Carabajal v. City of Cheyenne, WY

wholly process. due This is insufficient CARABAJAL, Mathew Mathew K. See,

demonstrate a constitutional violation. a/k/a Carabajal Jacoby; V.M.C., by a minor Connor, e.g., Selby, Garrett v. Maddux & through parents and next 2005) Janer, friends, Mathew and Ariana (holding “conclusory allegations Martinez, Plaintiffs-Appellants, any legal no citations to the record or authority for support” plaintiff disentitled review). CHEYENNE, WYOMING; CITY OF Of Thornton; Sutton, ficers Josh Michael Therefore, we affirm the court’s district capacities, in their individual Defen grant summary judgment Washing- on dants-Appellees, liberty

ton’s interest claim. B. State Contract Law Claim Cheyenne Department; Police Officers Johnston; Colson, Pat Matthew Washington’s sole state law claim is that Defendants. he is entitled to reinstatement with back No. 15-8139 pay, County because the breached an im- plied poli- contract created its written Appeals, United States Court of already cies. Because we have concluded Tenth Circuit. Washington failed to establish the Coun- February Filed ty’s policies conduct or created an implied contract, employment supra see Section

II.A.2, agree we with the district court County summary is entitled to

judgment Washington’s breach of con-

tract claim.

III. Conclusion reasons, foregoing

For the we AFFIRM

the district granting court’s order the de- summary

fendants’ motion for judgment

on all claims. of, initial court’s dismissal and later

trict summary in favor of grant judgment on, negligent Plaintiffs’ claims of hir- Having jurisdic- ing of Officer Thornton. § we affirm. tion under 28 U.S.C.

Background appeal This arises out of an officer-in- (and Lopez Alicia C. Carolyn M. Nichols shooting early morning hours volved Rothstein, Donatelli, Dahlst- Hughes, approximately At September 2011. L.L.P, Bienvenu, Al- rom, Schoenburg & a.m., 3:50 Wolf, Mexico; New Richard buquerque, individuals, containing other vehicle three brief), for Cheyenne, Wyoming, on the V.M.C., including his infant son when he Plaintiffs-Appellants. by that he followed being noticed was (and Ray Norman William S. Helfand lights vehicle with and siren acti- police its Hrdlicka, White, Chamberlain, Giles of vated. Mr. drove for several Houston, Texas; P.C., Aughtry, Williams & blocks. Other officers were notified and Cannon, Mark Stewart of Davis & J. Although reported scene. facts brief), L.L.P., Cheyenne, Wyoming, on the in greater detail below are discussed Defendant-Appellee City Cheyenne, of for Carabajal pulled pertinent, ultimately Mr. Wyoming. over, cars, police the officers their exited (Kenneth Shurtleff, Lyman E. H. Lance in stepped and Officer Thornton front of Evans, D. of Hall & and Jacob Massee Carabajal’s thereafter, Mr. vehicle. Soon brief), Denver, Colorado, L.L.C., for on the Carabajal’s began vehicle to move for- Defendants-Appellees Officers Joshua ward. Officer Thornton then fired two Thornton and Michael Sutton. his shotgun rounds from at Mr. KELLY, MATHESON, and Before time, injuring severely him. At that V.M.C. McHUGH, Judges. Circuit vehicle, in was still secured a car passenger. seat behind the front Officers KELLY, Judge. Circuit subsequently Thornton and Sutton re- Plaintiffs-Appellants Mathew moved Mr. from the vehicle. son, V.M.C., Mathew and through and his Plaintiffs sued City, its de- mother, Martinez, appeal Arianna V.M.C.’s officers, including and four partment, Offi- in favor judgment from the district court’s Sutton, cers Thornton and in their individ- Defendants-Appellees Officers Joshua of capacities, asserting ual several claims. On Sutton, and Defen- Thornton and Michael by a motion the City, the district court (“the City danb-Appellee Cheyenne prejudice without dismissed V.M.C.’s claim appeal, challenge the City”). On Plaintiffs unlawfully that he was when seized grant district court’s of a motion to dismiss into Thornton shot the vehicle which he Amendment un- Fourth claim of Plaintiffs’ occupant. an It granted summary later lawful seizure of Officer Thorn- V.M.C. claims, on other judgment finding ton when he shot into the vehicle qualified immunity officers were entitled to occupied. challenge V.M.C. Plaintiffs also claims, Carabajal’s on excessive force grant summary in favor of judgment complaint plead negli- that the did not upon the officers based gence alleged negligent claim based on the Carabajal’s as to excessive Thornton, and, if Finally, hiring the dis- of Officer even it challenge claims. Plaintiffs did, City judgment purposes was entitled to of ruling on a motion for negligence summary as a matter of law on the claim judgment.”). evidentiary support. due to a lack of Cara Here, the events captured were bajal Cheyenne, No. 2:14-CV- video, Scott, and, as in there are no allega 0188-SWS, (D. Wyo. 2015 WL 9906393 tions that footage has been doctored or 2015). Though Dec. V.M.C.’s unlawful altered. Accordingly, rely we on this evi seizure claim was preju dismissed without herd, dence though we are mindful that dice, for practical purposes we think that the video evidence did not capture all that the district court intended to bar the en occurred. relying While on this video foot remaining tire action it granted when age, we continue to view the evidence in hence,

