omitted). The
Tenth Circuit has “cautioned that defining a right too
narrowly risks making recovery against a public
official virtually impossible because only ‘those rare
cases in which a precedential case existed which was
`on all fours’ factually with the case at bar’ would
abrogate qualified immunity.” Id. (citation omitted).
On the other hand, the Supreme Court has “repeatedly
told courts not to define clearly established law at a
high level of generality since doing so avoids the
crucial question whether the official acted reasonably
in the particular circumstances that he or she faced.”
Est. of B.I. C. v. Gillen, 761 F.3d 1099, 1106 (10th Cir.
2014) (quoting Plumhoff v. Rickard, 572 U.S. 765, 779
(2014)). “[S]pecificity is especially important in the
Fourth Amendment context, where . . . it is sometimes
difficult for an [official] to determine how the relevant
legal doctrine . . . will apply to the factual situation
App.77a
the [official] confronts.” Rivas-Villegas v. Cortesluna,
142 S. Ct. 4, 8 (2021) (quoting Mullenix v. Luna, 577
U.S. 7, 12 (2015)). Absent a showing of an analogous
circumstance, the Supreme Court has stated that only
in a “rare obvious case” will an officer’s unlawful actions
be sufficiently clear to overcome qualified immunity.
City of Escondido, v. Emmons, — U.S. —, 139 S. Ct.
500, 504 (2019). “Put simply, qualified immunity
protects ‘all but the plainly incompetent or those who
knowingly violate the law.’” Mullenix, 577 U.S. at 12
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
To meet their burden of pointing to clearly
established law, Plaintiffs argue that the Court need
not looker further than Graham v. Connor, 490 U.S.
386 (1989) and Tennessee v. Garner, 471 U.S. 1 (1985).
In doing so, they draw the Court’s attention to the
“sliding scale” of the Tenth Circuit. ECF 158 at 23;
ECF 157 at 17. In this context, “‘[t]he more obviously
egregious the conduct in light of prevailing constitutional
principles, the less specificity is required from prior
case law to clearly establish the violation.’” Casey v.
City of Federal Heights, 509 F.3d 1278, 1284 (10th Cir.
2007) (quoting Pierce v. Gilchrist, 359 F.3d 1279, 1298
(10th Cir. 2004)). “Thus, when an officer’s violation of
the Fourth Amendment is particularly clear from
Graham itself, we do not require a second decision
with greater specificity to clearly establish the law.”
Id. But the Supreme Court has limited the application
of such an approach: “The general rules set forth in
Garner and Graham do not by themselves create
clearly established law outside an obvious case.”
Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (cleaned
up). If Plaintiffs are relying on Graham and Garner,
App.78a
then the question becomes whether this case is the
“obvious” case.
“[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.” Pauly v. White, 874
F.3d 1197, 1214-15 (10th Cir. 2017) (quoting Graham,
490 U.S. at 395). This reasonableness standard is an
objective one, “judged from the perspective of a reasonable officer on the scene, rather than with 20/20 vision
of hindsight.” Graham, 490 U.S. at 396. “In determining
the reasonableness of the manner in which a seizure
is effected, ‘[w]e 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.’” Scott v.
Harris, 550 U.S. 372, 383 (2007) (quoting United States
v. Place, 462 U.S. 696, 703 (1983)). “This balancing test
‘requires careful attention to the facts and circumstances of each particular case, including 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.’” Pauly, 874 F.3d
at 1215 (quoting Graham, 490 U.S. at 396) (emphasis
in original).
A review of Casey, the case cited by Plaintiffs for
their reliance on Graham and Garner, quickly reveals
why Plaintiffs’ case is not the obvious case. In that
case, Mr. Casey went to court to challenge a traffic
ticket. 509 F.3d at 1279. He was given his case file to
take to the cashier’s window to pay for the ticket. Id.
His wallet was in his truck, though, so he left the
App.79a
building holding his file. Id. at 1279-80. Under Colorado
law, that amounted to a possible misdemeanor. Id. at
1280. An officer learned of this from the court clerk
and then left the courthouse to follow Mr. Casey. Id.
