617 F. App'x 867
10th Cir.2015Background
- Plaintiff Michael Waugh, proceeding pro se, sues for civil rights violations after being shot by Joshua Dow, a private citizen armed by Deputy Justin Dow and aided in apprehension.
- Deputy Dow, off duty, agreed to assist, gave Joshua his gun and badge, and directed him to enter the woods to locate Waugh, while Dow positioned on the opposite side.
- Waugh was located in woods; Joshua Dow shot Waugh in the leg, injuring him; the incident occurred during an attempted apprehension following a 2010 arrest warrant.
- The magistrate judge and district court considered whether Deputy Dow’s conduct could be evaluated under a state-created danger theory and whether qualified immunity applied.
- The court treated disputed deliberation time as a factual question, concluding there was enough time for actual deliberation to apply a deliberate-indifference standard, and held that summary judgment on the state-created danger theory was inappropriate at this stage.
- The panel affirmed the district court’s denial of summary judgment on the state-created danger theory, noting that the weight of the evidence could show conduct that shocks the conscience, and that qualified immunity was not clearly established given the circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Deliberate indifference vs. intent to harm standard | Dow’s time to deliberate warrants deliberate indifference standard. | Lewis requires intent to harm, not deliberate indifference, in some cases. | Deliberate indifference standard applied; not an intent-to-harm rule. |
| State-created danger theory viability | District court properly applied state-created danger theory to hold liability. | Theory should be limited or misapplied to private violence. | State-created danger theory viable; district court’s application affirmed as to facts alleged. |
| To what extent the facts support recklessness/conduct shocking the conscience | Facts show conscious disregard and extreme risk to Waugh. | Facts do not demonstrate recklessness to shock the conscience. | Facts could support recklessness and conscience-shocking conduct; jury could find in plaintiff’s favor. |
| Authority to enlist private citizen assistance | Deputy Dow had authority to seek citizen assistance and deputize Joshua. | No explicit Sheriff authorization to arm or deputize Joshua; authority to request assistance exists but not to deputize or arm. | Deputy Dow had statutory authority to request assistance, but no specific authorization to arm or deputize Joshua; nonetheless, this does not bar constitutional liability on the facts. |
| Qualified immunity and clearly established law | Right was clearly established; officers could be liable. | The rights were not clearly established in this exact citizen-assistance scenario. | The right was clearly established under the state-created danger and deliberate-indifference theories; immunity not warranted at this stage. |
Key Cases Cited
- Aldaba v. Pickens, 777 F.3d 1148 (10th Cir. 2015) (de novo review of purely legal issues in qualified immunity appeal)
- Green v. Post, 574 F.3d 1294 (10th Cir. 2009) (deliberate indifference standard in state-created danger context; extreme risk)
- Perez v. Unified Gov’t of Wyandotte County/Kansas City, Kan., 432 F.3d 1163 (10th Cir. 2005) (deliberate indifference standard in shock-the-conscience analysis)
- Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) (summary judgment standard; credibility not required to be believed)
- Hope v. Pelzer, 536 U.S. 730 (2002) (novel factual circumstances can still give notice of constitutional violation)
- Thomas v. Kaven, 765 F.3d 1183 (10th Cir. 2014) (clear establishment of rights can be shown without identical facts)
- Shroff v. Spellman, 604 F.3d 1179 (10th Cir. 2010) (clear standard for clearly established rights in context of egregious conduct)
- Lewis v. Tripp, 604 F.3d 1225 (10th Cir. 2010) (reviewing district court’s fact findings in qualified immunity appeal)
- Gray v. Univ. of Colo. Hosp. Auth., 672 F.3d 909 (10th Cir. 2012) (state-created danger framework elements and analysis)
- Armijo ex rel. Chavez v. Wagon Mound Pub. Sch., 159 F.3d 1253 (10th Cir. 1998) (precedent on state-created danger and qualified immunity)