Appendix — Herring v. City of Colorado Springs (No. 07-504)

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APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-02429-PAC-BNB

THE ESTATE OF GREGORY L. HERRING, by and through

David Burford, Esq., GREGORY L. HERRING, JR., a

minor child, by and though his Guardian Ad Litem,

David Burford, Esq., SUMMER HERRING, a minor

child, by and through her Guardian Ad Litem,

David Burford, Esq., and, GREGORY Q. HERRING., a

minor child, by and through his Guardian Ad

Litem, David Burford, Esq.,

Plaintiff(s),

Vv.

THE CITY OF COLORADO SPRINGS, a municipal entity,

GARY DARRESS, individually and in his capacity as

a Colorado Springs Police Officer, RORY CARROLL,

individually and in his capacity as a Colorado

Springs Police Officer, and, BRENT AMBUEHL, indi-

vidually and in his capacity as a Colorado Springs

Police Officer,

Defendant(s).

MEMORANDUM OPINION AND ORDER

Patricia A. Coan, United States Magistrate Judge

This is a §1983 action brought by the Estate of

Gregory Herring (“the Estate”). Mr. Herring was an

adult male who died tragically after an altercation

with Colorado Springs police officers in Mr. Herring’s

apartment. Mr. Herring’s minor children, through

their guardian ad litem, are also plaintiffs in this

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action. All parties have consented to the jurisdiction

of a magistrate judge under 28 U.S.C. §636(c). In the

Second Amended Complaint, filed May 2, 2005, the

Estate asserts §1983 claims of excessive force, un-

lawful warrantless entry, and deprivation of sub-

stantive due process against the three police officers

who were at the scene immediately prior to Mr.

Herring’s death.’ The Estate also sues the City for

inadequately training its police officers. The minor

plaintiffs assert a claim against the defendants for

deprivation of their constitutional right of familial

association. Plaintiffs seek compensatory and puni-

tive damages.

The matter before the court is Defendants’ Motion

for Summary Judgment [filed August 1, 2005]. The

motion is fully briefed. I heard argument from the

parties on November 15, 2005.

I.

The following facts are not disputed, unless other-

wise noted. During the afternoon of May 2, 2003,

Scott Elder, a resident at the Winfield Apartments in

Colorado Springs observed Mr. Herring, an acquain-

tance who lived in an apartment building across the

parking lot from Elder, banging on apartment doors

in Mr. Elder’s building. (Affidavit of Scott Elder,

attached to MSJ, 91-4) Mr. Herring then began

banging violently on Mr. Elder’s apartment door. (Jd.

at 75) Mr. Elder feared for his safety because Mr.

Herring was six feet, two inches tall, and weighed

approximately 240 pounds. (Jd. at (6-7) Mr. Elder

‘On November 18, 2005, I dismissed plaintiffs’ official and

persona! capacity claims against Colorado Springs police chief

Luis Velez and plaintiffs’ state law tort claims, pursuant to the

parties’ stipulation.

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went to his balcony and called 911 to report Mr.

Herring’s behavior. ([d.) While Mr. Elder was on the

phone with the 911 operator, he heard a loud crash,

looked out his window again, and observed Mr.

Herring’s three children running from Mr. Herring’s

apartment screaming. (/d. at 98) Mr. Elder then

heard another crash and saw Mr. Herring, who had

returned to his own apartment, throw a chair out his

window. (Jd.) Mr. Elder reported these events to the

911 operator and ended the call. (/d. at 79)

Mr. Herring called 911 again a few minutes later to

report that Mr. Herring was breaking the windows in

his apartment, was throwing items out the windows,

was nude, and that his arms were slashed and

bleeding and his abdomen cut. (Jd. at 1910-12) When

police officers arrived in the parking lot shortly

thereafter, Elder directed them to Herring’s apart-

ment. (Id. at 1714-15)

Defendant Colorado Springs police officer Gary

Darress was the first police officer to respond. Mr.

Darress was advised of the information Mr. Elder

relayed to the 911 operator while he was en route to

the scene. (Affidavit of Officer Gary Darress, attached

to Defendants’ MSJ, at 9/2-3) Darress was also ad-

vised that Herring did not have a weapon. (Depo-

sition of Gary Darress, attached to Plaintiffs’ Re-

sponse, at 71)

Mr. Elder directed Officer Darress to Herring’s

ground level apartment and told Darress that the

children had already left the apartment. (Darress

deposition, at 80) Darress approached the front of Mr.

Herring’s apartment and observed a broken window

and numerous household items lying on the ground,

including several children’s items. (Darress Affidavit,

(6) Darress then looked inside the broken window

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and saw items thrown all over the apartment and

blood on the walls. Ud. at 97) Darress heard a

grunting or moaning noise coming from someone

inside the apartment. (/d. at 49) Darress did not

know at that time whether anyone else was in the

apartment with Mr. Herring. (U/d. at 18) Darress then

walked around the exterior of the apartment and

noticed that every window was broken out and that

there was blood throughout the other rooms. (Jd. at

411) When he reached the back of the apartment, he

observed Mr. Herring, naked and leaning out the

window with his abdomen pressed against the lower

broken window frame. (Jd. at 412) Darress also saw

cuts on Herring’s arms and abdomen. (Jd. at {{12,

14) Darress suspected that the cuts had been caused

by broken glass. (Jd. at 412) Darress introduced

himself to Herring as a police officer. (id. at 413)

Herring continued to throw items out the window.

(Ju.) Herring did not throw any objects at Darress.

(Darress Deposition, at 95) Herring also “mumbled or

muttered something about war” and expressed con-

cern that Darress was a police officer who might be

there to hurt him. (/d. at 94) Darress’ assessment of

the situation was that Mr. Herring might be having a

“mental breakdown,” was intentionally injuring him-

self, and was possibly attempting to commit suicide.

(Darress Affidavit, {14; Darress Deposition, at 87)

Defendant Colorado Springs police officers Carroll

and Ambuehl then arrived at the scene separately.

(Darress Affidavit, 115) Both had been advised that

Herring was creating a disturbance and did not have

a weapon. (Affidavit of Officer Rory Carroll, attached

to MSJ, 93; Affidavit of Officer Brent Ambuehl,

attached to MSJ, 93; Deposition of Rory Carroll,

attached to Plaintiffs’ Response, at 111) Carroll

observed blood on one or two other apartment doors

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before responding to Mr. Herring’s apartment. (Car-

roll Affidavit, at 75) At Herring’s apartment, Carroll

and Ambuehl saw officer Darress outside one of

several broken apartment windows, telling Mr.

Herring to calm down, while Herring threw objects

out the window. (Carroll Affidavit, 46; Ambuehl Affi-

davit, (7) Carroll observed that Herring had blood on

him, but could not determine whether Herring was

bleeding, or whether the blood was from someone

else. (Carroll Deposition, at 147-148) Although

Carroll had been advised by the dispatcher that

Herring’s children had left the apartment, he was

concerned that someone else might be inside with

Herring who needed medical attention because of all

the blood he observed on Herring and on the doors

of other apartments. (Carroll Affidavit, 931-32)

Ambuehl could see that Herring was naked from the

waist up, was bleeding, and had blood all over his

body. (Ambuehl Affidavit, 78) The dispatcher told

Ambuehl that children were living with Mr. Herring,

but the defendant did not know if any children who

might need help immediately were present in the

apartment with Herring at that time. (Ambuehl Affi-

davit, 113, 9, 34, 35)

Darress, who was the higher ranking officer, deter-

mined that officers Carroll and Ambuehl should enter

Herring’s apartment while Darress distracted Herr-

ing at the broken window. (Darress Affidavit, 15;

Carroll Deposition, at 141) Darress hoped that the

other officers could subdue Herring to prevent

Herring from continuing to hurt himself and to get

him some medical attention, and also to prevent

Herring from jumping out the window and injuring

himself further or injuring someone else. (Id.)

Darress did not believe that there were any children

in the apartment based on Elder’s and Herring’s

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statements to Darress that the children had left, but

he was concerned that someone else, injured and

hidden from view, might be inside. (Darress Affidavit,

414; Darress Deposition, at 96-97)

Darress instructed Carroll and Ambuehl to kick in

the front door after they told him that the door was

locked. (Darress Affidavit, 116; Carroll Affidavit, 17;

Ambueh] Affidavit, 710) At that time, Carroll and

Ambuehl had been present at the scene less than five

minutes. (Carroll Deposition, at 123) Carroll walked

through the apartment to the bedroom where Herr-

ing was standing naked, with blood all over his arm

and abdomen. (Carroll Affidavit, 710) Carroll also

observed blood on the apartment walls. (/d.) Officer

Ambuehl checked the apartment to see if anyone

else was inside, but did not find anyone. (Ambuehl

Affidavit, 113)

When Herring saw Carroll, he “threw a broken

shelf and bottle at [him], which missed. (Carroll

Affidavit, J11; Carroll Deposition, at 150) The offi-

cers’ accounts about what happened next are some-

what inconsistent. Carroll stated in his affidavit in

support of the summary judgment motion that he

sprayed Herring in the face with a single burst of

O.C. spray (mace) after Herring began to approach

Carroll and ignored Carroll’s order to stop. (Carroll

Affidavit, 911) Carroll testified in his deposition,

however, that Herring did not approach him until

after Carroll sprayed him with a one-second burst of

mace. (Carroll Deposition, at 155-56, 159) Officer

Ambuehl testified in his deposition that when he and

Carroll entered the apartment, Herring was throwing

objects all over the place, and that Carroll sprayed

Herring with a one-second burst of O.C. spray at a

distance of three to four feet after Herring threw a

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few objects in Officer’s Carroll’s direction and took a

step towards Carroll. (Deposition of BrentAmbuehl,

at 96-98) Ambuehl stated in his affidavit that Carroll

sprayed Herring after Herring ignored Carroll’s

directive to “calm down and step back.” (Ambuehl

Affidavit, 715)

After Carroll sprayed Herring with the O.C. spray,

Herring hesitated for a second, wiped the mace from

his face, stated “we are all going to die,” and charged

at officer Carroll, initiating physical contact. (Carroll

Affidavit, 12; Darress Affidavit, 418; Ambuehl Affi-

davit, (15) Herring grabbed Carroll’s left shoulder

and pushed him back on to the bathroom floor.

(Carroll Affidavit, 114) Herring then squeezed Car-

roll’s testicles, causing Carroll to scream in pain. (Jd.

at 715) Carroll hit Herring with his fist once in the

middle of Herring’s back while ordering Herring to

let go of him, and struck Herring again after Herring

refused to comply. (/d.) Herring then released Car-

roll and again said “we are all going to die.” (Jd.)

Ambuehl came into the bathroom, grabbed Herring’s

feet, and ordered him to stop resisting. (Ambuehl

Affidavit, (18) Herring was fighting so hard that he

was throwing Ambuehl and Carroll around the

bathroom. (Jd. at 119)

In the meantime, Officer Darress entered the

apartment and grabbed a blanket with which to

subdue Herring and to protect the officers from

Herring’s blood and other bodily fluids. (Darress

Affidavit, 919) Darress found officers Carroll and

Ambuehl on the floor inside a small bathroom,

attempting to gain control of Herring. (Jd. at 20)

There was water and blood all over the bathroom

floor. Ud. at (21; Ambuehl Affidavit, 717) Herring

was face down on the floor with Carroll on his left

side in the area of Herring’s head and shoulders, and

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Ambuehl! was at Herring’s feet. (Darress Affidavit,

q22; Carroll Affidavit, 116; Ambuehl Affidavit, 722)

Darress attempted to wrap the blanket around

Herring, but Herring was struggling too much, and

the blanket landed in the bathtub. (Darress Affi-

davit, {23) Carroll struck Herring on the shoulder

with his fist in an effort to restrain him. (Carroll

Affidavit, 17)

Officer Darress positioned himself on Herring’s

right side as Herring lay face down, took out his

handcuffs and handed them to officer Carroll who

was able to get one cuff around Herring’s left wrist;

however, Carroll could not get the other cuff on

because Herring was struggling so hard that he was

physically lifting Officers Darress and Carroll off the

floor. (Darress Affidavit, (24; Carroll Affidavit, 117;

Darress Deposition, at 105) Herring then grabbed

Darress’ testicles and squeezed hard causing Darress

to scream out in pain. (Darress Affidavit, 425)

Darress hit Herring on the head with the soft side of

his fist approximately five or six times before Herring

finally let go of him. (/d.) Herring then bit officer

Carroll’s hand. (Ud. at 726; Carroll Affidavit, (21)

Carroll struck Herring in the side of the face in an

effort to get Herring to let go of his hand. (Carroll

Affidavit, 122; Darress Affidavit, 126) While Herring

was biting Carroll’s hand, Herring also grabbed

Darress’ baton and pulled it out of its holder.

(Darress Affidavit, (27) Darress fought Herring to

get the baton back. (/d.) After Darress secured his

baton, Herring continued to fight and Darress struck

Herring three or four times on the head using a flat

chop (a technique where the officer holds the baton

by the short handle and the long extended portion of

the baton is parallel to the forearm). (/d.) Darress

continued to yell at Herring to calm down, but

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Herring kept fighting. (/d. at (28) Darress surmised

that Herring was high on a mind altering drug. (/d.)

Herring then bit Darress on his right knee at which

time Darress struck Herring in the head with his fist

several times, while yelling at Herring to stop biting

him. (/d. at 29)

While the struggle was going on, Officer Carroll

thought that Herring was going after his gun because

Herring grabbed his firearm holster twice. (Carroll

Affidavit, 1918, 24) Carroll tried to pull Herring’s left

arm behind his back, but Herring pulled Carroll

forward. (Id. at J19) Carroll struck Herring with his

fist on Herring’s shoulder. (/d.) In another attempt

to control Herring’s arms, Carroll and Ambuehl

attempted to place Carroll’s baton under Herring’s

armpit and tried to pull his arm back to restrain him,

but that effort failed. Ud. at (20; Ambuehl Affidavit,

{23) Carroll then gave his baton to Ambuehl to use

under Herring’s legs as a compliance maneuver;

when that failed as well, Ambuehl put the baton next

to the sink. (/d.)

Approximately three minutes after the officers

kicked in the door to Herring’s apartment, Darress

radioed for medical personnel to come in and assist

because the police officers had been unable to

restrain Herring. (Darress Affidavit, 430; Ambuehl

Affidavit, [924-25; Carroll Deposition, at 163) Herr-

ing continued to fight and physically lifted Officer

Carroll and Darress off the floor. (Darress Affidavit,

31) At some point, Darress pressed his thumb into a

pressure point on the side of Herring’s neck to get

him to comply with his commands to calm down, but

the maneuver appeared to have no effect. (Id.)

Darress was eventually able to handcuff Herring’s

right wrist, but Herring continued to fight and was

10a

able to push himself up, while Darress was on his

back, so that Herring was on his forearms with his

upper body propped up off the floor. (Darress Affi-

davit, 1132, 34) Darress felt that if Herring got to his

feet, the officers would not be able to contain him, so

Darress pushed down on Herring with his arms and

upper body in a jumping motion, lying on Herring’s

back, in an effort to get Herring to lie down on the

ground. (Jd. at 135) Carroll also struck Herring in the

back twice with his fist and ordered Herring to get

down. (Carroll Affidavit, 423) Darress again called

for medical personnel to come in and assist. (Darress

Affidavit, 133)

When fire department personnel and the para-

medics entered the apartment and proceeded to the

bathroom, they observed that Herring was fighting

the officers so hard that they could not control him.

(Affidavit of Firefighter/Paramedic Clark’ Gaddie,

attached to MSJ, 99; Affidavit of Firefighter Lerry

Armstead, attached to MSJ, 796-8). One of the

paramedics gave Herring a shot of Haldol in his

buttock which appeared to have no effect. (Gaddie

Affidavit, 9912-13; Armstead Affidavit, 79; Darress

Affidavit, 436; Carroll Affidavit, (25; Ambuehl Affi-

davit, 427) A second shot, this time of Valium, was

administered, and Herring slowly began to calm

down. (Gaddie Affidavit, 14; Armstead Affidavit,

410; Darress Affidavit, (36; Carroll Affidavit, 26;

Ambuehl Affidavit, 1928-29) Darress then confirmed

to the paramedic that Herring was breathing. (Gad-

die Affidavit, 716; Darress Affidavit, 137) Because

Herring had calmed down, the officers left the

bathroom and went outside. (Darress Affidavit, 138;

Carroll Affidavit, 127; Ambuehl Affidavit, 130) A few

minutes later, Herring stopped breathing, but still

had a strong carotid pulse. (Gaddie Affidavit, 719)

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After Herring was placed in the ambulance he no

longer had a pulse. (Jd.) He received CPR en route to

the hospital where he was pronounced dead. (Jd.)

The record reflects that the paramedic’s admin-

istration of one injection of 5 mg of Haldol, followed

by an injection of 5 mg of Valium, complied with

medical procedure and was one half of the medically

authorized dose of each medication. (Deposition of

Clark Gadde, attached to Plaintiffs’ Response, at

50-54) ’

The only evidence about the cause of Mr. Herring’s

death is the report of plaintiffs’ expert pathologist

who opines that Officer Darress’ action in pressing

his thumb into the front of Herring’s neck caused

Herring’s trachea to collapse, thereby effectively

blocking his airway. (Opinion Letterof Linda E.

Norton, M.D, attached to Plaintiffs’ Response as Ex.

G, and accompanying Affidavit, filed November 18,

2005’) Dr. Norton determined that Herring went into

respiratory arrest before the drugs had an oppor-

tunity to reach his bloodstream. (/d.) Dr. Norton’s

opinion also is based on the fact that Herring did not

have a pulse when he was placed into the ambulance

and that the cardiac monitor in the ambulance

showed “profound bradycardia’ which became asy-

stole‘ during transport.” (Id. )

* Dr. Norton states that she reviewed the autopsy report for

Mr. Herring in preparing her expert report on the cause of Mr.