When the officer found Mr. Casey returning from his
truck, he ordered Mr. Casey to return to the truck and
hand over the file. Id. When Mr. Casey did not, the
officer put Mr. Casey’s arm in an arm-lock and jumped
on his back. Id. As the two struggled, another officer
arrived on scene and almost immediately fired her
Taser at Mr. Casey. Id. Shortly thereafter, additional
officers arrived on the scene and brought Mr. Casey to
the ground where they repeatedly banged his face into
the concrete. Id. A different officer also Tasered Mr.
Casey while he was on the ground. Id. The Tenth
Circuit found these facts to constitute the obvious case
in which Graham suffices for clearly established law
since “Graham establishes that force is least justified
against nonviolent misdemeanants who do not flee or
actively resist arrest.” Id. at 1285.
Here, the crime at issue was far more severe than
simply leaving a courthouse building with a file. It is
undisputed that Plaintiffs were suspected of the
felony of auto theft. Colo. Rev. Stat. § 18-4-409; see
also Shortridge v. Brownlow, No. 17-cv-02770-MSKSTV, 2020 WL 2322610, at *7 (D. Colo. May 8, 2020)
(finding the first Graham factor weighed in favor of
the officers because the crime at issue was felony auto
theft). Additionally, unlike Mr. Casey, Plaintiffs actively
fled from the police on multiple instances. They did
not yield when the officers first started following the
Malibu; Plaintiffs sped off from the scene of the first
stop after the use of a PIT maneuver; Ms. Sanchez
quickly reversed and angled the car to escape from the
App.80a
second stop despite having police vehicles on all sides
of the Malibu; and the video shows the car moving and
making a turn as if to attempt escape again at the
third stop even after the Malibu was rammed. Finally,
while Mr. Casey did not pose an immediate threat to
the safety of officers or others, Plaintiffs certainly did.
Ms. Sanchez drove the Malibu at high rates of speed
in order to evade capture. When capture was imminent
at each of the stops, she often drove the car in or near
the direction of the officers. The Tenth Circuit has
said that even a slow-moving car can endanger officer
safety. Thomas, 607 F.3d at 670-71; see also Carabajal,
847 F.3d at 1209-10. Moreover, all of this occurred also
in the context of the officers reporting to a carjacking
with one suspect purportedly armed. Considering the
totality of the circumstances and all three Graham
factors, the justification that allowed the Tenth Circuit
to find Casey to be an obvious case—namely, that Mr.
Casey was a nonviolent misdemeanant who did not
flee—is wholly inapplicable in this case.
Although this case in general does not pose an
obvious violation of Graham, there are two moments
that warrant special consideration. First, Officer Carns
fired at the Malibu during the second stop even
though he was not directly in its path. Although he
may not have been in direct danger, it is undisputed
that he believed the Malibu had just run over Officer
Guzman when it rolled over the curb. It would thus
not be objectively unreasonable for Officer Carns to
attempt to save his fellow officer’s life. See Carr v.
Tatangelo, 338 F.3d 1259,1269 (11th Cir. 2003) (finding
an officer “acted in an objectively reasonable manner
to the apparent imminent threat to his fellow officer
to save his life”). Second, viewing the facts in the light
App.81a
most favorable to Plaintiffs, Officer Guzman shot the
Malibu at the third stop after it had stopped moving
and the passengers had put their hands up at the
command of Officer Martinez. But Officer Guzman did
not hear Officer Martinez’s commands, and there is no
evidence that Officer Guzman saw the Malibu’s passengers surrender. Given the two prior stops (and the
vehicle’s movements just moments before), it was also
reasonable for Officer Guzman to expect another
attempt at flight. See Kisela, 138 S. Ct. at 1152 (“And
‘[t]he calculus of reasonableness must embody allowance
for the fact 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.”) (quoting Graham, 490 U.S. at 396-87)). At
best, Officer Guzman’s conduct falls in the “hazy border
between excessive and acceptable force.” Mullenix, 577
U.S. at 18 (cleaned up). Qualified immunity protects
such conduct. Id.
If Graham is not enough for clearly established
law, Plaintiffs point to two other cases: Valdez v.
