489 F.Supp.3d 1192
D. Colo.2020Background
- On Sept. 21, 2018 Lakewood officers responded to a 911 call reporting Spencer Erickson hiding in an attic; the caller did not allege violence and officers knew Erickson had no violent history but had three misdemeanor warrants.
- Officers devised a plan to apprehend Erickson using K-9 Finn, a dog known to be dangerous from prior incidents; Officer Baggs called and texted Erickson warning that a K-9 would be deployed.
- Officers released Finn into the residence; Finn located Erickson upstairs and bit his neck causing deep lacerations, muscle tears, vocal-cord damage, scarring, and PTSD.
- As Officer O’Hayre tried to pull Finn off, Officers Richards and Christensen restrained Erickson’s hands; Baggs had participated in formulating and approving the apprehension plan.
- Erickson sued under 42 U.S.C. § 1983 for excessive force (against O’Hayre, Baggs, Richards, Christensen), conspiracy to use excessive force (against all individual defendants), and Monell municipal liability against City of Lakewood.
- Defendants moved to dismiss; the court denied dismissal of excessive-force claims as to O’Hayre, Baggs, Richards, Christensen, dismissed the conspiracy claim as to Terrana and Bleak, and dismissed the Monell claim with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether officers other than O’Hayre can be liable for excessive force (personal participation) | Erickson: Baggs helped plan and warned of K-9 (so had role); failure-to-intervene or supervisory liability | Defs: Only O’Hayre controlled/released the dog; others lacked personal participation or ability to intervene | Court: Baggs survives under failure-to-intervene theory (sufficient opportunity/allegations) |
| Whether Richards and Christensen may be liable for excessive force | Erickson: They each restrained his hands during the attack, preventing escape and exacerbating injury | Defs: Holding arms during arrest is minor force and not unconstitutional | Court: Survives — allegations that they restrained his hands while K-9 attacked sufficiently plead personal participation |
| Whether conspiracy to use excessive force is plausibly pled against all individual defendants | Erickson: Officers conferred, agreed on a plan to send unsupervised K-9, each had assigned roles and acted in furtherance | Defs: Only O’Hayre took acts directed at force; allegations are conclusory and lack meeting-of-minds | Court: Conspiracy claim survives as to O’Hayre, Baggs, Richards, Christensen; dismissed as to Terrana and Bleak for lack of nonconclusory conduct in furtherance |
| Whether Monell municipal-liability claim is plausibly pled (policy/custom, ratification, failure to train) | Erickson: City’s review and non-discipline ratified conduct; training/policies permitted improper K-9 deployment | Defs: Complaint fails to identify any policy, final policymaker, or pattern showing deliberate indifference | Held: Monell claim dismissed with prejudice for failure to plead an official policy, ratification by identified final policymakers, or a failure-to-train pattern |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (liability requires factual allegations showing constitutional violation)
- Harlow v. Fitzgerald, 457 U.S. 800 (qualified immunity framework)
- Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658 (municipal liability under § 1983)
- Beedle v. Wilson, 422 F.3d 1059 (§ 1983 liability requires personal participation)
- Fogarty v. Gallegos, 523 F.3d 1147 (failure-to-intervene and supervisory liability principles)
- Marquez v. City of Albuquerque, 399 F.3d 1216 (police dog use can constitute excessive force)
- Mick v. Brewer, 76 F.3d 1127 (elements of failure-to-intervene)
- Priester v. City of Riviera Beach, Fla., 208 F.3d 919 (timing/opportunity to intervene in K-9 context)
- Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504 (conspiracy pleading requires more than conclusory allegations)
- Bryson v. City of Oklahoma City, 627 F.3d 784 (forms of municipal policy and ratification)
- Connick v. Thompson, 563 U.S. 51 (failure-to-train deliberate indifference standard)
- City of Canton v. Harris, 489 U.S. 378 (municipal failure-to-train liability framework)