Herring’s death. (Plaintiffs’ Response, Ex. G) The autopsy report

has not been provided to the court.

> “Bradycardia” is excessive slowness in the action of the

heart, usually with a heart rate below sixty beats per minute.

See www. online-medical-dictionary.org.

*“Asystole” means cessation of the heartbeat. See id.

12a

The physical altercation between Herring and the

defendant police officers lasted less than thirteen

minutes. (Carroll Deposition, at 163-65; Plaintiffs’

Ex. E)

IT.

The purpose of summary judgment is to determine

whether trial is necessary. White v. York Int'l. Corp.,

45 F.3d 357, 360 (10th Cir. 1995). Summary judg-

ment is appropriate under Fed. R.Civ.P. 56(c) when

the “pleadings, depositions, answers to interroga-

tories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” The

movant bears the initial burden to “point to those

portions of the record that demonstrate an absence of

a genuine issue of material fact given the relevant

substantive law.” Thomas v. Wichita Coca-Cola

Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992). If

this burden is met, the nonmovant must “come

forward with specific facts showing that there is a

genuine issue for trial as to elements essential to {the

nonmovant’s claim].” Martin v. Nannie and the

Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir. 1993)

(internal citations omitted). The nonmovant has the

burden to show that there are genuine issues of

material fact to be determined. Celotex Corp. v. —

Catrett, 477 U.S. 317, 322 (1986). The court views the

evidence of record and draws all reasonable infer-

ences in the light most favorable to the nonmovant.

Thomas v. International Business Machines, 48 F.3d

478, 484 (10th Cir. 1995). To defeat a properly

supported motion for summary judgment, “there

must be evidence upon which the jury could rea- ’

sonably find for the plaintiff.” Panis v. Mission Hills

13a

Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 252 (1986)). I proceed with caution because only

the police officers, who are obviously “interested

persons,” can testify as to what occurred on that

tragic day, while the decedent cannot.

Ii.

Officers Darress, Carroll and Ambuehl assert the

qualified immunity defense in response to plaintiffs’

claims against them in their personal capacities.

Qualified immunity shields public officials from

civil damages liability if their actions did not “violate

clearly established statutory or constitutional rights

of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When

a public official raises the defense of qualified

immunity, the plaintiff first must establish that the

complained of conduct constitutes a violation of a

constitutional or statutory right. See Smith v. Coch-

ran, 339 F.3d 1205, 1211 (10th Cir. 2003) (internal

citation omitted).

If the plaintiff points to sufficient evidence to show

that the defendant has violated his constitutional

right, the defendant is nonetheless entitled to

qualified immunity if his actions were reasonable in

light of clearly established law. “A law is “clearly

established” for purposes of qualified immunity if

there is a Supreme Court or Tenth Circuit decision

on point, or if “the clearly established weight of

authority from other circuits [has] found the law to

be as the plaintiff maintains.” Johnson v. Martin, 195

F.3d 1208, 1216 (10th Cir. 1999) (quoting Murrell v.

School Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1251

(10th Cir. 1999))(internal citation omitted). To satisfy

l4a

the clearly established law requirement, the plaintiff

need not identify a case presenting the exact factual

situation at hand; instead, the inquiry focuses on

whether the public official reasonably should have

known, in light of existing law, that his conduct

was unlawful. Johnson, 195 F.3d at 1216; accord

Anderson v Creighton, 483 U.S. 635, 640 (1987) (“The

contours of the right must be sufficiently clear that a

reasonable official would understand that what he is

doing violates that right”); Saucier v. Katz, 533 U.S.

194, 202 (2001) (stating that for the law to be clearly

established, it must “be clear to a reasonable officer

that his conduct was unlawful in the situation he

confronted”); Hope v. Pelzer, 536 U.S. 730, 741 (2002)

(“the salient question . . . is whether the state of the

law [at the relevant time] gave [defendants] fair

warning that their alleged [conduct] was uncon-

stitutional”).

If the plaintiff fails to satisfy either part of the

bipartite inquiry, the court must grant the defendant

qualified immunity. Smith, 339 F.3d at 1211. If the

plaintiff establishes that defendant’s conduct violated

a clearly established right, the burden shifts to the

defendant to prove that “there are no genuine issues

of material fact and that he or she is entitled to

judgment as a matter of law.” Medina v. Cram, 252

F.3d 1124, 1128 (10th Cir. 2001) (internal quota-

tion omitted).

A. Warrantless Entry

Plaintiff Estate claims that the defendant police

officers’ warrantless and non consensual entry of

Herring’s home violated the Fourth Amendment

because the officers did not have probable cause to

believe that exigent circumstances existed to justify

the entry.

15a

A warrantless entry of an individual’s home is

presumptively unconstitutional unless the govern-

ment establishes that an exception to the warrant

requirement existed at the time of the entry. See

United States v. Anderson, 154 F.3d 1225, 1233 (10th

Cir. 1998). Emergency circumstances may, in appro-

priate cases, make a warrantless entry constitu-

tional. Id. “[Ajbsent consent or exigent circum-

stances, police may not enter a citizen’s residence

without a warrant.” United States v. Scroger, 98 F.3d

1256, 1259 (10th Cir.1997). Police officers may make

a warrantless entry if they have a reasonable belief

that their own lives or the lives of others are in

danger. Mincey v. Arizona, 437 U.S. 385, 393 (1978)

(“(T]he Fourth Amendment does not bar police offi-

cers from making warrantless entries and searches

when they reasonably believe that a person within is

in need of immediate aid.”)

The basic elements of the “exigent circumstances”

exception are: (1) that law enforcement officers had

reasonable grounds to believe that there was an

immediate need to protect their lives or others or

their property or that of others; (2) the entry was not

motivated by an intent to arrest and seize evidence;

and, (3) there was a reasonable basis, approaching

probable cause, to associate an emergency with the

area or place entered. United States v. Wicks, 995

F.2d 964, 970 (10th Cir. 1992) (citing United States v.

Smith, 797 F.2d 836, 840 (10th Cir. 1986)).

The government bears the burden of proving

exigency. Wicks, 995 F.2d at 970. The government’s

burden is “particularly heavy where the police seek to

enter a suspect’s home.” Roska ex rel. Roska uv.

Peterson, 328 F.3d 1230, 1240 (10th Cir. 2003) (quot-

16a

ing United States v. Anderson, 981 F.2d 1560, 1567

(other internal quotation and citation omitted)).

In evaluating whetheran exigency existed atthe

time defendants entered Herring’s apartment, I

examine the circumstances “as they would have ap-

peared to prudent, cautious, and trained officers.”

Anderson, 154 at 1233 (internal citations omitted).

The record shows that Darress, the first officer to

arrive at the scene, was told by the dispatcherthat

Herring initially had been running around banging

on apartment doors; that after Herring returned

to his own apartment, he began throwing objects

through a broken window; that Herring was nude

and his arm and abdomen were cut and bleeding; and

that Herring’s children had run out of the apartment.

Darress was also told that no one had seen Herring

with a weapon. When Darress arrived at Herring’s

apartment, he walked around the perimeter and

observed that every window was broken, that objects

had been thrown all over the apartment, and that

there was blood throughout the inside of the apart-

ment. When Darress reached the room where Herr-

ing was standing throwing objects out the window, he

did not see Herring with a weapon. Darress did not

believe that there were any children remaining in the

apartment based on statements made by Elder, the

reporting witness, and by Herring, but he did not

know whether anyone else was in the apartment.

Darress did not see anyone else in the apartment.

Darress also believed that Herring was trying to

injure himself and might need immediate medical

aid. Based on his concerns, Darress instructed offi-

cers Carroll and Ambuehl to kick in the door and

enter the apartment. Officers Carroll and Ambuehl

were concerned that someone else, including more

17a

children, might be in the apartment because of all

the blood they saw on Herring, the sidewalk and

other apartment doors, along with all of the broken

windows.

Under the first element of the exigency analysis, I

find that the defendants did not have reasonable

grounds to believe that their own lives were in

danger before they entered Mr. Herring’s apartment.

The officers had not received any information that

Herring had a weapon, nor did they see Herring with

a weapon. Further, although Herring was throwing

objects out the window while talking to Officer

Darress, he did not throw anything directly at Dar-

ress, nor did he threaten Darress or the other

officers. Indeed, Darress’ confidence in his own safety

is evidenced by his deposition testimony that he stood

only five feet away from the window during his

attempted conversation with Herring. (Darress Depo-

sition, at 92) Accordingly, the warrantless entry was

lawful only if defendants had a reasonable belief that

someone inside the apartment, including Herring,

was in need of immediate aid.” Defendants maintain

that they had a reasonable basis to believe that Mr.

Herring needed immediate medical attention be-

cause of the blood they observed on Herring’s body

and around the apartment, as well as outside the

apartment. Defendants also contend that they had a

reasonable belief that someone else (possibly the

children’s mother), might be inside the apartment

who needed aid, because of the blood, the destruction

‘I note that there is no evidence in the record to suggest, nor

do the defendants argue, that the warrantless entry was justi-

fied by an immediate need to protect property, such as evidence

in a criminal case.

18a

inside the apartment, and the fact that the children

ran out of the apartment.

Plaintiff Estate emphasizes that the officers did not

have any specific information that Herring had a

weapon, that anyone else was inside the apartment,

or that Herring had harmed anyone. Plaintiff also

argues that it was unreasonable for officers to believe

that Herring was seriously injured because he was

standing at the window while Officer Darress at-

tempted to converse with him.

Plaintiff Estate maintains that the report of its

police policy expert, W. Ken Katsaris, demonstrates

‘the existence of a material factual issue about the

legality of defendants’ actions. The expert opines:

The breakdown on proper police procedures

began when Darress did not assess that this was

a mental health issue and that because there

was no threat to Herring or others, that a

perimeter be established and communication

begun to calm Herring. There was no recognition

that time was on the side of the police for a

resolution without injury to the officers or Herr-

ing. The almost immediate entry, when Herring

already voiced fear of the officers, escalated the

need for force. Furthermore, Darress did not

even think to contact his supervisor for assis-

tance with an assessment. Entry in this incident

was improper and exacerbated and accelerated a

contact before any of the recognized procedures

were implemented. It is well recognized that

absent a direct and imminent threat, officers

should keep their distance and not be threaten-

ing with an emotionally disturbed person.

Plaintiffs’ Ex. H, at {D.6 (Emphasis in the original).

The Estate’s expert concludes that defendants acted

19a

improperly in entering the home of an individual who

appeared to be emotionally disturbed instead of

following “recognized procedures.” The substance of

those procedures have not been provided to the court.

Defendant Ambuehl testified in his deposition that

during an academy training session prior to May

2003, he received some general written guidelines

about interacting with emotionally disturbed persons.

(Ambuehl Deposition at 42) The guidelines, as dis-

cussed in Officer Ambuehl’s deposition,’ state the

following general principles for police officers:

(1) stay calm and don’t overreact;

(2) gather information from family or bystand-

ers;

(3) indicate that you are there to understand

and help;

(4) speak simply and briefly and move slowly;

(5) remove distractions, upsetting influences,

and disruptive people from the scene;

"I note that, to the extent that plaintiffs’ expert’s determi-

nation that the warrantless entry was “improper” because

“there was no threat to Herring or others,” Plaintiffs’ Ex. H, at

qD.6, was, in part, an opinion about the existence of exigent

circumstances sufficient to justify a warrantless entry, that

opinion is inadmissible as an ultimate legal conclusion. See

Zuchel v. City and County of Denver, 997 F.2d 730, 742-43 (10th

Cir. 1993)holding that expert may state an opinion on whether

conduct at issue fell below accepted standards in the field of law

enforcement but may not give an opinion on the constitution-

ality of the conduct); Okland Oil Co. v. Conoco Inc., 144

F.3d 1308, 1328 (10th Cir.1998)(holding that an expert may not

“state legal conclusions drawn by applying the law to the

facts.”))

’ The written guidelines have not been provided to the court.

20a

(6) recognize that the person may be over-

whelmed by sensations, thoughts, frightening

beliefs, sounds, voices orthe environment;

(7) be friendly, patient, accepting and encour-

aging, but remain firm and professional; and

(8) Be aware that your police uniform, gun,

handcuffs, and nightstick may frighten the per-

son. Reassure the individual that you don’t

intend harm.

(Id. at 43-53)

Even if the defendants did not employ some of the

above guidelines or other “recognized procedures” for

interacting with the mentally ill, police officers

cannot be held liable under §1983 solely on the basis

that their conduct does not comport with police

policies and procedures. “Officials sued for constitu-

tional violations do not lose their qualified immunity

merely because their conduct violates some statutory

or administrative provision.” Davis v. Scherer, 468

U.S. 183, 194 (1984); see, also, Medina, 252 F.3d at

1133 (recognizing that claims based on violations of

state law and police procedure are not actionable

under § 1983) (internal citations omitted). Thus, even

if the preferred course of action would have been, as

plaintiff Estate suggests, to continue a non con-

frontational dialogue with Mr. Herring and to call for

someone in the police department who had more

specialized training in dealing with the mentally ill

instead of making an immediate entry, the reason-

ableness standard does not require police officers to

use “alternative ‘less intrusive’ means.” IJ/linois v.

Lafayette, 462 U.S. 640, 647-48 (1983); see, also,

United States v. Brown, 64 F.3d 1083, 1086 (7th Cir.

1995) (“The question posed by the fourth amendment

2la

is not whether it would have been reasonable to get a

warrant, but whether the [entry] itself was rea-

sonable”) (citing United States v. Edwards, 415 U.S.

800, 807 (1974)).

The reasonableness of defendants’ warrantless

entry is a close question. The reporting witness and

Herring advised Darress that Herring’s children had

left the apartment; the officers did not receive any

specific information that Herring had been involved

in a physical altercation with another persen, or that

anyone else was inside the apartment; and, the

officers did not observe anyone through the windows.

Moreover, Herring did not make any verbal threats

to the police officers; Herring’s presentation to Officer

Darress was not physically threatening; and, Herring

did not possess a weapon to the officers’ knowledge.

A police officer’s subjective belief that someone

inside might need immediate aid, without more, does

not justify a warrantless entry. See United States v.

Arch, 7 F.3d 1300, 1304 (7th Cir. 1993); see, also,

United States v. Musa, 401 F.3d 1208, 1217 (10th Cir.

2005) (Henry, J., concurring) (stating that offi-

cers’ testimony that he was concerned because the

police lacked knowledge about the inside of the resi-

dence and that the lack of knowledge was potentially

dangerous did not establish exigent circumstances

sufficient to justify a warrantless entry).

[In Arch, the Seventh Circuit held that exigent

circumstances justified officers’ warrantless entry of

the defendant’s hotel room where the defendant

answered the officers’ knock on his door with a knife

in hand; defendant was behaving in an agitated and

bizarre manner; the hotel room was torn apart with

furniture overturned; and, the floor was littered with

syringes and a bloody rag. 7 F.3d at 1304-05. The

22a

Seventh Circuit reasoned that even though the

officers had not received any information that the

defendant had injured another person or that another

person had been in the hotel room, the officers’

observation of the defendant’s behavior and the

contents of the room “made it reasonable for them to

believe that there might be someone else present who

needed medical attention.” Jd. at 1305.

Here, the circumstances supporting a finding of

exigency are not as strong as they were in Arch

because the defendants did not have any information

that Mr. Herring was armed, nor did they observe

him with a weapon; however, Mr. Herring was a

large man and the absence of a weapon does not

negate a finding of exigency. For example, in Keeney

vu. City of New London, 196 F.Supp.2d 190 (D.Conn.

2002), the district court upheld police officers’ war-

rantless entry of the unarmed plaintiffs apartment

based on the officers’ reasonable belief that plaintiff

posed a danger to himself or others. The officers had

responded to a report that plaintiff was “acting

strangely and breaking tree limbs” and during police

contact the plaintiff “assumed a fighting stance and

rambled incoherently” and then fled from police cffi-

cers who followed plaintiff to an apartment building.

Id. at 194-197. The apartment building manager told

the officers that the plaintiff had probably stopped

taking his medication and let the officers into

plaintiffs apartment. Jd. at 195. Here, although Mr.

Herring was in his apartment at the time of the

police contact, he had previously been outside bang-

ing on other apartment doors where he left traces of

blood; he destroyed the contents of his apartment and

broke out all the windows; his children ran out of the

apartment; Herring was bleeding; and there was

23a

blood throughout the apartment which may or may

not have belonged to Herring.

Further, although Mr. Herring had not verbalized

a threat to commit suicide, he had bleeding lacer-

ations on his arm and abdomen. A cautious and

prudent police officer may have reasonably perceived

those lacerations as a suicidal gesture in light of Mr.

Herring’s other bizarre behavior. Contrast Sepatis v.

City and Gounty of San Francisco, 217 F.Supp.2d 992

(N.D.Cal. 2002) (holding that exigent circumstances

did not justify officers’ warrantless entry of plaintiffs

home on two occasions where neighbors reported

bizarre and loud behavior by plaintiff, but did not

report that he had a weapon, plaintiff had not threat-

ened the neighbors, police officers did not observe

plaintiff with a weapon, officers did not reasonably

fear for their safety, and plaintiff had not made any

suicidal gestures and demonstrated lucidity when

police officers spoke to him).