Macdonald, No. 15-cv-00109-RPM, 2019 WL 1651857
(D. Colo. Apr. 17, 2019) and Estate of Ceballos v. Husk,
919 F.3d 1204 (10th Cir. 2019). A quick glance at the
years in which these cases were decided suggests that
these cases did not define clearly established law at
the time of the incidents in this case in 2017. Kisela,
138 S. Ct. at 1154 (rejecting reliance on a case “because
a reasonable officer is not required to foresee judicial
decisions that do not yet exist in instances where the
requirements of the Fourth Amendment are far from
obvious”). Plaintiffs acknowledge as much, arguing
that “[w]hile these decisions occurred after [this
App.82a
case’s] use of force, the reasoning from these cases
identify established law that predates June 29, 2017,
that would have placed all these Defendant officers on
notice that their conduct was a violation of clearly
established constitutional rights.” ECF 158 at 24;
ECF 157 at 19. More specifically, Plaintiffs focus on
both Valdez and Husk’s reliance on Allen v. Muskogee,
119 F.3d 837 (10th Cir. 1997).
In Allen, Mr. Allen left his home with guns and
ammunition to go to his sister’s house after an
altercation with his wife and children. Id. at 839. The
altercation was reported to the authorities, and the
police department held a squad meeting at which this
information was disseminated. Id. Sometime later, a
911 call was made from the sister’s house indicating
that Mr. Allen was threatening suicide. Id. An officer
went to the house where he saw Mr. Allen sitting in
the driver’s seat of a vehicle with a gun in his right
hand. Id. The officer repeatedly told Mr. Allen to drop
the gun. Id. Two other officers arrived on scene, after
which the original officer reached into the vehicle to
seize the gun while a second officer held Mr. Allen’s
left arm. Id. The third officer attempted to open the
passenger side door. Id. In response, Mr. Allen pointed
the gun toward the officer at the passenger door, who
ducked and moved behind the vehicle. Id. Mr. Allen
then swung the gun toward the other officers, at
which point gunfire was exchanged, resulting in Mr.
Allen’s death. Id. The entire encounter lasted approximately ninety seconds. Id. The Tenth Circuit found
that there were genuine issues of material fact which
prevented the entry of summary judgment in favor of
the officers. Id. at 840.
App.83a
As an initial matter, it is important to note that
there is no indication that the decision in Allen was in
the context of a qualified immunity defense. Medina
v. Cram, 252 F.3d 1124, 1132 (10th Cir. 2001). “[T]he
defendants’ summary judgment motion was, therefore,
judged under the typical summary judgment standard,
which requires a lesser showing by the plaintiff.” Id.
Assuming that it does provide some precedential
value in the qualified immunity analysis, the facts of
Allen are too materially different to create clearly
established law. At a base level, Allen does not concern
chasing a vehicle at high speeds. In fact, Mr. Allen
never even attempted to flee from the police. The entire
encounter occurred in one location within a short-time
span; in contrast, the Plaintiffs in this case caused the
officers to confront rapidly evolving scenarios in multiple
places, all while being in control of a vehicle which
could cause harm to the officers or others. Because of
these material differences, a reasonable officer would
not understand Allen to govern his or her conduct in
this case.
For clearly established law, the Court is not
looking for precedent with the exact facts at issue in
this case. Mullenix, 577 U.S. at 12 (“We do not require
a case directly on point. . . . ”). But make no mistake,
the inquiry into clearly established law in the Fourth
Amendment context is an extremely fact-intensive
one. City of Tahlequah, Okla. v. Bond, 142 S. Ct. 9, 12
(2021) (“But the facts of Allen are dramatically different
from the facts here.”); Kisela, 138 S. Ct. at 1153-54
(comparing the facts of cases relied on by the Ninth
Circuit and finding material differences); Brosseau v.
Haugen, 543 U.S. 194, 200 (2004) (describing the
relevant inquiry as “whether to shoot a disturbed felon,
App.84a
set on avoiding capture through vehicular flight, when
persons in the immediate area are at risk from that
flight”); Carabajal, 847 F.3d at 1211 (“Such cases,
however, are too factually distinct to speak clearly to
the situation [the officer] confronted.”). For that reason,
and as explained below, Plaintiffs’ failure to cite
binding authority from a car chase case is fatal to
their opposition of qualified immunity. True, Valdez is
such a case, but it is a decision reached after the conduct
at issue in this case, and it is a single, unpublished
district court opinion that cannot demonstrate clearly
established law. Cummings v. Dean, 913 F.3d 1227,
1244 (10th Cir. 2019) (noting that “even assuming
that [a single, unpublished district court opinion] is
entitled to any consideration at all in the clearlyestablished-law analysis, that consideration would be
minimal”). Moreover, that case fails to cite Mullenix,
an important precedent discussed below, which calls
into question its usefulness as persuasive authority.
In sum, none of the cases cited by Plaintiff
demonstrate the existence of clearly established law
that squarely governs the specific facts and
particularized conduct at issue in this case. On that
basis alone, Plaintiffs have failed to meet their burden,
and Defendants are entitled to qualified immunity.
However, the Court would be remiss if it did not
address caselaw conspicuously absent from Plaintiffs’
briefing. In particular, the Supreme Court’s ruling in
Mullenix v. Luna best demonstrates why the law was
not clearly established in this case. In Mullenix, a
driver of a car fled after being stopped by an officer.
577 U.S. at 8. That officer, later joined by another,
chased the driver for roughly eighteen minutes at
speeds between 85 and 110 miles per hour. Id. While
App.85a
being chased, the driver called dispatch to threaten
the officers with a gun he claimed he had. Id. As the
chase ensued, other officers set up tire spikes at
various locations. Id. Trooper Mullenix responded to
the situation, intending to set up a spike strip near
an overpass. Id. at 9. But when he learned of the other
spike strip positions, Trooper Mullenix pondered
whether shooting at the vehicle would better disable
it. Id. He asked the dispatcher to inform his supervisor
if this would be permissible, but before he received a
response, he took a shooting position on the overpass.
Id. Roughly three minutes later, Trooper Mullenix
saw the vehicle approach, and he fired six shots. Id.
Four of those shots hit and killed the driver. Id.
In litigation, the district court denied, Trooper
Mullenix’s motion for summary judgment on the basis
that there were genuine issues of fact as to whether
he acted reasonably. Id. at 10. The Fifth Circuit
affirmed, noting that clearly established rule violated
was that an officer may not use “deadly force against
a fleeing felon who does not pose a sufficient threat of
harm to the officer or others.” Id. at 12 (cleaned up).
The Supreme Court reversed because it “has previously
considered—and rejected—almost that exact formulation of the qualified immunity question in the Fourth
Amendment context.” Id. Instead, “[t]he relevant inquiry
is whether existing precedent placed the conclusion
that Mullenix acted unreasonably” when he “confronted
a reportedly intoxicated fugitive, set on avoiding
capture through high-speed vehicular flight, who twice
during his flight had threatened to shoot police
officers, and who was moments away from encountering
an officer at Cemetery Road.” Id. at 13-14. The Supreme
Court answered in the negative, conclusively stating
App.86a
that it “has thus far never found the use of deadly
force in connection with a dangerous car chase to
violate the Fourth Amendment, let alone to be a basis
for denying qualified immunity.” Id. at 15 (citing Scott
v. Harris, 550 U.S. 372 (2007) and Plumhoff v.
Rickard, 572 U.S. 765 (2014)).
The analysis in Mullenix leaves little doubt that
the appropriate inquiry to determine clearly established
law hinges on the facts and conduct at issue. The
Supreme Court specifically seems to distinguish dangerous car chase cases from other Fourth Amendment
contexts. Moreover, the pronouncement that in those
types of cases the Supreme Court has yet to find a
violation of the Fourth Amendment weighs heavily
against the notion that the law would be clearly
established that Defendants in this case violated
Plaintiffs’ Fourth Amendment rights.1
CONCLUSION
During the late hours of July 29, 2017, a tragic
(and avoidable) series of events led to the death of Ms.
Lopez and the injuries sustained by Ms. Sanchez and
Mr. Martinez. By choosing to flee, Plaintiffs endangered
the lives of themselves, the responding officers, and
the public. To mitigate that danger, the Littleton
Defendants and Officer Martinez decided to use
deadly force. The question is whether that use of force
constituted a violation of Plaintiffs’ clearly established
1 The Court notes that Plaintiffs only cited to cases concerning
violations of the Fourth Amendment. To the extent, any of
Plaintiffs’ Fourteenth Amendment claims survive in light of
Torres v. Madrid, 141 S. Ct. 989 (2021), they have failed to meet
their burden of pointing to clearly established law for any
violation of the Fourteenth Amendment.