Upon careful review of the record, I find that even

if defendants’ belief that someone inside Mr. Herr-

ing’s apartment, including Mr. Herring, might be in

need of immediate aid—based on Herring’s behavior

in banging on the doors of other apartments, in

ransacking the inside of his apartment, in breaking

out all of his apartment windows, and in somehow

cutting himself on the arm and abdomen, together

with the blood on Mr. Herring and throughout the

inside of his apartment, the officers’ inability to

discern whether all of the blood came from Herring,

and the fact that Mr. Herring appeared to be emo-

tionally disturbed or on drugs—was not objectively

reasonable, the unlawfulness of the warrantless

entry was not apparent to the defendants in light of

pre-existing law. Anderson, 483 U.S. at 640. Stated

24a

otherwise, although an individual’s right to be free

from a warrantless entry into his home absent

exigent circumstances is clearly established under

Mincey v. Arizona and United States v. Wicks,

existing law did not put a reasonable police officer on

notice in May 2003 that the warrantless entry in the

circumstances of this case was clearly unlawful. See

Saucier, 533 U.S. at 206 (recognizing that the qual-

ified immunity doctrine “operates to grant officers

immunity for reasonable mistakes as to the legality

of their actions.”) Plaintiffs have not cited any cases

to the contrary.’ Accordingly, the individual defen-

dants are entitled to qualified immunity on the

plaintiff Estate’s claim that defendants’ warrantless

entry of Mr. Herring’s apartment violated his Fourth

Amendment rights.”

* Plaintiff relies on Myers v. Okla. Cnty. Bd. of Cnty. Commis,

151 F.3d 1313 (10th Cir. 1998); however, that case is factually

distinguishable. In Myers, the Tenth Circuit held that police

officers’ entry into an armed suicidal person’s apartment did not

unreasonably create the need to use deadly force against that

person because the officers had spent hours attempting to

resolve the situation through communications with the indi-

vidual and had ultimately secured a court order authorizing

them to take the decedent into protective custody. 151 F.3d at

1320. The holding in Myers cannot be construed to stand for the

proposition urged by the plaintiff Estate: that it is unreasonable

as a matter of law for police officers to enter the home of an

emotionally unstable person without a warrant before attempt-

ing to engage in lengthy non confrontational communications

with that individual.

* Consideration of the second and third factors of the exigency

analysis do not compel a different result. Under the second

factor, there is no evidence that the officers’ entry was moti-

vated by an intent to arrest and seize evidence. Once inside the

apartment, the officers checked the other rooms to determine

that no one else was present, and then proceeded to the room

25a

B. Constitutionality of Officers’ Use of Force

The Estate next claims that the defendant officers

used unconstitutionally excessive force against Mr.

Herring.

In Graham v. Connor, 490 U.S. 386, 395 (1989), the

Supreme Court held that “all claims that law en-

forcement 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 ‘reasonable-

ness’ standard.” A “seizure” occurs when an officer’s

show of authority during a police-citizen encounter

succeeds in restraining the citizen. See Latta v.

Keryte, 118 F.3d 693, 698 (10th Cir. 1997) (internal

citation omitted); see, also, United States v. Harris,

313 F.3d 1228, 1234 (10th Cir. 2002) (“Ultimately, a

seizure requires either the use of physical force by

the police officer or submission by the individual to

the police officer’s assertion of authority”)(citing

California v. Hodari D., 499 U.S. 621, 626 (1991)).

Here, Mr. Herring was seized when the officers used

physical force in their efforts to handcuff him after

he charged at Officer Carroll, grabbed Carroll’s

shoulder, and pushed the defendant to the floor, in

response to being sprayed with mace. Accordingly, I

analyze Mr. Herring’s excessive force claim under the

Fourth Amendment.

where Herring was located. (Ambuehl Deposition, at 88-90)

Under the third factor, the same facts which supported defen-

dants’ belief that there was an immediate need to protect the

lives of others are the same facts they rely on to show that they

had a reasonable basis, approaching probable cause, to associate

an emergency with the area or place entered.

26a

The reasonableness of a particular use of force

must be assessed based on the totality of the cir-

cumstances, including the severity of the crime at

issue, whether the suspect posed an immediate

threat to the safety of the officers or others, and

whether he was actively resisting arrest or attempt-

ing to evade arrest by flight. Graham, 490 U.S. at

396. “Because 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, the reasonableness of the officer’s belief as

to the appropriate level of force should be judged

from that on-scene perspective.” Saucier, 533 U.S. at

205 (internal citations and quotations omitted).

The court should consider an individual’s apparent

mental instability as part of the totality of the

circumstances in assessing the reasonableness of the

force used against that person. See Champion uv.

Outlook Nashville, Inc., 380 F.3d 893, 904 (6th Cir.

2004) (“The diminished capacity of a unarmed de-

tainee must be taken into account when assessing the

amount of force exerted”); Abdullahi v. City of Madi-

son, 423 F.3d 772, 763 (7th Cir. 2005) (recognizing

that officers’ awareness of decedent’s mental dis-

ability may be relevant to reasonableness of force

used against decedent); Ludwig v. Anderson, 54 F.3d

465, 472 (8th Cir. 1995) (concluding that the mental

state of an emotionally disturbed person and police

guidelines regarding contact with emotionally dis-

turbed persons are relevant in assessing the reason-

ableness of an officer’s use of deadly force); Deorle v.

Rutherford, 272 F.3d 1272, 1283 (9th Cir. 2001)

(“([W]here it is or should be apparent to the officers

that the individual involved is emotionally disturbed,

that is a factor that must be considered in deter-

27a

mining . .. the reasonableness of the force em-

ployed”); see, also, Cruz v. City of Laramie, Wyo., 239

F.3d 1183, 1188-89 (10th Cir. 2001) (holding that use

of hog-tie restraint on person with apparent and

discernible diminished mental capacity is unconstitu-

tional). However, “[k]nowledge of a person’s disability

. cannot foreclose officers from protecting them-

selves .. . when faced with threatening conduct from

the disabled individual.” Bates exrel. Johns v. Ches-

terfield Cnty., Va., 216 F.3d 367, 372 (4th Cir. 2000);

see, also, Unzueta v. Steele, 291 F.Supp.2d 1230, 1238

(D.Kan. 2003) (concluding that state hospital staff

members’ use of non deadly force to restrain a

mentally ill patient who hit another staff member

hard in the face was not constitutionally excessive).

1. Whether Defendants Unreasonably Created the

Need to Use Force

The plaintiff Estate first argues that the defen-

dants unreasonably and recklessly caused the need to

use deadly force against Mr. Herring when they

kicked in the door of his apartment within five

minutes of their arrival and sprayed him with mace

once inside the apartment, causing Herring. to

physically attack Officer Carroll. Plaintiff argues that

Herring did not threaten any of the officers, or

attempt to flee, before he was sprayed with mace and

that Herring was outnumbered by police officers

three to one.

An officer’s conduct before an individual threatens

force is relevant to the issue of whether the officer

reasonably believed he was in danger at the time he

used force, if the officer’s conduct was “immediately

connected” to the seizure and the threat of force.

Bella v. Chamberlain, 24 F.3d 1251, 1256 n.7 (10th

Cir. 1994) (Obviously, events immediately connected

28a

with the actual seizure are taken into account in

determining whether the seizure is reasonable”);

Sevier v. City of Lawrence, KS, 60 F.3d 695, 699 (10th

Cir. 1995) (stating that the reasonableness of the

defendants’ use of force “depends both on whether the

officers were in danger at the precise moment that

they used force and on whether Defendants’ own

reckless or deliberate conduct during the seizure

unreasonably created the need to use such force”);

Allen v. City of Muskogee, 119 F.3d 837, 840 (10th

Cir. 1997) (citing Sevier).

I have concluded that the individual defendants

are immunized from liability on the plaintiff Estate’s

claim that their warrantless entry of Mr. Herring’s

apartment violated Mr. Herring’s Fourth Amend-

ment rights. Accordingly, I limit my analysis of the

reasonableness of defendants’ pre-seizure conduct to

Officer Carroll’s use of pepper spray against the

decedent after entering Herring’s apartment.

The record shows that after Officers Carroll and

Ambuehl entered Mr. Herring’s apartment, at Officer

Darress’ instruction, and that Carroll walked to the

back bedroom where Herring had been standing at

the window throwing objects outside. It is undisputed

that Herring looked at Carroll and threw a broken

shelf and a bottle at Carroll. Because the officers’

testimeny about whether Herring also took a step

towards Carroll, and whether Carroll ordered him to

“stop” or “step back” is inconsistent, I construe the

evidence in plaintiffs’ favor and assume that Herring

did not move towards Carroll, and that Carroll did

not order Herring to stop, before Carroll deployed a

single burst of OC spray against him. (Carroll

Deposition, at 155-56) After Herring was sprayed, he

stated “we are all going to die,” and charged at

29a

Carroll, knocking him to the ground. The physical

brawl which resulted in Mr. Herring’s death ensued.

A police officer’s use of pepper spray is objectively

reasonable force where the recipient is resisting

arrest, refusing to comply with police requests, or

acting in a threatening or violent manner. See

Vinyard v. Wilson, 311 F.3d 1340, 1348 n.12 (11th

Cir. 2002) (collecting cases). In contrast, courts have

concluded that using pepper spray is constitutionally

excessive in cases where the individual is not ig-

noring police commands or instructions, is not acting

in a threatening or violent manner, or when the

arrestee surrenders or is secured, and has been

rendered helpless. Jd. n.11 (collecting cases).

Plaintiff Estate relies on the opinion of its police

procedures expert that defendants “had no knowledge

of the research on the use of OC against the mentally

ill, and the application in this incident escalated the

need for force.” (Plaintiffs Ex. H, at 7D.5) However,

the expert’s opinion does not discuss any research

studies or other pertinent authorities which have

concluded that the use of OC spray is contra

indicated for the mentally ill because it is likely to

provoke a violent response. Moreover, although

Carroll testified in his deposition that he recognized

that Mr. Herring might be mentally ill based

on his observations of Herring after he was inside the

apartment, but before he deployed the mace,” Car-

Carroll did not have any contact with Herring before the

forcible entry which occurred only five minutes after Carroll and

Ambuehl arrived at the scene. (Carroll Deposition, at 134)

Carroll testified in his deposition that he did not perceive that

Mr. Herring might be mentally ill until he was inside the

apartment and heard Herring make some irrational comments

about “God” and that they were all “going to die.” (Jd. at 161-62)

30a

roll also testified that he had not received any

training cautioning or prohibiting the use of mace

against persons who appear to be mentally ill.”

(Carroll Deposition, at 121) Carroll further testified

that he was trained generally to use OC spray as a

method to calm down an agitated or excited individ-

ual so that the individual could be taken into custody

without further incident. (Carroll Deposition, at 154)

There is no evidence in the record that the de-

fendants failed to comply with any Colorado Springs

Police Department procedures regarding the use of

mace generally. See Nelson v. County.of Wright, 162

F.3d 986, 991 (10th Cir. 1998) (recognizing that it

may be appropriate for district court to consider

whether the defendants complied with standard po-

lice procedures in analyzing an excessive force claim).

The material facts supporting plaintiffs excessive

force claim are undisputed, except for Officer Car-

roll’s internally inconsistent testimony relating to his

deployment of mace against Mr. Herring. I have

resolved that inconsistency in Mr. Herring’s favor, as

I am required to do when considering a motion for

summary judgment. See Thomas, 48 F.3d at 484. I

thus decide as a matter of law whether the officers’

actions were objectively reasonable. See Medina, 252

F.3d at 1131.

I find that the objective reasonableness of Officer

Carroll’s use of pepper spray against Mr. Herring is a

close question. The defendants did not enter Herr-

'' Defendants Darress and Ambuehl also testified in their

depositions that they had not been trained about possible

negative effects associated with the use of mace on the mentally

ill at the time of the incident. (Darress Deposition, at 63; Am-

buehl Deposition at 20-25)

3la

ing’s apartment to arrest him, but rather for the

stated purpose of “subduing” him” so that they could

get him medical attention. After a curs@ry search of

the apartment which revealed that no one else was

inside, defendants had no reasonable basis to believe

that Mr. Herring had harmed another person or

committed a crime, and the evidence construed in

plaintiffs favor shows that Herring did not disobey

any instructions or orders from the defendants before

the mace was deployed against him. However, Mr.

Herring did act aggressively toward Officer Carroll

by throwing objects at the defendant, including a

broken shelf. Although the objects did not actually hit

Carroll, Mr. Herring had demonstrated threatening

and violent behavior immediately before the officers’

arrival in ransacking and breaking out all the

windows in his apartment, and in engaging in

unknown actions which resulted in two lacerations

* Officer Darress stated in his affidavit in support of the

summary judgment motion that he ordered Officers Carroll and

Ambuehl to enter Herring’s apartment so that they could

“subdue Mr. Herring so that we could prevent Mr. Herring from

continuing to hurt himself, get Mr. Herring medical attention,

and prevent Mr. Herring from jumping out the broken window

and either injuring himself further or becoming a threat to

others.” (Darress Affidavit, at 915) However, Darress did not

convey his plan to the other officers. Officer Carroll testified

that he did not have any conversation with Darress before

entering the apartment, other than regarding the entry itself.

(Carroll Deposition, at 134-139) Officer Ambuehl testified that

Officer Darress did not explain to Ambuehl the basis for

Darress’ decision that they should enter the apartment. (Am-

buehl Deposition, at 87) Accordingly, it is not clear what Carroll

and Ambuehl intended to do with Herring once they were inside

his apartment and after they had determined that no one else

was present.

32a

and blood on Herring’s body as well as blood smeared

on walls throughout the apartment.

The facts in Riggs v. City of Pearland, 177 F.R.D.

395 (S.D.Tex. 1997) are somewhat similar. There, the

district court held that police officers’ use of mace

against an unarmed plaintiff was constitutional

where officers responded to a 911 call of a possible

disturbance at the plaintiffs apartment, officers ob-

served through the window that the plaintiff was

throwing himself around the room in his underwear

and had a laceration on the right side of his head,

officers entered the apartment and attempted to

subdue the plaintiff, and officers sprayed the plaintiff

with mace after plaintiff “crawled rapidly” towards

the officers. Id. at 408.

Moreover, the single, one-second burst of spray,

from a distance of three to four feet, appeared to have

no effect on Mr. Herring and there is no medical

evidence to the contrary. Although the lack of a |

physical injury does not preclude an excessive force

claim, see Holland ex rel. Overdorff v. Harrington,

268 F.3d 1179, 1195 (10th Cir. 2001), it is one factor

for the court to consider in the totality of the cir-

cumstances analysis. See Nelson, 162 F.3d at 990

(internal citation omitted).

I find and conclude that to the extent that Carroll’s

use of mace against Mr. Herring implicates the

Fourth Amendment,” the individual defendants are

" If the OC spray was deployed as part of the defendants’

efforts to effect a seizure of the decedent, the officer’s use of

force is analyzed under the Fourth Amendment. See Graham,

490 U.S. at 395. As discussed in note 12, supra, it is unclear

whether Officer Carroll intended to effect a seizure of Mr.

Herring when he entered the apartment. The plaintiff Estate

has also raised its excessive force allegations in the context of a

33a

entitled to qualified immunity on the plaintiff Es-

tate’s claim that the use of mace constituted unlawful

excessive force. Even if it was not objectively

reasonable for Officer Carroll to perceive Herring’s

actions in throwing a broken shelf and bottle at him

as a threat to the defendant’s safety so that the use of

pepper spray was unconstitutionally excessive, the

unlawfulness of Officer Carroll’s conduct was not

apparent in light of existing law. An individual’s

Fourth Amendment right to be free from excessive

force was clearly established in Graham; however,

the contours of that right were not sufficiently clear

that a reasonable police officer would know that

using mace against Mr. Herring under the circum-

stances Officer Carroll confronted violated that right.

Likewise, there is no clearly established law holding

that the use of mace on persons who appear to be

mentally unstable is per se excessive force.

Because defendants are immune from liability on

the plaintiff Estate’s claim that Officer Carroll used

excessive force against Mr. Herring when he deployed

a singlé burst of mace against Mr. Herring, I cannot

consider the use of mace as conduct that unrea-

sonably created the need to use force against the

plaintiff in the physical struggle between Herring

and the defendants that followed. Accordingly, the

three Tenth Circuit cases upon which plaintiff pri-

marily relies in support of his claim are inapposite.”

substantive due process claim. Accordingly, in the event that

the deployment of mace was conduct unrelated to defendants’

efforts to seize Mr. Herring, I analyze it separately under the

Fourteenth Amendment Substantive Due Process Clause in

Section III.D., supra.

‘In Sevier and Allen, the Tenth Circuit held that summary

judgment was inappropriate on the plaintiffs’ excessive force

claims where police officers responded to 911 calls reporting

34a

armed and possibly suicidal individuals, the officers immedi-

ately confronted the armed suicidal persons without considering

other non-confrontational options, and the confrontations ulti-

mately resulted in the police shooting deaths of the individ-

uals. Sevier, 60 F.3d at 698-699; Allen, 119 F.3d at 839-841. In

both cases, the Tenth Circuit held that if the plaintiffs version

of the facts was believed, the officers’ conduct could be construed

by the jury as reckless or deliberate conduct that unreasonably

created the need for the officers to use deadly force. Sevier, 60

F.3d at 701 n.10; Allen, 119 F.3d at 841.

Plaintiff relies on Myers to show how police officers should act

in encounters with the mentally ill. In Myers, the Tenth Circuit

held that police officers’ entry into an armed suicidal person’s

apartment did not unreasonably create the need to use deadly

force against that person because the officers had spent hours

attempting to resolve the situation through communications

with the individual and had ultimately secured a court order

authorizing them to take the decedent into protective custody.

151 F.3d at 1320. ;

As discussed in the text above, the individual defendants

cannot be held personally liable for unreasonably creating the

need for the officers to use deadly force against Mr. Herring

based on their actions in entering his apartment without a

warrant and in spraying him with mace because I have con-

cluded that defendants are entitled to qualified immunity.