App.87a
rights. Without commenting on whether such actions
were in-fact constitutional violations, Plaintiffs have
failed to meet their burden to point to clearly established
law. On that basis alone, all Defendants should be
entitled to qualified immunity. Accordingly, the Court
respectfully recommends granting both the Littleton
Defendants and Officer Martinez’s motions for summary
judgment [filed February 4, 2022; ECF 144 and 146]
and entering summary judgment in their favor on all
claims.2
Respectfully submitted this 29th day of July,
2022, at Denver, Colorado.
BY THE COURT:
/s/ Michael E. Hegarty
United States Magistrate Judge
2 Be advised that all parties shall have fourteen (14) days after
service hereof to serve and file any written objections in order to
obtain reconsideration by the District Judge to whom this case is
assigned. Fed. R. Civ. P. 72. The party filing objections must
specifically identify those findings or recommendations to which
the objections are being made. The District Court need not
consider frivolous, conclusive, or general objections. A party’s
failure to file such written objections to proposed findings and
recommendations contained in this report may bar the party
from a de novo determination by the District Judge of the
proposed findings and recommendations. United States v. Raddatz,
447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally,
the failure to file written objections to the proposed findings and
recommendations within fourteen (14) days after being served
with a copy may bar the aggrieved party from appealing the
factual findings and legal conclusions of the Magistrate Judge
that are accepted or adopted by the District Court. Duffield v.
Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v.
United States, 950 F.2d 656, 659 (10th Cir. 1991)).
App.88a
ORDER DENYING PETITION FOR
REHEARING EN BANC, U.S. COURT OF
APPEALS FOR THE TENTH CIRCUIT
(JULY 23, 2024)
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
________________________
MARTA SANCHEZ; ET AL.,
Plaintiffs-Appellants,
v.
ANTHONY GUZMAN, individually, ET AL.,
Defendants-Appellees.
________________________
No. 22-1322
(D.C. No. 1:19-CV-01871-RMR-MEH) (D. Colo.)
Before: HOLMES, Chief Judge,
McHUGH, and CARSON, Circuit Judges.
ORDER
Appellants’ petition for rehearing is denied.
The petition for rehearing en banc was transmitted
to all of the judges of the court who are in regular
active service. As no member of the panel and no judge
in regular active service on the court requested that
the court be polled, that petition is also denied.
App.89a
Entered for the Court
/s/ Christopher M. Wolpert
Clerk
App.90a
PETITION FOR EN BANC DETERMINATION,
U.S. COURT OF APPEALS FOR
THE TENTH CIRCUIT
(JULY 11, 2024)
No. 22-1322
Memorandum Opinion issued June 28, 2024
Before: HOLMES, Chief Judge,
McHUGH, and CARSON, Circuit Judges.
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
MARTA SANCHEZ;
THE ESTATE OF STEPHANIE LOPEZ;
DOMINIC MARTINEZ,
Plaintiffs-Appellants,
v.
ANTHONY GUZMAN, LUKE MCGRATH;
JOSEPH CARNS, BRIAN MARTINEZ,
Defendants-Appellees.
On Appeal From The United States
District Court for the District of Colorado
D.C. No. 1:19-cv-01871-RMR-MEH
PETITION FOR EN BANC DETERMINATION
App.91a
BARNES LAW
Robert E. Barnes, Esq.
700 S. Flower Street, Suite 1000
Los Angeles, CA 90017
Telephone: (310) 510-6211
Email: robertbarnes@barneslawllp.com
Attorneys for Appellants
TABLE OF CONTENTS
{ page references from original omitted }
I. INTRODUCTION
II. BACKGROUND
III. REASONS FOR REHEARING EN BANC
A. Conflicts Between the Circuits Abound
B. Panel’s Decision Conflicts with Other Circuits
C. Supreme Court Precedent And Public Policy
Support The Burden of Proof of an
Affirmative Defense of Qualified Immunity on
the Defendant
IV. CONCLUSION
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
{ TOA Omitted }
App.92a
I.
Introduction
This Petition For En Banc Determination
(“Petition”) seeks rehearing en banc pursuant to Federal Rules of Appellate Procedure (“FRAP”) Rule 35,
and the rules of the United States Court of Appeals
for the Tenth Circuit (“10th Cir. R.”) 35, on the
grounds that the subject proceeding involves one or
more questions of exceptional importance: who bears
the burden of proof for the affirmative defense of
qualified immunity in civil rights cases – the plaintiff
or the defendant?
This Circuit’s rules state: “a proceeding presents
a question of exceptional importance if it involves an
issue on which the panel decision conflicts with the
authoritative decisions of other United States Court
of Appeals that have addressed this issue.” 10th Cir.