However, even if I did consider the merits of the plaintiff

Estate’s claim that the warrantless entry and use of mace

unreasonably created the need to use physical force against the

decedent, I note that the evidence does not show that the

defendants acted recklessly. Unlike the factual circumstances in

Sevier, Allen, and Myers, Mr. Herring was not armed with a

deadly weapon. A reasonable jury could not conclude from the

evidence of record that the officers acted with a reckless dis-

regard for Mr. Herring’s or their own safety when they entered

his apartment and sprayed him with mace. There is no evidence

in the record that the defendants had any knowledge that the

use of mace against an unarmed mentally ill person is likely to

result in a potentially deadly physical confrontation, and such a

risk is not patently obvious. The Tenth Circuit has made clear

that “in order to constitute excessive force, the conduct arguably

35a

2. Defendants’ Use of Physical Force

The plaintiff Estate next argues that defendants’

use of deadly force against Mr. Herring in their

efforts to restrain him after spraying him with mace

was unreasonable. Plaintiff emphasizes that Herring

was lying face down on the floor with officers on top

of him when Officer Darress exerted the force against

Herring that allegedly caused Herring’s death.

Defendants do not rebut the report of plaintiffs’

expert pathologist, Linda Norton, M.D., P.A. Dr.

Norton opines that Mr. Herring’s death was caused

by Officer’s Darress’ application of pressure to Mr.

Herring’s neck, causing his trachea to collapse and

thereby blocking his airway. Defendants argue,

however, that “[t]he Officers at no time resorted to

deadly force.” (Brief in Support of Motion for Sum-

mary Judgment, at 24)

The Tenth Circuit has adopted the Model Penal

Code’s definition of “deadly force.” See Jiron v. City of

Lakewood, 392 F.3d 410, 415 n.2 (10th Cir. 2004)

(citing Ryder v. City of Topeka, 814 F.2d 1412, 1416

n. 11 (10th Cir.1987)). The Model Penal Code defines

“deadly force” as: “force that the actor uses with the

purpose of causing or that he knows to create a

substantial risk of causing death or serious bodily

harm.” Model Penal Code § 3.11(2) (1985).

There is no evidence that Darress applied pressure

to Herring’s neck for the purpose of causing Herring’s

death; however, Darress testified in his deposition

that he knows that contact with a suspect’s neck can

creating the need for force must be immediately connected with

the seizure and must rise to the level of recklessness, rather

than negligence.” Medina, 252 F.3d at 1132.

36a

cause severe injury or even death and may constitute

deadly force in certain situations. (Darress Deposi-

tion, at 63) I find that Darress’s application of pres-

sure to Herring’s neck created a substantial risk of

causing death or serious bodily harm and therefore

constituted the use of deadly force.

A police officer may use deadly force against an

individual if the officer has probable cause to believe

that the individual poses a threat of serious physical

harm either to the officer or to others. Tennessee v.

Garner, 471 U.S. 1, 11 (1985); Sevier, 60 F.3d at 699

(citing Garner); Carr v. Castle, 337 F.3d 1221, 1227

(10th Cir. 2003).

An individual may pose a threat of serious physical

harm to police officers even if he does not possess a

firearm, knife, or other deadly weapon. In Ryder, the

Tenth Circuit held:

Certainly, whether a suspect is armed is a rele-

vant factor in determining whether the suspect

poses an immediate danger. A per se rule, how-

ever, that a police officer may never employ

deadly force unless attacked by a suspect pos-

sessing a deadly weapon would place a police

officer in a dangerous and unreasonable situ-

ation. Therefore, we conclude that whether a

particular seizure is reasonable is dependent

on the “totality of the circumstances,” [internal

citation omitted], and not simply on whether the

suspect was actually armed. [internal citation

omitted].

814 F.2d at 1419 n.16; see, also, Nelson, 162 F.3d at

990-91 (concluding that officer’s use of deadly force

against unarmed suicidal person was not constitu-

tionally excessive where individual resisted officer’s

37a

efforts to handcuff him and during ensuing struggle,

reached for the officer's gun, hit and kicked the

officer repeatedly, and shoved officer onto the floor

into a closet).

The evidence shows that during the physical

struggle leading up to Officer Darress’ application of

pressure to Mr. Herring’s neck, Herring pulled

Officer Darress’ baton out of its holster during the

struggle and also grabbed Officer Carroll’s firearm

holster twice, which caused Carroll to believe that

Herring was going for his gun. Herring also squeezed

the testicles of two officers during the fight and bit

two officers-one on the hand and one on the leg. The

officers responded to Herring’s actions by hitting him

in the head and body with their fists and using one of

their batons in a flat chop maneuver. The officers

also tried unsuccessfully to restrain Herring’s arms

and legs with the baton. After Officer Darress called

for medical assistance to help subdue Herring,

Herring continued to fight and lifted Officers Carroll

and Darress, who were positioned on either side of

Herring (and who must have been partially lying on

the decedent), up off the floor. Knowing that the

maneuver was deadly force, Officer Darress pressed

his thumb into a pressure point on the side of

Herring’s neck to get Herring to stop fighting them.

Darress believed that the pressure application had no

effect because Herring continued to struggle. Darress

was finally able to handcuff both of Herring’s hands

in front of him and again called for medical personnel

to assist them. Herring then pushed himself off the

floor onto his forearms while Darress was on his

back. Darress, believing that he and the other officers

would not be able to contain Herring if he was able to

get to his feet, pushed Herring back down to the floor,

using his arms and upper body in a “jumping mo-

38a

tion.” At that point, the paramedics came into the

apartment and administered medication to Herring.

Herring slowly began to calm down and the defen-

dants exited the apartment while the paramedics

attended to Mr. Herring.

An officer’s use of deadly force is reasonable where

the person seized makes an attempt to get the

officer’s gun. See Blossom v. Yarbrough, 429 F.3d

963, 968 (10th Cir. 2005); Nelson, 162 F.3d at 990-91.

Here, there is no evidence that Officer Darress knew

that Mr. Herring had twice attempted to grab Officer

Carroll’s gun when Darress applied deadly force to

Herring. Moreover, although Herring was able to

grab Darress’ baton, Darress regained control of the

baton before Herring was able to use it to inflict any

injury. Further, Herring was outnumbered by police

officers three to one, was not suspected of committing

any crime, and was not armed. Although Mr. Herring

was wet and naked and was demonstrating superior

strength so that the defendants were having dif-

ficulty subduing him, the evidence does not establish

as a matter of law that Herring’s actions in biting

and squeezing the testicles of the officers, and in

grabbing Officer Darress’ baton, gave Officer Darress

probable cause to believe that Herring posed a threat

of serious physical harm to the officers sufficient to

justify the use of deadly force against him. On this

record, therefore, I cannot conclude that Officer

Darress’ use of deadly force was objectively reason-

able under the Fourth Amendment, nor can I con-

clude that defendant Darress is entitled to qualified

immunity because the law was clearly established in

Tennessee v. Garner, Graham and Sevier that a police

officer may not use deadly force against an individual

unless the officer has probable cause to believe that

the individual poses a threat of serious physical harm

39a

either to the officer or to others. The contours of Mr.

Herring’s right to be free from police use of deadly

force were sufficiently clear that a reasonable police

officer in the circumstances confronted by Darress,

who knew that application of pressure to an

individual’s neck could result in death, would have

known that his conduct was unlawful. Stated other-

wise, defendant Darress did not make a reasonable

mistake as to what the law requires because the

circumstances “do not disclose substantial grounds

for (Darress] to have concluded he had legitimate

justification under the law for acting as he did.”

Harrington, 268 F:3d at 1197 (citing and quoting

Saucier, 533 U.S. at 207-08). Defendants’ motion for

summary judgment on the excessive force claim is

denied as to defendant Darress.

I grant summary judgment in favor of defendants

Carroll and Ambuehl on the Plaintiff Estate’s ex-

cessive force claim, however. Officer Ambuehl’s use of

force was limited to attempts to restrain Herring’s

legs with his hands and baton. Officer Carroll’s

actions in hitting Herring on the back and shoulder

in response to Herring’s actions in squeezing his

testicles, in biting him and in using his baton to

attempt to restrain Herring’s arms were objectively

reasonable under the circumstances. There is no

evidence that any of the force used by Carroll or

Ambuehl was a cause of Mr. Herring’s death.

C. Constitutional Claim against City for Failure to

Train

Plaintiff Estate sues the City of Colorado Springs

under §1983 for not adequately training its police

officers in appropriate methods of interacting with

40a

mentally ill individuals,” including the use of force,

restraint, and chemical sprays as applied to mentally

ill individuals. Plaintiff does not allege any deficiency

in the City’s officer training on the use of force

regarding persons who are not mentally ill.

A municipality or other local government cannot be

held liable under §1983 unless a municipal policy or

custom was the “moving force” behind a constitu-

tional violation. Bd. of Cnty. Commis v. Brown, 520

U.S. 397, 404 (1997); Monell v. Dep’t of Social

Services, 436 U.S. 658, 694 (1978). Inadequate police

training can be the basis of §1983 liability only if the

failure to train amounts to deliberate indifference to

the constitutional or statutory rights of persons with

whom the police come into contact. City of Canton v.

Harris, 489 U.S. 378, 388 (1989); Brown, 520 U.S.

at 411. Even if inadequate training is demonstrated,

the lack of proper training must actually cause the

plaintiffs injury to be actionable under §1983. City of

. Canton, 489 U.S. at 391.

To establish municipal liability under §1983 for in-

adequate training of police officers, a plaintiff must

show that officer training was in fact inadequate and

then satisfy the following requirements: (1) the offi-

cers violated the Constitution; (2) the constitutional

violation arose under circumstances that constitute a

usual and recurring situation with which police

officers must deal; (3) the inadequate training dem-

onstrates a deliberate indifference on the part of the

city toward persons with whom the police officers

* Although there is no evidence in the record that Mr.

Herring had a history of mental illness, after they responded to

his apartment, defendants recognized that Mr. Herring was

acting in a manner consistent with that of a mehtally ill person.

(Darress Deposition, at 87-88; Carroll Deposition, at 161-62).

4la

come into contact; and (4) there is a direct causal link

between the constitutional deprivation and the in-

adequate training. Allen, 119 F.3d at 841 (internal

citation omitted); Carr, 337 F.3d at 1228. “Evidence

of a single violation of federal rights, accompanied by

a showing that a municipality has failed to train its

employees to handle recurring situations presenting

an obvious potential for such a violation, is sufficient

to trigger municipal liability.” Allen, 119 F.3d at 842

(internal citation omitted).

I initially find that the Plaintiff Estate has met its

burden on summary judgment to demonstrate the

existence of material factual issues about the ade-

quacy of the training defendants received with re-

spect to police interactions with the mentally ill. The

record reflects that defendants received some train-

ing in dealing with mentally ill persons; however,

none of the defendants had any specific recollection of

the content of that training. (Darress Deposition, at

22-26; Carroll Deposition, at 33; Ambuehl Deposition,

at 20-22) Chief Velez testified that, at the time of Mr.

Herring’s death, the Colorado Springs Police Depart-

ment had written policies and procedures relating to

officer interaction with the mentally ill, but he too

could not recall the content of those policies. (Deposi-

tion of Colorado Springs Police Chief Luis Velez, at

135) The court’s record does not contain any written

policies or procedures directed to police officer contact

with individuals who appear to be mentally dis-

turbed. The only evidence about the content of the

City’s policies is in Officer Ambuehl’s deposition tes-

timony, discussed in Section III.A., supra, about some

written guidelines he received in police academy

training.

42a

Moving on to the other requirements for municipal

liability, I will assume, under the first factor, that

defendants violated Mr. Herring’s Fourth Amend-

ment rights when they entered his apartment with-

out a warrant and sprayed him with mace based on

my conclusions in Sections III.A. and III.B.1, supra,

that the defendants are entitled to qualified immu-

nity under the clearly established law prong of the

inquiry, even if their conduct violated the Constitu-

tion.” In addition, genuine issues of material fact

remain about whether defendant Darress’ application

of pressure to Mr. Herring’s neck was lawful under

the Fourth Amendment.

Plaintiff Estate also has satisfied its burden on

summary judgment under the second factor because

the evidence shows that it is common for Colorado

Springs police officers to have encounters with

mentally ill or emotionally disturbed people. (Velez

Deposition, at 66-67; Darress Deposition, 29; Carroll

Deposition, at 25).

The third and fourth factors are a closer question.

A plaintiff may establish the deliberate indifference

Generally, a City cannot be held liable where there is no

underlying constitutional violation by one of its officers or em-

ployees. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986);

Myers, 151 F.3d at 1317 (recognizing that plaintiffs’ failure to

train claims against the City required a predicate showing that

the officers used excessive force against the plaintiff). An

exception arises, however, when the court or jury finds that

even if the officer committed a constitutional violation, he is

nonetheless entitled to qualified immunity because his conduct

did not violate clearly established law. Myers, 151 F.3d at 1317.

In such cases, the claim against the City can proceed because

municipalities do not enjoy the same immunity from liability.

Id.

43a

element of a municipal policy in accordance with the

Supreme Court’s following reasoning in Canton.

It may seem contrary to common sense to assert

that a municipality will actually have a policy of

not taking reasonable steps to train its employ-

ees. But it may happen that in light of the duties

assigned to specific officers or employees the

need for more or different training is so obvious,

and the inadequacy so likely to result in the

violation of constitutional rights, that the policy-

makers of the city can reasonably be said to have

been deliberately indifferent to the need. In that

event, the failure to provide proper training may

fairly be said to represent a policy for which the

city is responsible, and for which the city may be

held liable if it actually causes injury.

Canton, 489 U.S. at 390. In Brown, the Supreme

Court further explained its holding in Canton:

(I]n a narrow range of circumstances, a violation

of federal rights may be a highly predictable

consequence of a failure to equip law enforce-

ment officers with specific tools to handle recur-

ring situations. The likelihood that the situation

will recur and the predictability that an officer

lacking specific tools to handle the situation will -

violate citizens’ rights could justify a finding

that policymakers’ decision not to train the

officer reflected ‘deliberate indifference’ to the ob-

vious consequences of the policymakers’ choice—

namely, a violation of a specific constitutional or

statutory right.

Brown, 520 U.S. at 409.

It is not enough to show “that an injury or accident

could have been avoided if an officer had better or

44a

more training, sufficient to avoid the particular

injury-causing conduct.” See Canton, 489 U.S. at 391.

Instead, the plaintiffs evidence must demonstrate

that the lack of adequate training reflects deliberate

indifference to the risk that a violation of a particular

constitutional or statutory right will follow the deci-

sion not to train. Brown, 520 US. at 411.

Plaintiff Estate relies heavily on its police policies

expert who opines:

Darress, along with Officers Carroll and Am-

buehl, did not activate to respond to Herring’s

condition or activity in any manner consistent

with the police recognized standard of care for

either recognizing, approaching, responding to or

communicating with a mentally ill or emotionally

disturbed person—especially one situated like

Herring, who was in his apartment, alone, and

not threatening anyone while experiencing this

episode.

While the officers later acknowledge in their

depositions that they accept there are factors

that were exhibited by Herring that would have

led to the conclusion he was mentally ill, and

that there are practices that suggest a proper

response, there was not a hint of their imple-

menting this response. Likely, the reason was a

lack of training provided by the CSPD for contact

with this special population. Admittedly, there

was some training in their basic training pro-

gram on the police response to the mentally ill,

[sic] the time spent and amount of training

fell far short of the recognized standard of care

for digesting the basics of response to the

emotionally disturbed. The training was of such

a minuscule amount for such a likely encounter

45a

by a police officers that the amount of training

simply reached a level of deliberate indifference

because of the significance of the potential con-

tact with people who are mentally ill, and emo-

tionally disturbed. The officers indicated that

hundreds of such contacts have been made with

this special population by the CSPD in the last

five years. Such a core responsibility must be

met with a concomitant training curriculum so

that officers will immediately recognize, ap-

proach, and contact the mentally ill within

guidelines that are tried and proven for high

success of a resolution without death or serious

injury—an outcome that differed 180 degrees

from this incident.

(Plaintiffs’ Ex. H, Katsaris Affidavit, at 49D.3, 4)

Plaintiffs’ expert then opines that if the defendants

had been properly trained to recognize the Herring

situation as one potentially involving a mental health

issue, they would have established a perimeter

around Mr. Herring’s apartment, called a supervisor

for assistance with assessment, and communicated

with Herring for as long as necessary to try to calm

him down, instead of immediately breaking in the

door of Herring’s apartment which caused Herring to

feel threatened, and then spraying him with mace,

which escalated the need for force. Jd. at 1D.5, 6.

The Tenth Circuit’s most recent pronouncements

on what evidence a plaintiff must produce to satisfy

the third and fourth elements for municipal liability

under §1983 are set forth in Allen, Brown v. Gray,

227 F.3d 1278 (10th Cir. 2000), Carr v. Castle, and

Olsen v. Layton Hills Mall, 312 F.3d 1304 (10th

Cir. 2002).

46a

In Allen v. Muskogee, Okla., the Tenth Circuit

reversed the district court’s order granting summary

judgment to police officers and the municipality in an

excessive force case. The court first concluded that a

police officer may have recklessly and unreasonably

created the need to use deadly force against an armed

and suicidal individual based on evidence that the

officer ran up to the individual’s truck, shouted at

him to get out, and attempted to seize the individ-

ual’s gun, and the individual responded by pointing

his gun at police officers, causing the officers to shoot

him dead. 119 F.3d at 839, 841. The Tenth Circuit

also reversed the grant of summary judgment in

favor of the municipality on the plaintiffs failure to

train claim. The court concluded that the munic-

ipality had demonstrated deliberate indifference to

the rights of persons with whom the police come in

contact by affirmatively training its police officers to

leave cover and approach armed suicidal persons to

try to disarm them, where the plaintiffs expert

testified at length that such training was contrary to

all authorities on police tactics and procedures who

were in agreement that it is inappropriate to leave

cover and approach a suicidal and armed individual

person to attempt to take a gun away. Id. at 842-43.