R. 35(b)(1)(B). As the Panel Opinion acknowledged, it
conflicts with the authoritative decisions of other
United States Court of Appeals that have addressed
the issue. Of particular significance, the Panel
concluded no other panel can consider questioning
this issue, despite the split with other Circuits, as the
Panel interpreted this Circuit’s precedents to be so
binding on the question as to make it “borderline
frivolous” for counsel to raise it, district Courts to
review it, or other panels to question it. Consequently,
the only means for this question of exceptional
importance to be resolved in this Circuit is by en banc
review, and this proceeding presents the issue
precisely for such resolution.
II. Background
This is an appeal of the dismissal of civil rights
claims against police officers who fired 66 shots into a
App.93a
car occupied by three persons at three different stop
locations. One of the occupants was killed, the other
rendered para-paraplegic and the third seriously
injured because he exited the vehicle after the first
stop to flee. On June 28, 2024, a Memorandum Opinion
decision (the “Opinion”) was issued by the Honorable
Jerome A. Holmes, Chief Judge, Caroln B. McHugh
and Joel M. Carson, Circuit Judges (the “Panel”).
The Opinion affirmed an order issued by the United
States District Court for the Central District of
Colorado’s (“District Court’s”), granting a Motion For
Summary Judgment by the Defendants and Appellees
(“Appellees’”) on the sole grounds that qualified
immunity precluded all of Appellants’ claims for violations of their civil rights.
Critical to the proceeding and this Petition, the
Panel concluded the “burden of proof shifts to the
plaintiffs to show that officials are not entitled to qualified immunity.” Opinion at p.13, n.3. The Panel relied
upon past Circuit precedent interpreting a Supreme
Court decision for this burden-shifting approach.
Opinion at p.13, n.3. The Panel acknowledged this
burden-shifting approach conflicted with the
interpretation of other Circuits which interpret
Supreme Court precedent differently, holding that the
“party asserting the affirmative defense of qualified
immunity bears the burden of persuasion on both
prongs at summary judgment.” Opinion at p.13, n.3
(citing Mack v. Yost, 63 F.4th 211, 227 (3rd Cir. 2023).
The Panel found it could not address this Circuit split
without making an opinion that “borders on the
frivolous.” This makes this issue only reviewable by en
banc determination.
App.94a
III. Reasons for Rehearing En Banc
The issue presented here, who bears the burden
of proof for the affirmative defense of qualified
immunity in civil rights cases – the plaintiff or the
defendant?, meets the merits for en banc review: first,
this Circuit now conflicts with other Circuits on this
precise question; second, it is a pure legal issue
interpreting the Supreme Court’s past precedents;
and third, it concerns the relationship of citizen to the
state in the area of civil rights that shapes access to
judicial remedy for those injured by the actions of the
state.
A burden-shifting approach that forces civil
rights plaintiffs to disprove a defendant’s affirmative
defense of qualified immunity imposes a burden that
eviscerates access to jury trials and judicial relief
when state actors violate Constitutional rights of
citizens, as well as impracticably burdens the wrong
party with the burden of proof when the information
necessary to that defense is uniquely within the ken
and knowledge of the defendant.
A. Conflicts Between the Circuits Abound
Of note, this issue triggers conflict and controversy
across the Circuits. As a legal scholar recently
concluded: “among those courts dealing with qualified
immunity, some have spoken generally about the
burden of proof, but few have recognized the widespread
disagreement on the issue and contradictory forces at
play.” Burdens of Proof and Qualified Immunity,
Duvall, Kenneth, Southern Illinois University Law
Journal, Vol. 37 (“Burdens of Proof”), at pg. 137.
App.95a
That is how the Circuits completely disagree on
the Supreme Court’s own precedents on the subject.
While this Circuit claims the Supreme Court resolved
the issue, other Circuits disagree. As fellow scholars
conclude “disarray continues” because the Supreme
Court has actually “never clarified” the issue. Burdens
of Proof, supra, at pg. 143.