The court stated:

When viewed in light most favorable to the

plaintiff, the record contains evidence that the

officers were tra:med to act recklessly in a man-

ner that created a high risk of death. The evi-

dence is sufficient to support an inference that

the need for different training was so obvious

and the inadequacy so likely to result in violation

of constitutional rights that the policymakers of

47a

the City could reasonably be said to have been

deliberately indifferent to the need.

Id. at 844. The court in Allen, also held, under the

fourth factor, that there was a direct causal link

between the affirmative training the officers received .

and the constitutional violation based on expert

evidence that approaching an armed, emotionally

disturbed person and trying to get his gun recklessly

created a high risk of death for officers, the armed -

individual and other civilians. Jd. at 844.

Unlike the circumstances in Allen, there is no

evidence here that the City actually trained its police

officers to act in a manner contrary to recognized

police procedures when interacting with the mentally

ill, nor is there any evidence that defendants were

trained to effect warrantless entries of individual’s

homes in the absence of exigent circumstances,” or to

use objectively unreasonable force against persons

with whom they come in contact. The only evidence

on this point is Carroll’s testimony that he was

trained to use mace as a method of subduing an ag-

gressive person and that he did not receive training

specifically about the use of mace on someone

exhibiting signs of mental illness. However, there is

no evidence that the City made a conscious decision

tc instruct officers to use mace on the mentally ill.

Instead, the City failed to caution officers about the

potential adverse effects of mace on the mentally ill.

And, although plaintiffs expert states that defen-

dants ignored the research on the use of mace with

" Chief of Police Velez testified that police officers are trained

to enter an individual’s home without a warrant only when

exigent circumstances are present. (Velez Deposition, at 119-20)

48a

mentally ill people, he does not opine that the use of

mace presents serious safety risks.

In Brown v. Gray, 227 F.3d 1278 (10th Cir. 2000),

the Tenth Circuit affirmed the district court’s denial

of summary judgment on the plaintiffs failure to

train claim against the City and County of Denver

based on an incident when an off-duty police officer

pulled over a motorist after they became involved in a

traffic dispute. Jd. at 1284. According to the plaintiff,

the officer approached the plaintiffs vehicle and

pointed his gun in plaintiffs face; plaintiff responded

by putting his hands up and stating “what the hell do

you want? I don’t have a damn thing;” and then

plaintiff put his vehicle into gear and started to drive

away, at which point the officer fired several shots

into the car, badly injuring the plaintiff. Jd. Plaintiff

claimed that Denver’s training with respect to its

always armed/always on duty policy was inadequate.

Id. at 1286. The Tenth Circuit agreed, holding that

the City’s policy was inadequate and that the inade-

quacy demonstrated Denver’s deliberate indifference,

as determined from the testimony of a police policy

expert, a police captain, and the defendant police

officer. Id. at 1290. Plaintiffs police policy expert

testified that the always armed/always on duty policy

presented serious safety risks and that if a police

department adopted such a policy, it must train its

officers on how to take police action in the different

circumstances presented when the officers are off-

shift because it was foreseeable that the lack of

training would create a dangerous situation in which

a shooting would occur. Jd. at 1287, 1290. The police

department captain testified that the department

made a conscious decision not to distinguish between

off-duty and on-duty scenarios in the training pro-

gram because they are considered to be the same. Jd.

49a

at, 1287, 1289. The captain acknowledged, however,

that implementation of the policy had proved to be

fatal for some officers. Jd. at 1289. The defendant

police officer testified that he felt ill-equipped to

handle the encounter with the plaintiff because he

did not have his uniform, patrol car, or radio and had

not received any training in handling such a situa-

tion when he was off duty. Jd. Under the fourth

factor, the Tenth Circuit found that there was a

direct causal link between the use of excessive force

against the plaintiff and the inadequate training

based on the police officer’s testimony that he was

attempting to make a lawful arrest pursuant to the

always armed/always on duty policy when he shot the

plaintiff. Jd. at 1291.

Unlike the circumstances in Brown, there is no

specific evidence here demonstrating that the City

made a conscious decision to train police officers to

respond to calls involving mentally ill persons in the

same manner as they would respond to calls involv-

ing suspected criminal activity, which, according to

plaintiffs expert, would be contrary to recognized

police procedures. (Plaintiffs’ Ex. H, at 19D.4-6); see,

also, Deorle v. Rutherford, 272 F.3d 1272, 1282-83

(9th Cir. 2001) (stating that the tactics employed

against “an unarmed emotionally distraught individ-

ual who is creating a disturbance” are ordinarily

different from those involved in police efforts “to sub-

due an armed and dangerous criminal” and recog-

nizing that increasing the use of force in the former

instance may exacerbate the situation); Michael

Avery, “Unreasonable Seizures of Unreasonable Peo-

ple: Defining the Totality of Circumstances Relevant

to Assessing the Police Use of Force Against Emo-

tionally Disturbed People,” 34 Colum. Hum. Rts. Law

Rev. 261 (Spring 2003) (discussion of criminal justice

50a

authorities recognizing that police should not engage

in threatening behavior with an emotionally dis-

turbed person because fear of the police is likely to

trigger a violent or aggressive response).

In Carr-v. Castle, the Tenth Circuit rejected the

plaintiffs claim that the City’s inadequate training in

the use of excessive force constituted deliberate in-

difference to the rights of others and caused the

death of Mr. Carr. Police officers shot Mr. Carr

multiple times in the back after Mr. Carr threw some

pieces of concrete at them that barely grazed one of

the officers. The Tenth Circuit found that the plain-

tiff did not provide any evidence that the City made a

deliberate choice regarding any training; instead, the

plaintiff merely enumerated the many ways in which

he contended the training was inadequate. 337 F.3d

at 1229. The court distinguished Allen and Brown on

the ground that those cases involved deliberate

training choices that were likely to lead to a con-

stitutional violation whereas in Carr, the plaintiff

relied on the absence of specific training that could

have helped the officers during their encounter with

the plaintiff. Jd. at 1229-30. The court also found that

plaintiff had failed to satisfy the causation element

for municipal liability because none of the alleged

inadequacies in police training led directly to the use

of excessive force against the decedent. Jd. at 1231.

The Tenth Circuit reasoned that the plaintiffs failure

to show that police officers were actually trained to

do the wrong thing was fatal to the plaintiffs ability

to establish causation for municipal liability. Jd. at

1231-32. The court further concluded that even if

some inadequacy in training had been shown, the

officers were not trained by the municipality to shoot

a suspect in the back after he no longer posed a

threat. Jd. at 1232.

5la

The Carr decision thus appears to foreclose any

basis for municipal liability under §1983 on a failure

to train theory unless the plaintiff can show that

police officers were specifically trained to act in a

manner contrary to recognized police procedures and

where such training is substantially likely to result

in a constitutional violation.”

In Olsen, the Tenth Circuit reversed the district

court’s order granting summary judgment to Davis

County on the plaintiffs failure to train claim.

The failure to train claim arose from a single incident

where the plaintiff-arrestee, who suffered -from

obsessive-compulsive disorder (“OCD”), had a panic

attack en route to the jail. 312 F.3d at 1310. After

arriving at the jail, plaintiff indicated on a medical

pre-screening sheet, and told the pre-booking officers,

that he had OCD and required medication to ward off

panic attacks. Jd. The pre-booking officers errone-

ously noted on the prescreening sheet that plaintiff

had “CDC”, took plaintiffs medication away from

him, and insisted that he remove his shoes and socks,

pursuant to standard search procedures. /d. Plaintiff

complied, but suffered another panic attack based on

a fear of contamination from the dirty floor. Jd. Davis

County did not provide any training for handling

individuals diagnosed with OCD. Id. Instead, while

the County’s booking procedures required screening

arrestees for undefined mental illnesses or psychia-

tric disorders, the County allowed “health trained

correctional deputies” to use their discretion in

dealing with mental disorders. Jd. Plaintiff claimed

that Davis County failed to train the jail’s pre-

* I note, however, that the Carr court did not discuss or dis-

tinguish Olsen v. Layton Hills Mall, another Tenth Circuit deci-

sion which was decided after Allen and Brown.

52a

booking officers to recognize OCD and to handle

individuals with OCD appropriately. Jd. at 1319.

The Olsen court held that evidence that the pre-

booking officers received no training on OCD, that

OCD occurs in more than two percent of the popula-

tion; and the “pre-booking officers’ apparent igno-

rance to [plaintiffs] requests for medication,” sug-

gested that a violation of federal rights was a “plainly

obvious” consequence of the County’s failure to train

and was sufficient to demonstrate the existence of a

material factual issue about whether the County was

deliberately indifferent because of its failure to train

pre-booking officers about people with OCD. Id. at

1320 (internal quotations omitted). The court rea-

soned that the evidence that OCD is relatively

common and that the County had procedures in place

for dealing with inmates with psychiatric disorders

“suggest[s] that the municipality may have had con-

structive notice of the illness’ prevalence and conse-

quences.” Id. at 1320. The court also found that

genuine issues of material fact existed about whether

the County’s inadequate training caused plaintiff to

suffer another panic attack during the pre-booking

process. Jd. at 1320.

In light of Olsen, plaintiff's evidence here indicates

that police training on officer interactions with the

mentally ill was inadequate; that police contact with

the mentally ill is a usual and recurring situation;

and, the expert’s testimony shows that the failure to

provide adequate training is likely to result in situa-

tions where officers perceive a need to use force

against mentally ill persons which can result in

injury or death. Further, Chief Velez’s testimony that

the City has adopted policies for dealing with the

mentally ill, and that officers who do not receive

53a

appropriate training regarding contact with “persons

with disabilities” may cause harm to such persons

(Velez Deposition, at 66-67, 135) is evidence that the

City had constructive notice that the alleged failure

to train was likely to result in a constitutional viola-

tion. This evidence is arguably sufficient under

Olsen, although not under Carr, to support a finding

that the lack of adequate training in police officer

interactions with the mentally ill reflects deliberate

indifference to an obvious risk that violation of men-

tally ill individuals’ Fourth Amendment rights will

occur.

Even if the plaintiff Estate has met its evidentiary

burden under the first three elements of municipal

liability under §1983, however, its failure to train

claim founders on the fourth element. Defendant

Darress testified in his deposition that the City did

not train him to use the pressure technique that he

applied to Mr. Herring’s neck that resulted in Mr.

Herring’s death. (Darress Deposition, at 63) Accord-

ingly, although Darress may not have been trained to

know exactly how to react to an emotionally dis-

turbed individual in the circumstances Darress

confronted, the evidence establishes that Darress was

not trained by the City to apply the technique that,

according to plaintiffs’ expert, caused Mr. Herring’s

death.” See, Carr, 337 F.3d at 1232. Moreover,

although Officer Carroll’s act in spraying Mr. Herring

with mace created the need for defendants to use

* Darress also testified that he did not receive any training

about different methods of contacting a “suspect’s” neck that

may cause a risk of serious injury or death. However, the plain-

tiff Estate does not claim that the City’s training program on

the use of force generally is inadequate, and the evidence of

record is insufficient to support such an inference.

54a

force against Mr. Herring, Officer Darress’ applica-

tion of thumb pressure to Mr. Herring’s neck was the

intervening act that caused Mr. Herring’s death. See

Olsen, 312 F.3d at 1318 (recognizing that causation

element for municipal liability in a failure to train

claim asks: “{ivjould the injury have been avoided

had the employee been trained under a program that

was not deficient in the identified respect?”) (quoting

City of Canton, 489 U.S. at 391).

Accordingly, the City of Colorado Springs is en-

titled to summary judgment on the Plaintiffs Es-

tate’s claim of inadequate police training.

D. Substantive Due Process claim

The plaintiff Estate’s final claim is that the de-

fendants deprived Mr. Herring of his life without

substantive due process. Plaintiff alleges that defen-

dants’ actions in causing the need to use force, which

turned deadly, against an unarmed man who was

alone inside his apartment, communicating with

Officer Darress, and who posed no threat to the police

until they kicked in his door, was shocking to the

conscience.

Plaintiff cannot, however, maintain a due process

claim based on the same facts that support the

excessive force claim. In Graham, 490 U.S. at 395,

the Supreme Court held that “all 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 ‘reasonable-

ness’ standard, rather than under a ‘substantive due

process’ approach.” (Emphases in original)).

As discussed in footnote 12, supra, to the extent

that Officer Carroll’s use of OC spray against Mr.

55a

Herring was unrelated to police efforts to accomplish

a “seizure” of the decedent, that claim is not ac-

tionable under the Fourth Amendment, but may be

analyzed under the substantive due process clause.

See Harrington, 268 F.3d at 1191 (internal citations

omitted)

To prove a violation of Mr. Herring’s Fourteenth

Arnendment substantive due process rights, the

Estate must establish that Officer Carroll’s conduct

was “conscious-shocking.” County of Sacramento v.

Lewis, 523 U.S. 833, 846-848 (1998). I find, as a

matter of law, that defendant Carroll’s deployment of

a single burst of mace against Mr. Herring, at a

distance of three to four feet, does not rise to the level

of conscious shocking conduct necessary to trigger

substantive due process protections. Moreover, there

is no evidence that Mr. Herring suffered any injury

as a result, and mace has not been shown to perma-

nently harm the recipient. See McCormich v. City

of Ft. Lauderdale, 333 F.3d 1234, 1245 (11th Cir.

2003) (citations omitted).

Accordingly, I grant summary judgment in favor of

the defendants on the plaintiff Estate’s Fourteenth

Amendment substantive due process claim.

E. Deprivation of Familial Association

Mr. Herring’s three minor children claim that the

defendant police officers deprived them of their

constitutional right to familial association by causing

Herring’s death.

Children enjoy a right of familial association with

their parents which is included in the substantive

due process right of freedom of intimate association,

and which is “consonant with the right of privacy.”

J.B. v. Washington Cnty, 127 F.3d 919, 927 (10th Cir.

56a

1997) (internal quotations and citation omitted). To

establish a deprivation of their constitutional right to

familial association, the plaintiffs must show that the

defendant officers intended to interfere with the

children’s relationship with Mr. Herring at the time

the officers caused his death. Trujillo v. Bd. of Cnty.

Comm’s of Santa Fe Cnty., 768 F.2d 1186, 1190 (10th

Cir. 1985). In other words, the defendants’ conduct

must have been directed at the children’s relation-

ship with their father, with knowledge that the

conduct would adversely affect that relationship. /d.;

J.B., 127 F.3d at 927.

Plaintiff children concede that they are unable to

show that the defendants intended to interfere with

their relationship with their father when the defen-

dants used force against Mr. Herring. Plaintiffs

argue, however, that Tenth Circuit law should be

extended to allow for liability based on reckless con-

duct. Plaintiffs maintain that all defendants knew

that Mr. Herring had children and that the appli-

cation of force against Mr. Herring in any disabling

manner would impact those children.

Chief Judge Babcock rejected the same argument

in Hill v. Martinez, 87 F.Supp.2d 1115, 1119 (D.Colo.

2000). In Hill, the court noted that although the

Tenth Circuit has determined since Trujillo that

some §1983 claims can be based on reckless behavior

by state actors, see, e.g. Archuleta v. McShan, 897

F.2d 495, 499 (10th Cir. 1990)(assuming that reckless

conduct could form the basis for a due process

violation under §1983), the Tenth Circuit reaffirmed

in J.B., 127 F.3d at 927, that plaintiffs in a familial

association case must show that a state actor “di-

rected” his or her challenged conduct or statement “at

the intimate relationship with knowledge that the

57a

statements or conduct will adversely affect that rela-

‘ tionship” (internal quotations and citation omitted).

Hill, 87 F.Supp.2d at 1119. Chief Judge Babcock

found the language in J.B. “to maintain Trujillo’s

intent requirement.” Jd. I find Chief Judge Babcock’s

decision in Hill persuasive.

Moreover, in Christianson v. City of Tulsa, 332

F.3d 1270, 1284 (10th Cir. 2003), the Tenth Circuit

dismissed the plaintiffs’ familial association claim

because plaintiffs had failed to allege “an intent to

interfere with a particular relationship protected by

the freedom of intimate association,” as required by

Trujillo.

Because the Tenth Circuit has not expressly or

impliedly held that deprivation of the constitutional

right to familial association may be based on reckless

conduct, I am bound by the holding in Trujillo. The

minor plaintiffs’ claim is dismissed.

IV.

For the reasons set forth herein, it is

HEREBY ORDERED that Defendants’ Motion

for Summary Judgment [filed August 1, 2005) is

GRANTED in substantial part and DENIED in part

as follows:

(1) Plaintiff Estate’s §1983 claims of unlawful

warrantless entry, unconstitutional use of mace,

deprivation of substantive due process, and de-

privation of constitutional right to familial asso-

ciation against the individual defendants are

DISMISSED in their entirety;

(2) Plaintiff Estate’s §1983 claim against the

City of Colorado Springs for inadequately train-

ing its police officers is DISMISSED;

58a

(3) Plaintiff Estate’s §1983 excessive force

claim, which is based on the physical struggle

between Mr. Herring and the police officers

that resulted in Herring’s death, is DISMISSED

against defendants Carroll and Ambuehl only;

(4) Defendants’ summary judgment motion is

DENIED as to the plaintiff Estate’s excessive

force claim against defendant Darress which is

based on Darress’ application of pressure to Mr.

Herring’s neck during the physical struggle with

Herring; and,

(5) Defendants Carroll, Ambuehl, the City of

Colorado Springs, and the minor plaintiffs are

DISMISSED from this actioz.

Dated February 2, 2005.

BY THE COURT:

/s/ Patricia A. Coan

PATRICIA A. COAN

United States Magistrate Judge

59a

APPENDIX B

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

[Filed May 18, 2007]

No. 06-1166

(D.C. No. 04-CV-2429-PAC-BNB)

(Colorado)

ESTATE OF GREGORY LOUIS HERRING,

by and through Susan Fort, Esq.,

Plaintiff,

GREGORY L. HERRING, JR., SUMMER HERRING, and

GREGORY Q. HERRING, minor children, by and

through their Guardian Ad Litem, Susan Fort, Esq.,

Plaintiffs-Appellants,

Vv.