Point in fact, it previously “appeared that all of
the Circuits agreed that the defendant had the
burden.” DeVasto v. Faherty, 658 F.2d 859, 865 (1st
Cir. 1981) [“Under [Gomez v. Toledo, 446 U.S. 635, 100
S.Ct. 1920 (1980) (“Gomez”)], the defendant in a civil
rights action has the burden of pleading and proving
good faith.”; Tanner v. Hardy, 764 F.2d 1024, 1027
(4th Cir. 1985) [“It is a well established principle that
qualified immunity, . . . , is a matter on which the
burden of proof is allocated to the defendants (citing
Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727
(1982) (“Harlow”)).”]; Barrett v. Thompson, 649 F.2d
1193, 1201 (5th Cir. 1981) [“Qualified immunity, however, is an affirmative defense; the burden of pleading
and proving it rests with the defendant (citing
Gomez).”; Bauer v. Norris, 713 F.2d 408, 411 fn.6 (8th
Cir. 1983) [“We reject appellant’s contention that he
was entitled to a finding of good faith immunity as a
matter of law. Good faith is an affirmative defense
concerning which the defendant bears the burden of
pleading and proof.”] This Circuit once suggested the
same. McGhee v. Draper, 564 F.2d 902, 913 (10th Cir.
1977) [“We agree that the trial court seems to have
followed the view that the burden was on the plaintiff
to plead a lack of good faith by the board. [] With that
view we must disagree, feeling that the burden of
pleading the qualified immunity defense and of
App.96a
making an affirmative showing that it was applicable
was on the defendants, which they satisfied.”] That
holding in McGhee was later effectively overturned by
this Circuit upon its construction of Supreme Court
precedent in a manner that many other Circuits
interpret contradictory to this Panel’s decision. See:
Opinion, at pg. 13, fn. 3 [“But we have consistently
read the Supreme Court’s decision in Harlow [], as
only placing the burden on government officials to
assert a qualified immunity defense; after that, the
burden of proof shifts to the plaintiffs to show that the
officials are not entitled to qualified immunity
[citation omitted].”].
B. The Panel’s Decision Conflicts with Other
Circuits
The following Circuits disagree with the Panel
decision on who bears the burden of proof on the
affirmative defense of qualified immunity. The First
Circuit places the burden of proof on the defendant:
“Qualified immunity is an affirmative defense, and
thus the burden of proof is on defendants-appellants.”
DiMarco-Zappa v. Cabanilla, 238 F.3d 25, 35 (1st Cir.
2001). The Second Circuit places the burden on the
defendant: “Qualified immunity is an affirmative
defense for which the defendants bear the burden of
proof.” Jackler v. Byrne, 658 F.3d 225, 242 (2nd Cir.
2011). The Third Circuit places the burden of proof on
the defendant as it is “the party asserting the affirmative defense of qualified immunity” that “bears the
burden of persuasion on both prongs at summary
judgment.” Mack v. Yost, 63 F.4th 211, 227 (3rd Cir.
2023)1. The D.C. Circuit concurs: “Qualified immunity
1 Of note, Westlaw now contains a single “declined to follow” flag
App.97a
is an affirmative defense based on the good faith and
reasonableness of the actions taken and the burden of
proof is on the defendant officials.” Reuber v. United
States, 750 F.2d 1039, 1057 n.25 (D.C. Cir. 1984). The
Eighth Circuit mirrors: “Qualified immunity is an
affirmative defense for which the defendant carries
the burden of proof.” Wagner v. Jones, 664 F.3d 259, 273
(8th Cir. 2011). The Ninth Circuit follows suit: “Because the moving defendant bears the burden of proof
on the issue of qualified immunity, he or she must
produce sufficient evidence to require the plaintiff to
go beyond his or her pleadings.” Moreno v. Baca, 431
F.3d 633, 638 (9th Cir. 2005).
C. Supreme Court Precedent And Public
Policy Support The Burden of Proof of an
Affirmative Defense of Qualified Immunity on the Defendant
Qualified immunity is an affirmative defense
designed to limit the civil damages liability of public
actors in certain situations. As its title states, qualified
immunity is not an absolute defense. Rather, as
explained in nearly every decision discussing the
doctrine for the past forty years, qualified immunity
is an affirmative defense that “balances two important
interests—the need to hold public officials accountable
when they exercise power irresponsibly and the need
to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009).
As the Supreme Court identified in another decision discussing the qualified immunity doctrine, when
to the Third Circuit’s decision in Mack – to the Panel Opinion here.