CITY OF COLORADO SPRINGS, a municipal entity; GARY

DARRESS, RORY CARROLL, and BRENT AMBUEHL,

individually and in their capacities as Colorado

springs police officers,

Defendants-Appellees.

ORDER AND JUDGMENTS

Before HARTZ, SEYMOUR, and McCONNELL,

Circuit Judges.

Three minor children of the late Gregory Herring

contend the district court incorrectly rejected their

' This order and judgment is not binding precedent, except

under the doctrines of law of the case, res judicata, and col-

lateral estoppel. It may be cited, however, for its persuasive

value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

60a

claim for violation of their rights to familial asso-

ciation. We disagree and affirm.

A neighbor of Gregory Herring summoned, the

police to his apartment complex after witnessing Mr.

Herring banging violently on several apartment

doors. The neighbor also witnessed Mr. Herring’s

three children running from their apartment scream-

ing, and Mr. Herring throwing a chair through his

apartment window. The Colorado Springs police

arrived at the apartment, and a lengthy physical

altercation followed. Mr. Herring tragically died as a

result. Mr. Herring’s minor offspring asserted a claim

against the city and individual police officers, alleg-

ing deprivation of their constitutional right of famil-

ial association.

The district court granted defendants’ motion for

summary judgment. The court reasoned that plain-

tiffs failed to show “defendant officers intended to

interfere with the children’s relationship with Mr.

Herring at the time the officers caused his death,”

aplt. app., vol. II at 339, as required by Trujillo v. Bd.

of County Commr’s of Santa Fe, 768 F.2d 1186, 1190

(10th Cir. 1985). We review the district court’s grant

of summary judgment de novo. Graves v. Thomas,

450 F.3d 1215, 1217 (10th Cir. 2006).

On appeal, plaintiffs assert the right of familial

association derives from the Fourteenth Amendment

and therefore does not require the demonstration of

intent on the part of the police officers. They contend

the district court should have applied a Fourteenth

Amendment balancing test to determine if the fa-

milial association claim was meritorious instead of

mandating a demonstration of intent. Although

plaintiffs correctly assert that the familial right of

association is grounded in the Fourteenth Amend-

6la

ment concept of liberty, see Griffin v. Strong, 983

F.2d 1544, 1547 (10th Cir. 1993) (“The freedom of

intimate association is a substantive due process

right, as is its subset, the familial right of associa-

tion.”), we nevertheless require that plaintiffs demon-

strate intent on the part of defendants.

In Trujillo, 768 F.2d at 1190, we “conclude[d] that

an allegation of intent to interfere with a particular

relationship protected by the freedom of intimate

association is required to state a claim under, section

1983.” In Griffin, we cited Trujillo for the principle

that

[nJot every statement or act that results in an

interference with the rights of intimate associa-

tion is actionable. Rather, to rise to the level of a

constitutional claim, the defendant must direct

his or her statements or conduct at the intimate

relationship with knowledge that the statements

or conduct will adversely affect that relationship.

Griffin, 983 F.2d at 1548 (emphasis in original).

Similarly, in J.B. v. Washington County, 127 F.3d

919 (10th Cir. 1997), while recognizing the Four-

teenth Amendment as the constitutional wellspring

of familial association rights, see id. at 927, we

nonetheless continued to require a showing of direc-

tion or intent by the person who allegedly interfered

with the plaintiffs right to familial association. Jd. at

927-28. As such, we concluded that because there was

“no evidence that the County officials intended or

directed their conduct in this matter at the familial

relationship [of the plaintiffs] with knowledge that

such conduct would adversely affect the relation-

ship as required by this court . . . the County offi-

cials’ conduct did not impermissibly interfere with

plaintiffs right of familial association.” Id. at 928

62a

(brackets and quotation marks omitted). More re-

cently, in Christiansen v. City of Tulsa, 332 F.3d

1270, 1283 (10th Cir. 2003), we rejected the constitu-

tional claims of survivors for failing to demonstrate

intent.

Thus, although plaintiffs are correct that this Cir-

cuit acknowledges the Fourteenth Amendment roots

of their constitutional claim, our subsequent cases

clearly preserve direction and intent as a require-

ment for stating a cause of action for the violation

of the constitutional right to familial association.

Plaintiffs have not alleged, nor do they attempt to

demonstrate, that the officers directed their conduct

at plaintiffs’ familial association with their father or

intended to interfere with it. Because they have not

made the requisite showing, the district court cor-

rectly granted summary Judgment for defendants.

Accordingly, we AFFIRM.

ENTERED FOR THE COURT

Stephanie K. Seymour

Circuit Judge

63a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 06-1166

ESTATE OF GREGORY LOUIS HERRING,

by and through Susan Fort, Esq.,

Plaintiff,

GREGORY L. HERRING, JR., SUMMER HERRING, and

GREGORY Q. HERRING, minor children, by and

through their Guardian Ad Litem, Susan Fort, Esq.,

Plaintiffs-Appellants,

Vv.

CITY OF COLORADO SPRINGS, a municipal entity; GARY

DARRESS, RORY CARROLL, and BRENT AMBUEHL,

individually and in their capacities as Colorado

Springs police officers,

Defendants-Appellees.

ORDER

Filed July 12, 2007

Before, HARTZ, SEYMOUR and McCONNELL,

Circuit Judges.

Plaintiff-Appellant’s petition for rehearing is denied.

64a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLORADO

[Filed 8/01/2005]

Civil Action No. 04-CV-2429-BNB-PC

THE ESTATE OF GREGORY LOUIS HERRING,

by and through, CAROLYN MOORE,

Personal Representative, et al.,

Plaintiffs,

v.

THE CITY OF COLORADO SPRINGS,

a municipal entity, et al.,

Defendants.

MOTION FOR SUMMARY JUDGMENT

COME NOW Defendants, the City of Colorado

Springs (“City”), Luis Velez (“Chief Velez”), Gary

Darress, Rory Carroll and Brent Ambuehl, by and

through the Office of the City. Attorney, and pursu-

ant to Fed.R.Civ.P. 56 hereby submit the following

motion for summary judgment:

1. Plaintiffs filed the present complaint against the

Defendants for an incident involving the death of

Gregory Herring (“Herring”) which occurred on May

2, 2003. The case was subsequently removed to the

United States District Court for the District of

Colorado.

2. In Plaintiffs’ fifth claim for relief they allege

that the Officers violated Herring’s Fourth Amend-

65a

ment rights by entering Herring’s apartment when

they had been denied entry, had no warrant, had not

attempted to obtain a warrant, and had no probable

cause to believe exigent circumstances existed. Police

officers may make a warrantless entry When they

reasonably believe that a person within is in need of

immediate ald. Said emergency situation falls within

the exigent circumstances exception to the warrant

requirement. See Mincey v. Arizona, 437 U.S. 385, 98

S.Ct. 2408, 57 L.Ed.2d 290 (1978); United States uv.

Wicks, 995 F.2d 964 (10th Cir. 1993). In the present

case, the Officers reasonably believed that individu-

als within the apartment were in danger and in need

of immediate ald. Therefore, the Officers are entitled

to qualified immunity.

3. In Plaintiffs’ sixth claim for relief they claim

that the Officers’ use of force was unreasonable. An

officer is entitled to use force in self-defense when

threatened with physical harm. See Tennessee uv.

Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1

(1985); Romero v. Board of County Com’rs, 60 F.3d

702 (10th Cir. 1995). In the present case, Herring

became aggressive, attacked an Officer, and continu-

ally fought with the Officers. The Officers used a

reasonable amount of force to defend themselves, and

to restrain Herring. As such, the Officers are entitled

to qualified immunity. See Caricofe v. Mayor and City

Council of Ocean City, Maryland, 32 Fed.Appx. 62

(4th Cir. 2002).

4. In Plaintiffs’ first claim for relief they allege

that the City failed to properly train or supervise its

employees regarding contact and interaction with the

mentally ill, and said failure constituted a custom,

practice or policy of the City. Liability does not attach

to a municipality for the acts of an employee pursu-

66a

ant to § 1983 unless the employee committed a con-

stitutional violation, and a municipal policy or cus-

tom was the moving force behind the constitutional

deprivation. See Monelll v. Department of Social

Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611

(1978); Meyers v. Oklahoma County Bd. Of County

Com’rs, 151 F.3d 1313 (10th Cir. 1998). In the pre-

‘sent case, the Officers acted reasonably and therefore

committed no constitutional violation. In addition,

there has been no showing of any obvious need for

more Shane/Herring/pleadings/motion for summary

judgment training, such that the absence of that

training can be said to reflect a deliberate indiffer-

ence on the part of the City. See City of Canton v.

Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d

412 (1989); Jenkins v. Wood, 81 F.3d 988 (10th Cir.

1996). As such, the City is not subject to liability.

5. In Plaintiffs’ claims for relief one and seven,

Plaintiffs allege that Chief Velez was personally re-

sponsible for implementing customs, practices and

policies, and Chief Velez failed to properly train and

supervise employees. Plaintiffs do not allege that

Chief Velez personally participated in the subject

incident. Individual liability under §1983 must be

based on personal involvement in the alleged con-

stitutional violation. A defendant may not be held

liable under § 1983 on a theory of respondent supe-

rior. Further, a defendant may not be held liable

merely because of his supervisory position. See Foote

uv. Spiegel, 118 F.3d 1416 (10th Cir. 1997); Ledbetter

v. City of Topeka, Kansas, 318 F.3d 1183 (10th Cir.

2003); Ledbetter v. Board of County Com’rs of the

County of Shawnee, Kansas, 2001 WL 705806

(D.Kan.). Since Plaintiffs have failed to allege any

personal participation by Chief Velez in the subject

67a

incident, Chief Velez should be dismissed in his

individual capacity.

6. Plaintiffs also allege that Chief Velez is liable in

his official capacity for implementing customs, prac-

tices and policies, and for failing to train and super-

vise employees. Plaintiffs’ allege the same claims

against the City. Naming Chief Velez in his official

capacity and the City is redundant. Where a suit

contains both entity and official capacity claims, the

only defendant is the entity. See Davoll v. Webb,

943 F.Supp. 1289 (D.Colo. 1996). As such, the claims

against Chief Velez in his official capacity should be

dismissed.

7. In Plaintiffs’ second and fourth claims for relief

they allege state tort claims of negligence and inten-

tional infliction of emotional distress. Pursuant to the

Colorado Governmental Immunity Act, immunity has

not been waived for these torts. Therefore, these

claims should be dismissed.

8. In Plaintiffs third, fourth and tenth claims for

relief, they allege that the Officers’ conduct was such

that it rose to the level of willful and wanton and

conscience shocking, and that the Officers’ intention-

ally inflicted emotional distress. Based upon the un-

disputed facts of this case, the Officers’ conduct was

reasonable and did not remotely approach conduct

necessary to support willful and wanton, conscience

shocking, or intentional infliction of emotional dis-

tress claims. See Rugg v. McCarty, 173 Colo. 170, 476

P.2d 753 (1970); Drake v. City and County of Denver,

953 F.Supp. 1150 (D.Colo. 1997), affd 161 F.3d 17

(10th Cir. 1998); Uhlrig v. Harder, 64 F.3d 567 (10th

Cir. 1995). Further, Herring’s children were not pre-

sent during the interaction between the Officers and

Herring. Therefore, the children were not in the zone

68a

of danger. See Atsepoyi v. Tandy Corp., 51 F.Supp.2d

1120 (D.Colo. 1999): As such, these claims cannot

stand.

9. In Plaintiffs’ eighth claim for relief they allege

that the Officers violated their constitutional right to

- familial association. An allegation of intent to inter-

fere with a particular relationship protected by the

freedom of intimate association is required to state a

claim under §1983. See Trujillo v. Board of County

Com’rs of Santa Fe County, 768 F.2d 1186 (10th Cir.

1985). Plaintiffs have failed to allege that the Officers

intended to interfere with a relationship, nor do the

facts support such an allegation. As such, said claim

should be dismissed.

10. Plaintiffs are not entitled to punitive or

exemplary damages against the City or Chief Velez

in his official capacity. See City of Newport v. Fact

Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69

L.Ed.2d 616 (1981).

11. There are no genuine issues of material fact on

these points.

12. Therefore, the Defendants are entitled to dis-

missal against Plaintiffs in this case.

13. The Brief in Support of Motion for Summary

Judgment is submitted herewith along with support-

ing affidavits and copies of cited unpublished opin-

ions.

WHEREFORE, for the foregoing reasons, it is re-

spectfully requested that this Honorable Court enter

an order granting Defendants’ Motion for Summary

Judgment, and dismiss Plaintiffs’ complaint with pre-

judice, and for any other relief this Court deems

appropriate.

| 69a

Dated this lst day of August, 2005.

Respectfully submitted,

PATRICIA K. KELLY

City Attorney/Chief Legal Officer

Reg. No. 014408

/s/ Shane M. White

Shane M. White

Senior Attorney

Reg. No. 019034

Colorado Springs City Attorney’s Office

30 South Nevada Avenue, Ste. 501

P.O. Box 1575, Mail Code 510

Colorado Springs, Colorado 80901-1575

Telephone: (719) 385-5909

Facsimile: (719) 385-5535

E-mail: swhitegspringsgov.com

Attorneys for Defendants

70a

Cindy Roddy

From: COD_ENotice@cod.uscourts.gov

Sent: Monday, August 01, 2005 11:09 AM

To: COD_NEF©cod.uscourts.gov

Subject: Activity in Case 1:04-cv-02429-PAC-

BNB Herring at al v. City of Colorado Springs, et al

“Motion for Summary Judgment”

***NOTE TO PUBLIC ACCESS USERS** You may

view the filed documents once without charge. To

avoid later charges, download a copy of each docu-

ment during this first viewing.

U.S. District Court

District of Colorado

Notice of Electronic Filing

The following transaction was received from White,

Shane Matthew entered on 8/1/2005 at 11:09 AM

MDT and filed on 8/1/2005

_ Case Name: Herring et al v. City of Colorado

Springs, et al

Case Number: 1:04-ev-2429

Filer: Colorado Springs, City of Colo-

rado Springs Police Department

Luis Velez

Luis (I) Velez

Gary (I) Darress

Gary Darress

Rory (1) Carroll

Rory Carroll

Brent (I) Ambuehl

Brent Ambuehl

Document Number: 39

Docket Text:

MOTION for Summary Judgment by Defendants

Colorado Springs, City of, Colorado Springs Police

Department, Luis (I) Velez, Luis Velez, Gary (I)

Darress, Gary Darress, Rory (I) Carroll, Rory Carroll,

Brent (I) Ambuehl, Brent Ambuehl] (White, Shane)

The following document(s) are associated with this

transaction:

Document description: Main Document

Original Filename: n/a

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(STAMP dceecfStamp ID=1071006659 [Date=8/1/2005]

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3772cO09fcb7c975b8928ad 9bff6ec2ed267bcd6cf54f8402

90a020bd5c5a8a1f65efac6472b80add812d53443d9b0

192855954ea711

1:04-cv-2429 Notice will be electronically mailed to:

Robert Wallace Carney rcarney@pjmck.com,

speter-sen@pjmck.com

Robert John Frank cindy@rjflaw.com,

rob@-rjflaw.com

Scott Sherman Nixon snixon@pjckn.com,

drippen-trop@pickn.com;

kries@pjckn.com

Shane Matthew White cattomey@springsgov.com,

thaywood@springsgov.com

1:04-cv-2429 Notice will be delivered by other means

to:

72a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 04-CV-2429-BNB-PC

THE ESTATE OF GREGORY LOUIS HERRING,

By and through, CAROLYN MOORE,

Personal Representative, et al.,

Plaintiffs,

Vv.

THE CITY OF COLORADO SPRINGS,

a municipal entity, et al.,

Defendants.

BRIEF IN SUPPORT OF MOTION FOR

SUMMARY JUDGMENT

COME NOW Defendants, the City of Colorado

Springs (“City”), Luis Velez (“ChiefVelez”), Gary

Darress, Rory Carroll, and Brent Ambuehl, by and

through the Office of the City Attorney, and pursuant

to Fed.R.Civ.P. 56 hereby submit the following brief

in support of motion for summary judgment:

STATEMENT OF FACTS

On May 2, 2003, Scott Elder made a call to 911 to

report a disturbance being caused by Gregory Her-

ring (“Herring”) at the Winfield Apartments. Exhibit

A, Affidavit of Scott Elder, (2. Mr. Elder heard a

banging noise coming from outside of his apartment.

Id. at 14. When Mr. Elder looked out he saw Herring

banging on other apartment doors. Jd. Mr. Elder then

observed Herring cross the parking lot and approach

Mr. Elder’s apartment building. Jd. Mr. Elder then

73a

heard Herring banging on doors beneath his apart-

ment, stomp up the stairs and begin to violently

pound on Mr. Elder’s door. Id. at 194-5. Perceiving

Herring to be over six feet tall and approximately 240

pounds, Mr. Elder feared that Herring would break

open the door and harm Mr. Elder. Jd. at 45-7.

Fearing for his own safety, Mr. Elder retreated to his

balcony and called 911. Jd. at 7. It was Mr. Elder’s

intention to jump from his balcony if Herring broke

into the apartment. Id. at 7.

While Mr. Elder was speaking with the 911

operator, Herring left Mr. Elder’s door and went to

Herring’s own apartment. Jd. at {8. Mr. Elder then

watched as Herring’s three children ran screaming

from Herring’s apartment. Jd. Mr. Elder also ob-

served Herring throwing a chair out of Herring’s

apartment window. Jd. Mr. Elder reported this infor-

mation to the 911 operator and ended the call. Jd.

at 9.