App.98a
government officials abuse their offices: “action[s] for
damages may offer the only realistic avenue for
vindication of constitutional guarantees.” Harlow,
supra, 457 U.S. at 814. Harlow to this day stands as a
watershed decision on the elements of qualified
immunity: “Qualified or ‘good faith’ immunity is an
affirmative defense that must be pleaded by a defendant official.” Id., at 813-814 (citing Gomez, supra, 446
U.S. at 635).
Two years before Harlow, the Supreme Court
decided Gomez, where it also held that a police agent
defendant bore the burden of proving the affirmative
defense of qualified immunity in a 42 U.S.C. § 1983
action against him:
“Since qualified immunity is a defense, the
burden of pleading it rests with the defendant.
See Fed. Rule. Civ. Proc. 8(c) (defendant must
plead any “matter constituting an avoidance
or affirmative defense”); 5 C. Wright & A.
Miller, Federal Practice and Procedure § 1271
(1969). It is for the official to claim that his
conduct was justified by an objectively reasonable belief that it was lawful. We see no
basis for imposing on the plaintiff an obligation to anticipate such a defense by stating
in his complaint that the defendant acted in
bad faith.” Gomez, supra., 446 U.S. at 640641.2
2 See also: Federal Rules of Civil Procedure, Rule 8(c) [“defendant must plead any matter constituting an avoidance or affirmative defense”]; 5 Wright & Miller (4th Ed.), Federal Practice and
Procedure, § 1271 (1969).
App.99a
Put another way by an authoritative treatise:
“While the burden of going forward with evidence may
shift to the plaintiff after the defendant has
introduced some evidence, the ultimate burden of
proof remains on the defendant.” 2 Nahmod (2022),
Civil Rights & Civil Liberties Litigation: The Law of
Section 1983, § 8.1.
Decisions from the Circuit Courts hold that the
above-discussed Supreme Court precedent establishes
that qualified immunity is an affirmative defense requiring the burden to be carried by the defendant
asserting it, both as to pleading and proof. In Alexander
v. Alexander, 706 F.2d 751 (6th Cir. 1983) (“Alexander”),
the Sixth Circuit vacated a district court’s ruling
granting the defendant prison officials’ summary
judgment motion, on the grounds that district court
erred by placing the burden of proving qualified
immunity defense on wrong party, the plaintiff, as
opposed to the defendant claiming the defense:
“While the plaintiff in a Section 1983 action
bears the burden of pleading and proving
that the defendant deprived him of a federal
right . . . , an assertion of qualified immunity is an affirmative defense which must
be pleaded and proved by the defendant
official. [citing Gomez, supra, 446 U.S. at 640,
100 S.Ct. at 1923; (other citations omitted)].”
(emphasis added) Alexander, supra, 706 F.2d
at 753-754.
The Alexander decision was careful to point out
that its holding, that qualified immunity is an affirmative defense with the burden on the defendant to
prove it, was supported by the Supreme Court’s decision in Harlow:
App.100a
“Therefore, in light of Harlow’s modification
of the qualified immunity standard and the
Supreme Court’s recent instruction to this
circuit to apply Harlow retroactively, Wolfel
v. Sanborn, 691 F.2d 270, 271 (6th Cir.1982),
we hold that a Section 1983 defendant
retains the burden of pleading the qualified
immunity defense, Harlow v. Fitzgerald,
457 U.S. at ___, 102 S.Ct. at 2737, and
proving either that the law was not clearly
established at the time of plaintiff’s alleged
injury, or, if the law was clearly established,
that he neither knew nor should have known
of the relevant legal standard due to extraordinary circumstances. Id. at ___, 102 S.Ct. at
2739. Since the district court placed the
burden of proving the qualified immunity
defense on the wrong party, we remand this
case to the district court for reconsideration
of this issue in light of this opinion.”
Alexander, supra,706 F.2d, at 754.
Also instructive is Benigni v. City of Hemet, 879
F.2d 473 (9th Cir. 1988), where the Ninth Circuit held:
“The argument here centers on who has the
burden of proof on the immunity defense. It
is clear that qualified immunity is an affirmative defense (citing Harlow, supra, 102 S.
Ct. at 2736), and we think it equally clear
that the burden of proving the defense lies
with the official asserting it (citing Harlow,
supra, 102 S. Ct. at 2738.) . . . A number of
other circuits have reached the same conclusion, reading Harlow to say that bec
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