A short time later, Mr. Elder called back to 911. Jd.

at 10. Mr. Elder reported that Herring was breaking

out his apartment windows and throwing items out of

the windows. Id. at 11. Mr. Elder also reported that

Herring was nude, his arms were slashed and bleed-

ing, and he had a cut on his abdomen. /d. at 12.

Mr. Elder ended this call to 911 and then observed

a fire engine from the Colorado Springs Fire Depart-

ment (“CSFD”) and an ambulance from American

Medical Response (“AMR”) arrive and park in the

apartment complex parking lot. Jd. at 714; Exhibit

E, Affidavit of Firefighter/Paramedic Clark Gaddie,

13; Exhibit F, Affidavit of Firefighter Lerry Arm-

stead, 73.

74a

Colorado Springs Police Officers Gary Darress,

Rory Carroll and Brent Ambuehl were dispatched to

respond to Mr. Elder’s calls. While enroute to the

Winfield Apartments, Officer Darress was informed

that Herring had been beating on a neighbor’s door,

that Herring was naked, bleeding from cuts on his

arm and abdomen, and was throwing items out of

Herring’s own apartment window. Affidavit B, Affida-

vit of Officer Gary Darress, (3. Upon arrival at the

Winfield Apartments, Mr. Elder directed Officer

Darress to Herring’s apartment. Exhibit A, 4714-15;

Exhibit B, 75.

Upon approaching Herring’s apartment, Officer

Darress observed a broken window and numerous

household items that had been thrown out of the

broken window. Exhibit B, 96. Officer Darress then

looked through the broken window and into the

apartment. Officer Darress observed blood on the

walls, items that had been thrown all over the apart-

ment, and that the inside, of the apartment looked

“like a bomb had gone off.” Jd. at (7. Officer Darress

then heard a grunting or moaning noise coming from

inside the apartment. Jd. at 79. At this time, Mr.

Elder yelled to .Officer Darress something about

Herring’s children. Jd. at 410. Officer Darress then

walked around the outside of Herring’s apartment

and observed that every window in the apartment

had been broken out, and there was blood throughout

the other rooms in the apartment. Jd. at J11. Officer

Darress then contacted Herring through a broken

window in the back of the apartment by introducing

himself. Officer Darress observed that Herring was

naked, had a two-and-one-half to three inch cut on

his right arm, had a cut on his abdomen, and was

leaning out of a broken window with his abdomen

pressed against the broken glass in the window

75a

frame. Id. at 7912-14. When Officer Darress con-

tacted Herring, Herring continued to throw items out

of the window. id. at 13. Because of the cuts on

Herring, Officer Darress thought that Herring was

intentionally injuring himself, and possibly attempt-

ing to commit suicide. Jd. at (14.

While Officer Darress was contacting Herring, Offi-

cers Rory Carroll and Brent Ambuehl arrived at the

Winfield Apartments. Officer Carroll had been

informed that Herring had been banging on an apart-

ment door and trying to get inside the apartment,

that Herring was nude, was banging on other apart-

ment doors, that children had run from Herring’s

apartment, that furniture and clothing were being

thrown from Herring’s apartment, and that Herring

was tearing up his own apartment. Exhibit C, Affida-

vit of Officer Rory Carroll, 13. Officer Ambuehl was

informed that Herring had cuts on his arms and

abdomen, was banging on apartment doors, and that

children were living with Herring. Exhibit D, Affida-

vit, of Officer Brent Ambuehl, 3.

When Officers Carroll and Ambuehl] arrived at the

Winfield Apartments, Officer Carroll observed blood

on one or two apartment doors. Exhibit C, [5. At this

time, Mr. Elder also directed Officers Carroll and

Ambuelil to Herring’s apartment. Exhibit A, 716;

Exhibit C, 15.

Upon arriving at Herring’s apartment, Officers

Carroll and Ambuehl observed that every window in

Herring’s apartment had been broken out, Herring

was throwing items out of a broken window, Herring

was yelling, children’s clothes, furniture, etc., had

been thrown out of the apartment, and broken glass

was everywhere. Exhibit C, 96; Exhibit D, 77. In

addition, Officer Ambuehl observed that Herring was

76a

naked, bleeding, and appeared to be harming him-

self. This was evident because of the blood all over

Herring’s abdomen and body, and the blood on the

sidewalk. Exhibit D, 18. Officers Carroll and Ambuehl

observed Officer Darress speaking with Herring and

trying to calm Herring down. Exhibit C, 16; Exhibit

D, 17.

At this time, Officer Darress believed that Officers

Carroll and Ambuehl could gain entry into Herring’s

apartment while Officer Darress distracted Herring.

Exhibit B, 115. It was Officer Darress’ intent that

Officers Carroll and Ambuehl subdue Herring so that

Herring would not continue to harm himself, so that

medical attention could be administered to Herring,

and to keep Herring from jumping out the broken

window and further harming himself or others. Id. at

415 and 43. It was Officer Darress’ opinion at the

scene that Herring needed immediate help. Id. at

q43.

Officer Darress then directed Officers Carroll and

Ambuehl to go in the front door of the apartment.

Exhibit B, 116; Exhibit C, 17, Exhibit D, 710. Officer

Ambuehl went to the front door while Officer Carroll

waited at the corner of the apartment building.

Exhibit C, 97; Exhibit D, (10. The front door was

locked, so Officers Carroll and Ambuehl returned and

conveyed this to Officer Darress. Officer Darress then

directed Officers Carroll and Ambuehl to kick in the

front descr. Exhibit B, 116; Exhibit C, 17, Exhibit D,

{10. Officers Carroll and Ambuehl then kicked in the

front door and entered the apartment. Exhibit C, 78;

Exhibit D, §11.

Officer Carroll did not know if anyone else was in

the apartment with Herring that may have been in

danger and needing help. Officer Carroll heard that

77a

kids had run from the apartment, but did not know if

anyone was still in the apartment. Exhibit C, 431. It

was Officer Carroll’s opinion at the scene that if

anyone else was in the apartment they would have

been in danger and in need of immediate help. Id. at

32. Given all the blood that Officer Carroll observed,

Officer Carroll did not know if it was all from Herring

or from someone else as well. Id.

Officer Ambuehl had been informed that Herring

had children but did not know if the children were in

the apartment with Herring. Exhibit D, 134. Officer

Ambuehl entered Herring’s apartment to help any

children who may have been present. It was Officer

Ambuehl’s opinion at the scene that if any children

were in the apartment they would have been in dan-

ger and in need of immediate help. Jd. at 35.

Upon entering the apartment, Officers Carroll and

Ambuehl observed that the apartment was in sham-

bles. Various items had been thrown everywhere and

the Officers had to maneuver over the items to get

through the apartment. Exhibit C, 49. Officer Carroll

went directly to the back bedroom where Herring was

located while Officer Ambuehl checked the remainder

of the apartment. Exhibit C, {10; Exhibit D, 1912-13.

Herring was the only person in the apartment.

Exhibit D, 13. :

To get to the back bedroom where Herring was

located Officer Carroll had to go through a hallway

which led to the bedroom and bathroom. Exhibit C,

410. Officer Carroll entered the bedroom and stopped

by the entrance to the bathroom. Id. Officer Carroll

observed that the bathroom floor was covered with

water and blood, that Herring was naked, had blood

al. over his arm and abdomen, and there was blood

al) over the apartment walls. Jd.

78a

When Officer Carroll entered the bedroom Herring

saw him. Herring then threw a broken shelf and a

bottle at Officer Carroll. Exhibit C, 911. At this time,

Officer Ambuehl had made his way to the bedroom.

Officer Ambuehl positioned himself at the doorway

between the hail and the bedroom. Exhibit D, 414.

Herring then approached Officer Carroll at which

time Officer Carroll ordered Herring to stop. Exhibit

C, §11. Herring continued to approach Officer Carroll

at which time Officer Carroll sprayed Herring one

time with a one second burst of O.C. spray in

Herring’s left eye. Exhibit B, 717; Exhibit C, 711;

Exhibit D, 915. Herring was sprayed because of

his aggressive behavior and because he would not

stop. Exhibit C, J11. In response to the O.C. spray,

Herring covered his eyes, turned away for one second,

looked back at Officer Carroll, stated that “we are all

going to die,” and charged into Officer Carroll.

Exhibit B, (18; Exhibit C, [12; Exhibit D, 15.

Believing that Herring meant what he said, Officer

Carroll again ordered Herring to stop. Herring did

not stop and attacked Officer Carroll. Exhibit B, 718;

Exhibit C, 1713-14; Exhibit D, 115. Herring grabbed

Officer Carroll by the left shoulder and pushed him

back causing the door between the hall and bedroom

to slam shut. Herring and Officer Carroll then fell to

the bathroom floor. Exhibit C, 14; Exhibit D, 715.

At this time, Officer Carroll was alone with Herring

in the bathroom. Exhibit C, 914. Herring then

grabbed Officer Carroll’s testicles and squeezed. Jd.

at 914. Screaming in pain Officer Carroll struck

Herring with his fist in the middle of Herring’s back

and ordered Herring to let go of his testicles. Id.

Herring did not let go so Officer Carroll struck

Herring again with his fist on Herring’s back. /d.

79a

Herring then let go and tried to get up. Id. Herring

again stated, “we are all going to die.” Jd.

During this t_ .., Officer Ambuehl was able to force

open the door to se bedroom. Exhibit D, 415. Officer

Ambuehl observed that the toilet, door and bathtub

had blood all over them, and the bathroom floor was

wet and bloody. Exhibit D, 17. Officer Ambuehl then

grabbed Herring’s feet to assist Officer Carroll. Jd. at

q18. Herring was fighting so hard that he was

throwing Officers Carroll and Ambuehl around the

bathroom. Id. at 119.

Officer Darress came around the apartment and

entered the apartment through the front door. Ex-

hibit B, 419. Upon entering the apartment Officer

Darress saw a blanket. Officer Darress grabbed

the blanket with the intent of wrapping it around

Herring to subdue him. Exhibit B, 419. Officer

Darress then entered the bathroom and attempted to

wrap the blanket around Herring. This did not work

and the blanket went flying off into the bathtub.

Exhibit B, (23; Exhibit D, (20. At this time, Herring

was face down on the bathroom floor. Officer Darress

was on Herring’s right side by Timing’s head and

shoulders, Officer Carroll was on Herring’s left side

by Herring’s head and shoulders, and Officer Ambuehl

was at Herring’s feet. Exhibit B at 122-23; Exhibit

C at 16. :

All three Officers were now struggling with Herring

and trying to restrain him. Exhibit C, 117. Herring’s

left heel then came up and kicked Officer Ambuehl in

the left eye. Exhibit D, 721. Officer Carroil then

struck Herring on Herring’s shoulder with his fist.

Exhibit C, 417. Officer Darress took out his handcuffs

and handed them to Officer Carroll, who was able to

get Herring’s left wrist cuffed. Exhibit 13, 124; Ex-

80a

hibit C, 717. However, due to Herring fighting so

hard Officer Carroll was unable to get the cuffs

around Herring’s right wrist. Exhibit B, 124. Herring

was fighting so hard that he was physically lifting

the Officers off of the floor. Id.

During the struggle, Herring grabbed Officer

Carroll’s firearm holster. This led Officer Carroll to

believe that Herring was reaching for his gun. Ex-

hibit C, (18. Herring then grabbed Officer Darress’

testicles and squeezed. Screaming in pain, Officer

Darress struck Herring with the soft side of his fist in

an effort to get Herring to let go of his testicles.

Exhibit B, 925. Herring finally let go after being

struck in the head five to six times. Id.

Officer Carroll then tried to pull Herring’s left arm

behind Herring’s back in an effort to control Herring’s

arms. Exhibit C, {19. However, Herring pulled Offi-

cer Carroll forward. Jd. Officer Carroll then struck

Herring on the shoulder with his fist. Jd. At this

time, Officer Carroll pulled out his PR-24 and put it

under Herring’s armpit and tried to pull Herring’s

arm back. Id. at 120; Exhibit D, 123. This maneuver

was unsuccessful, so Officer Carroll gave the PR-24

to Officer Ambuehl to use under Herring’s legs as a

compliance maneuver. Jd. This maneuver was also

unsuccessful, so Officer Ambuehl placed the PR-24 on

the counter by the sink. Jd. Officer Carroll then

reached over to try to get Herring’s right wrist cuffed.

Exhibit C, (21. Herring then bit into Officer Carroll’s

left ring finger. Exhibit B, 426; Exhibit C, 721.

Screaming in pain Officer Carroll struck Herring

with his fist in the side of Herring’s face and ordered

Herring to let go of his finger. Herring did not let go,

so Officer Carroll struck Herring again. Herring then

8la

let go of Officer Carroll’s finger. Exhibit B, 26; Ex-

hibit C, 122.

Officer Ambuehl then wedged his right knee into

the side of Herring’s right thigh and wedged his right

leg against the wall for leverage in an attempt to

restrain Herring’s legs. Exhibit D, (24. However, this

maneuver did not work. Jd. At this time, Herring

grabbed Officer Darress’ PR-24 and pulled it out of

the holder. Exhibit B, 727: Officer Darress fought

Herring and was able to get the PR-24 back. Id.

Herring continued to fight, so Officer Darress struck

Herring in the. head three to four times using a flat

chop. Jd. Herring was fighting so hard that Officer

Darress thought Herring was on PCP. Id. at {28.

Herring then bit into Officer Darress’ right knee. Jd.

at 729. Officer Darress struck Herring with his fist

on Herring’s head approximately five times, ordering

Herring to stop biting his knee. Jd.

At this time, Officer Darress called for medical per-

sonnel to come in and assist. Exhibit B, 130. It was

Officer Darress’ belief that with more bodies Herring

could be controlled and then medical assistance could

be administered to Herring. Jd. Herring continued to

fight so hard that he was physically lifting the

Officers off of the ground. Jd. at (31. At this time,

Officer Darress pressed his thumb into a pressure

point on the side of Herring’s neck in an attempt to,

get Herring to comply with commands to calm down.

However, this maneuver had no effect. Jd.

Officer Darress was then finally able to get the

handcuff around Herring’s light wrist so that both of

Herring’s hands were cuffed in front. Exhibit B, [32;

Exhibit C, 923. Officer Darress again called for

medical personnel to come in an assist. Exhibit B,

133; Exhibit D, 125.

82a

Herring then pushed himself and the Officers up

off the floor so that Herring was now on his forearms

’ and his upper body was off the floor, and he tried to

roll over. Exhibit B, 134; Exhibit C, 923. Officer

Darress believed that if Herring were able to get up it

would be impossible to contain him. Exhibit B, 735.

At this time, Officer Darress, while lying on top of

Herring, pushed with his upper body on Herring’s

back in an attempt to get Herring back on his

stomach. Jd. Officer Carroll also struck Herring on

the back with his fist and ordered Herring to get

down. Exhibit C, 723. Herring again reached back

and grabbed Officer Carroll’s firearm holster. Id. at

(24. Believing Herring was attempting to take his

firearm; Officer Carroll placed his hand on his fire-

arm to keep Herring from taking the firearm. Id.

At this time, CSFD and AMR entered the apart-

ment. Exhibit B, (36; Exhibit C, 125; Exhibit D, 126;

Exhibit E, 78; Exhibit F, (6. When approaching the

apartment, the Firefighters observed that blood was

on the sidewalk and on other apartment doors, that

the apartment windows were broken out, that debris

was scattered outside of the apartment, and they

could hear screaming coming from inside the apart-

ment. Exhibit E, 7; Exhibit F, 15. Upon entering the

apartment, the Firefighters observed that the apart-

ment was in disarray, blood was everywhere, the

three police Officers were fighting with Herring in

the bathroom, Herring was naked, face down, yelling,

cussing, and fighting the Officers. Exhibit E, 118-9;

Exhibit F, 96. The Firefighters immediately assisted

the police Officers and attempted to restrain Herring

because the Officers were unsuccessful in controlling

Hearing, and for Herring’s own safety so that medical

attention could be administered to him. Exhibit E,

411; Exhibit F, 78.

83a

Because Herring could not be restrained, it was

determined that .medication should be administered

to Herring. At this time, an AMR paramedic pre-

pared a syringe of 5 milligrams of Haldol and admin-

istered the Haldol into Herring’s left buttock. Exhibit

B, 136; Exhibit C, 725; Exhibit D, 127, Exhibit E,

q§112-13; Exhibit F, 79. However, this shot had no

effect on Herring. Jd. The AMR paramedic then pre-

pared a second 5 milligram shot of Valium and

handed the syringe to Firefighter/Paramedic Gaddie.

Firefighter/Paramedic Gaddie then administered the

Valium into Herring’s left buttock. A short time after

the second shot was administered, Herring began to

calm. down. Exhibit B, 136; Exhibit C, (26; Exhibit

D, 9928-29; Exhibit E, 914; Exhibit F, 10. The

Haldol and Valium were administered to Herring in

order to assist in restraining Herring so that medical

care could be provided to Herring. These medications

are routinely used for the safety of the subject indi-

vidual, the officers, and firefighters involved. Exhibit

E, 915.

After Herring had calmed down, Firefighter/

Paramedic Gaddie asked if Herring was breathing.

Exhibit B, 37; Exhibit E, 916; Exhibit F, 11.

Oificer Darress checked Herring’s pulse and con-

firmed that Herring was breathing. Jd. Officers

Darress, Carroll, and Ambuehl then left the bath-

room and apartment to attend to their own injuries.

Exhibit B, 738; Exhibit C, 27; Exhibit D, 30;

Exhibit B, 717.

After the Officers left the bathroom, the CSFD and

AMR personnel rolled Herring onto his back and

pulled him toward the doorway. Exhibit E, 418. Fire-

fighter /Paramedic Gaddie then checked Herring’s

breathing using a stethoscope and noted that Herring

84a

had strong breath sounds. Firefighter/Paramedic

Gaddie also discovered that Herring had a strong

carotid pulse. Jd.

A few minutes later, Herring stopped breathing.

Exhibit E, §19. Firefighter/Paramedic Gaddie imme-

diately checked Herring’s pulse and discovered that

Herring still had a strong carotid pulse. Jd. Fire-

fighter/Paramedic Gaddie then began ventilating

Herring. Jd., Exhibit F, 1512-13. Herring was then

placed on a backboard and rushed to the AMR ambu-

lance. Id. Once at the ambulance, Firefighter/

Paramedic Gaddie again checked Herring’s pulse. At

this time, Herring did not have a pulse so CPR was

immediately begun. Exhibit E, 119. Herring was then

transported to the hospital, where he subsequently

died. Id. |

ARGUMENT

I. STANDARD OF REVIEW.

Summary judgment is appropriate “if the plead-

ings, depositions, answers to interrogatories, and

admissions on file, together with affidavits, if any, ,

show that there is no genuine issue as to any mate-

rial fact and that the moving party is entitled to

judgment as a matter of law.” Fed.R.Civ.P. 56(c).

Upon a motion for summary judgment, the moving

party bears the burden of showing the absence of a

genuine issue of material fact. Celotex Corp. uv.

Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91

L.Ed.2d 265 (1986). The burden then shifts to the

non-moving party to produce evidence creating a

genuine issue of material fact to be resolved at trial.

Vitikus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.

1993). To avoid summary judgment, the non-moving

party must present more than “a mere scintilla of

85a

evidence.” Jd. There must be enough evidence to

allow a reasonable jury to find for the non-moving

party. Id. The non-movant “may not rest upon mere

allegations or denials” of the pleadings, Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.

2505, 91 L.Ed.2d 202 (1986), but must “set forth

specific facts showing that there is a genuine issue

for trial as to those dispositive matters for which it

carries the burden of proof.” Apz ied Genetics Intern.,

Inc., v. First Affiliated Securities Inc., 912 F.2d 1238,

1241 (10th Cir. 1990).

Qualified immunity is an affirmative defense

against Section 1983 claims. Quezada v. County of

Bernalillo, 944 F.2d 710, 718 (10th Cir. 1991). Its

purpose is to shield public officials “from undue

interference with their duties and from potentially

disabling threats of liability,” and to spare them the

burden of going forward with trial. Harlow v. Fitz-

gerald, 457 U.S. 800, 806; 102 S.Ct. 2727, 2732, 73

L.Ed.2d 396 (1982). See also Anderson v. Creighton,

483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523

(1987). In all but the most exceptional cases, quali-

fied immunity protects government officials perform-

ing discretionary functions from the burden of civil

trials and from liability for damages. Harris v. Board

of Educ. of the City of Atlanta, 105 F.3d 591, 595

(11th Cir. 1997).

Excessive force claims are analyzed under the

Fourth Amendment’s “objective reasonable standard,”

not under substantive due process principles. Saucier

uv. Katz, 533 U.S. 194, 204, 121 S.Ct. 2151, 150

L.Ed.2d 272 (2001). See also Graham v. Conner, 490

U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443

(1989). This objective standard requires the court to

ask “whether a reasonable officer in the same circum-

86a

stances would have concluded that a threat existed

justifying the particular use of force.” Graham, 490

U.S. at 396-97. “Because police officers are often

forced to make split-second judgments—in circum-

stances that are tense, uncertain, and rapidly

evolving—about the amount of force that is necessary

in a particular situation, the reasonableness of the

officer's belief as to the appropriate level of force

should be judged from that on-scene perspective.”

Saucier, 533 U.S. at 205 (internal citations omitted).

Use of the “20/20 vision of hindsight” is not per-

mitted. Id. Rather, “deference to the judgment of

reasonable officers on the scene” is given. Jd. There-

fore, the qualified immunity defense “embodies an

‘objective reasonableness’ standard giving a govern-

ment agent the benefit of the doubt,” provided that

the conduct was not “so obviously illegal in the light

of then-existing law that only an official who was

incompetent or who knowingly was violating the law

would have committed” the acts. Crosby v. Paulk, 187

F.3d 1339, 1344 (11th Cir. 1999).

“In a suit against an officer for an alleged violation

of a constitutional right, the requisites of a qualified

immunity defense must be considered in proper se-

quence.” Saucier, 535 U.S. at 200. See also Schnurr v.

Board of County Coin of Jefferson County, 189

F.Supp.2d 1105, 1119 (D.Colo. 2001). “After a defen-

dant asserts a qualified immunity defense, the bur-

den shifts to the plaintiff.” Medina v. Cram, 252 F.3d

1124, 1128 (10th Cir. 2001). The plaintiff must then

satisfy a “heavy two-part burden” Jd. “The plaintiff

must first establish ‘that the defendant’s actions vio-

lated a constitutional or statutory right.” Jd. “If the

plaintiff establishes a violation of a constitutional or

statutory right, he must then demonstrate that the

87a

rizht at issue was clearly established at the time of

the defendant’s unlawful conduct.” Id.

To survive a motion for summary judgment, the

plaintiff must show the right was “clearly established

in a ‘particularized’ sense.” Anderson, 483 U.S. at

64.0. A plaintiff “must do more than identify in the

abstract a clearly established right and allege that

the defendant has violated it.” Pueblo Neighborhood

Health Centers, Inc. v. Losavio, 847 F.2d 642, 645

(10th Cir. 1988). A plaintiff “must articulate the

clearly established constitutional right and the defen-

dant’s conduct which violated the right with specific-

ity.” Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th

Cir. 1995). See also Walter v. Morton, 33 F.3d 1240,

1242 (10th Cir. 1994) (“the plaintiff... has the bur-

den to show with particularity facts and law estab-

lishing the inference that the defendants violated a

constitutional right”). For the law to be clearly estab-

lished, “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.”

Medina v. City and County of Denver, 960 F.2d 1493,

1498 (10th Cir. 1992). See also Anderson, 453 U.S. at

640 (a right is clearly established if the contours of

the right are “sufficiently clear [so] that a reasonable

official would understand that what he is doing

violates that right”). One purpose of this requirement

is notice; officials cannot “reasonably be expected to

anticipate subsequent legal developments” nor “fairly

be said to ‘know’ that the law forbade conduct not

previously identified as unlawful.” Powell ov.

Mikulecky, 891 F.2d 1454, 1456 (10th Cir. 1989). In

short, “the record must clearly demonstrate the

plaintiff has satisfied the heavy two-part burden;

otherwise the defendants are entitled to qualified

88a

immunity.” Medina v. Cram, 252 F.3d at 1128. “Con-

sequently, in order for [Plaintiffs] claim to survive

judgment, the record must contain facts that rebut

the presumption of the officer’s immunity from suit.”

Id. at 1130.

Il. THE OFFICERS WERE CONFRONTED

WITH AN EMERGENCY SITUATION GIV-

ING RISE TO EXIGENT CIRCUMSTANCES.

THEREFORE, THE OFFICERS WERE OB-

JECTIVELY REASONABLE IN ENTERING

THE APARTMENT AND ARE ENTITLED TO

QUALIFIED IMMUNITY.

In Plaintiffs’ fifth claim for relief they assert that

. the Officers’ violated Herring’s Fourth Amendment

rights by entering Herring’s apartment. Complaint,

197141-43. Plaintiffs’ claim that the Officers had been

denied entry, had no warrant, had not attempted to

obtain a warrant, and had no probable cause to be-

lieve exigent circumstances existed justifying entry.

Id. at 142.

It is not disputed that the Officers did not obtain

a warrant before entering the apartment. However,

“the Fourth Amendment does not bar police officers

from making warrantless entries: and searches when

they reascnably believe that a person within is in

need of immediate aid.” Mincey v. Arizona, 437 U.S.

385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). See

also Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642,

18 L.Ed.2d 782 (1967) (“Fourth Amendment does not

require police officers to delay in the course of an

investigation if to do so would gravely endanger their

lives or the lives of others”); United States v. Wicks,

995 F.2d 964, 970 (10th Cir. 1993) (“officers may...

conduct a warrantless search if they believe that

their own lives or the lives of others are at risk”).

89a

Therefore, emergency situations involving endanger-

ment to life fall within the exigent circumstances

exception to the warrant requirement. Wicks, 955

F.2d at 970.

The basic elements of the exigent circumstances

exception are that:

(1) the law enforcement officers must have rea-

sonable grounds to believe that there is immedi-

ate need to protect their lives or others or their

property or that of others, (2) the search must

not be motivated by an intent to arrest and seize

evidence, and (3) there must be some reasonable

basis, approaching probable cause, to associate

an emergency with the area or place to be

searched.

United States v. Smith, 797 F.2d 836, 840 (10th Cir.

1986). In determining whether exigency existed, the

court examines the circumstances “as they would

have appeared to prudent, cautious, and trained offi-

cers.” United States v. Anderson, 154 F.3d 1225, 1233

(10th Cir. 1998). “The question is not whether one of

the Plaintiffs was actually at risk or in need of aid,

but whether the Defendant Officers were reasonable

in believing that exigent circumstances existed.”

Foutz v. City of West Valley City, 345 F.Supp.2d 1272,

1276 (D.Utah 2004).

In the present case, the Officers had reasonable

grounds to believe that there was an immediate need

to protect the life of others. The Officers responded to

a report by a neighbor that there was a nude male

pounding on apartment doors, including the neigh-

bor’s, so hard the neighbor feared the male would

break open the door, that the male was breaking out

his own apartment windows, was throwing items out

90a

of the broken window, that his arms were slashed

and bleeding, that his abdomen was cut, and that

children had run screaming from the male’s apart-

ment. Exhibit A, [4-12..Upon arrival, Officer Darress

observed that every window in the apartment had

been broken out, items had been thrown onto the

ground outside, there was blood on the walls in the

rooms throughout the apartment, and that the inside

of the apartment looked like a bomb had gone off.

Exhibit B, (6-11. Upon contacting Herring, Officer

Darress observed that Herring was naked, had cuts

on his aim and abdomen, and was leaning against

broken glass in the window frame. Id. at 12-14.

Upon Officer Carroll’s arrival, Officer Carroll ob-

served blood on apartment doors, Herring was

throwing items out of the apartment window, the

apartment windows had been broken out, and he was

informed by Officer Darres that blood was every-

where. Exhibit C, 975-6 and 32. When Officer

Ambuehl arrived, Officer Ambuehl observed that

all the apartment windows had been broken out,

Herring was throwing items out of a window, Herring

was naked, bleeding and there was blood all over

Herring’s abdomen, body and the sidewalk. Exhibit

D, 116-8.

The statements made by the neighbor regarding

Herring violently beating on doors, Herring appear-

ing to be injured, and children having ran screaming

from Herring’s residence coupled with the Officers’

personal observations of the broken windows, debris

on the ground, blood on doors, apartment walls and

the sidewalk, as well as Herring’s own injuries and

the destroyed condition of the apartment all support

the Officers’ reasonable belief that someone in the

apartment was in need of immediate aid, and thus

exigent circumstances existed. Confronted with this

9la

evidence, the Officers were objectively reasonable in

concluding that either Herring, children, or someone

else in the apartment could have been seriously

injured. See Foutz, 345 F.Supp.2d at 1277.

The undisputed evidence reflects a concern on the

part of all three Officers that someone in the apart-

ment may have been in danger and in need of

immediate aid. It was Officer Darress’ opinion at the

scene that Herring was injuring himself and in need

of immediate help. Officer Darress’ intent was to

subdue Herring so that medical aid could be adminis-

tered to Herring. Exhibit 143. Officer Carroll was

concerned that someone other than Herring could

have been in the apartment. It was Officer Carroll’s

opinion at the scene, given all the blood, that if some-

one else was in the apartment with Herring they

would have been in danger and in need of immediate

ald. Exhibit 1931-32. Officer Ambuehl was concerned

that children may have been in the apartment with

Herring. Officer Ambuehl had been informed that

Herring had children and it was Officer Ambuehl’s

opinion that if any children were in the apartment

they would have been in danger and in need of

immediate aid. Exhibit D, 1134-35.

The Officers were not motivated by an intent to

arrest and seize evidence. Indeed, the Officers were

motivated by an intent to help whomever was in the

apartment and either assure their safety, or assure

that medical care could be provided. See Foutz, 345

F .Supp.2d at 1277.

The same facts justifying the Officers’ belief that

there was an immediate need to protect the lives of

_others also provide a reasonable basis, approaching

probable cause, to associate an emergency with the

area or place to be searched. Based upon the undis-

92a

puted facts, the Officers had objectively reasonable

grounds to believe that an emergency situation exist-

ed justifying a warrantless entry into the apartment

to provide assistance to the occupants or to assure

their safety. See Foutz, 345 F.Supp.2d at 1277. The

existence of blood, broken windows, and other signs

of destruction provide probable cause for an officer’s

reasonable belief that an emergency exists. See

Tierney v. Davidson, 133 F.3d 189, 198 (2nd Cir.

1998) (“The absence of blood, overturned furniture or

other signs of tumult” did not render the officer’s

belief that danger existed unreasonable and did not

require the officer “to withdraw and go about other

business, or stand watch outside the premises listen-

ing for the sounds of splintering furniture”); United

States v. Brown, 64 F.3d 1083, 1086 (7th Cir. 1995)

(“We do not think that the police must stand outside

an apartment, despite legitimate concerns about

the welfare of the occupant, unless they can hear

screams. Doubtless outcries would justify entry, but

they are not essential”).

The Officers’ choice to enter the apartment was

objectively reasonable. As such, the Officers are enti-

tled to qualified immunity. “Such immunity is given

not only for the protection of the officers, but also to

protect victims of crime.” Fletcher v. Town of Clinton, -

196 F.3d 41, 49 (1st Cir. 1999). “Permitting suit

against officers who have acted reasonably when

there is reason to fear would create exactly the wrong

incentives. Indeed, if the officers had done nothing,

and [someone] had been injured, they would have

faced the threat of suit.” Jd. at 51.

93a

Ill. THE OFFICERS’ USE OF FORCE WAS

OBJECTIVELY REASONABLE UNDER THE

CIRCUMSTANCES. THEREFORE, THEY

ARE ENTITLED TO QUALIFIED IMMUNITY.

In Plaintiffs’ sixth claim for relief they claim that

the Officers’ use of force was objectively unreasonable

given the totality of the circumstances existing at the

time. Complaint, 148. As previously discussed, it was

objectively reasonable for the Officers to enter the

apartment fluent. The pertinent question now is

whether the force used by the Officers, given the

force used by Herring against the Officers, was rea-

sonable. Applying the appropriate reasonableness

standard, it cannot be held that the Officers’ actions

were so deficient that no reasonable officer could

have acted in the same way.

After Officers Carroll and Ambuehl entered the

apartment Officer Carroll proceeded to the bedroom,

where Herring was located, while Officer Ambuehl

checked the remainder of the apartment for other

people. Exhibit C, 710, Exhibit D, 9912-13. Upon

Officer Carroll entering the bedroom, Herring became

aggressive. Herring threw items at Officer Carroll

and then approached Officer Carroll. Exhibit C, (11.

After Herring would not stop as ordered, Officer

Carroll sprayed Herring one time with O.C. spray. Jd.

A reasonable officer in Officer Carroll’s position could

have believed that Herring was threatening the

officer’s safety by his violent acts and failure to stop

when ordered. Further, an officer may use force in

self-defense when threatened with physical harm.

See Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct.

1694, 85 L.Ed.2d 1 (1985) (deadly force may be used

if “officer has probable cause to believe that the sus-

pect poses a threat of serious physical harm either to

94a

the officer or to others”); Romero v. Board of County

Com’rs, 60 F.3d 702, 704 (10th Cir. 1995) (“An offi-

cer’s use of deadly force in self-defense is not con-

stitutionally unreasonable”). Officer Carroll’s use of

force in self-defense was not deadly, and was reason-

able under the circumstances.

Herring then charged and attacked Officer Carroll.

Exhibit B, (18, Exhibit C, 1912-14; Exhibit D, 715.

At this time, the physical fight escalated and became

increasingly intense.. The situation was clearly “rap-

idly evolving.” There was no time for the Officers to

reflect as Herring became increasingly violent. See

Graham, 490 U.S. at 307 (“officer’s actions are not to

be assessed with 20/20 hindsight” when faced with

the need to make instantaneous decisions). Officers

Darress and Ambuehl then came to Officer Carroll’s

aid and all three Officers fought to restrain Herring.

Exhibit B; Exhibit C; Exhibit D. While it is true that

the Officers struck Herring, each act of force used by

the Officers was in response to Herring’s violent

actions. Herring grabbed the Officers’ testicles and

squeezed, bit the Officers, reached for the Officers’

PR-24 and gun, and continually tried to get up to

further attack the Officers. In short, the Officers

reasonably responded to Herring’s attacks. Id.

The present case is directly on point with the case

of Caricofe v. Mayor and City Council of Ocean City,

Maryland, 32 Fed.Appx. 62 (4th Cir. 2002). Caricofe

involved an incident where a motel desk clerk called

the police to report that a large naked man was in

the hallway on the seventh floor jumping around,

banging himself against the walls, and banging on

guestroom doors. Officer Howard arrived and ob-

served Caricofe acting like he was “strung out on

some kind of drug.” Officer Howard decided that

‘95a

Caricofe needed to be detained before someone got

hurt, so he called for back-up. Officer Howard then

attempted to engage Caricofe in conversation, but

received no response.

Sergeant Braeuninger and Officer Jones soon ar-

rived. The officers decided to subdue Caricofe because

he was a danger to himself, other hotel guests and

the officers, and then call for medical assistance.

Officers Howard and Jones approached Caricofe and

placed a handcuff on each wrist and tried to bring the

cuffs toget

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