judgment; judg we have a final light most Carabajal. favorable to Mr. Moya Schollenbarger, ment. 465 F.3d Durastanti, See Thomas v. 2006). 444, 448-51 Viewed in that light, Discussion partner, their infant son Quali- A. Excessive Force Claims V.M.C., and Mr. Carabajal’s cousin. His Immunity fied partner sat next to him in passenger seat, We first turn to Mr. chal- while his cousin sat in the back with V.M.C., lenges respect grant who was quali- of secured in a car seat. At point, they fied on his some a police excessive force noticed car fol- lowing Johnston, them. claims. Officer who was car,

driving the activated his emer- 1. Relevant Facts gency lights and Carabajal sirens and Mr. stop.1 During time, did not this Mr. Cara-

To assess the constitutionality of bajal obeyed the speed limit and used his actions, the officers’ we rhust first deter (Officer turn signals. Aplt. 1 App. 229 Harris, mine the relevant facts. Scott v. 1:12-2:29). Johnston’s dash cam at Officer 372, 378, 1769, 127 S.Ct. 167 Johnston reported “running” a car and (2007). L.Ed.2d 686 Although there are noted that there occupants were three in some differences in parties’ the accounts of (1:15-2:38). the car. Id. After occurred, what we must view the facts and approximately turning six blocks and sev- draw reasonable light inferences times, eral Mr. pulled over and most Carabajal, party favorable to Mr. 2:25-38). stopped (1:15-16, the vehicle. Id. opposing summary judgment. Id. Howev pulled Officer Johnston over to the rear of er, clear, ignore contrary we cannot video the vehicle and instructed Mr. depicting evidence the record the events occupants and the other run and to they 380, occurred. at See id. 127 S.Ct. keep their hands out of the window. Id. (“When 1769 opposing parties tell two dif (2:37-53). stories, ferent one of blatantly which is record, contradicted thereafter, so that no rea Soon Officers Thornton and it, jury sonable could scene, believe a court parked Colson arrived at the and adopt should not that version of facing the facts their vehicles in the street Mr. Car- pull 1. Mr. might jail. elected not to over ini- that he have to return to tially give because he wanted his cousin "a 2015 WL at *1 Mr. Caraba- run,” course, fair chance jal's deposition testimony). as his cousin ‘‘freak[ed] Of the offi- being out” when he noticed Carabajal’s were fol- cers were unaware of Mr. motiva- by police expressed lowed a car and concern tion. (3:17). fully entire out of noting body Id It bears until his abajal’s vehicle. (10:40-48). Id. Thornton and Colson were vehicle. that Officers of pursuit in the initial not involved Analysis 2. Both officers exited Carabajal’s vehicle. After Mr. Cara- respective vehicles.

their the district court’s We review opened passenger the back bajal’s cousin summary judgment of based on grant out, Thornton hands Officer with his door qualified immunity de novo. Fisher Carabajal’s of Mr. vehicle. in front Cruces, (10th moved Las 584 F.3d (Officer at Colson’s dash cam 3:23- Id. 2009). asserts When defendant the door opened then immunity, the court must conduct two- momentarily put foot outside of the Callahan, analysis. part Pearson into the car stepping back vehicle before 223, 232, 808, 172 L.Ed.2d U.S. (3:28-30). Id. 229 shutting door. (2009). First, must a court determine subsequently cousin exited plaintiff alleged has whether facts to (3:45-50). Id. the vehicle. á of a demonstrate violation constitutional Second, right. Id. if such a demonstration time, the same approximately At made, is the court must then decide wheth shouted, shotgun aimed Thornton with his right “clearly at er issue was estab vehicle, car or I’ll at the “Don’t start the at reviewing lished” time. Id The (3:42). 28, 248 car then Id. The shoot.” may steps in court address the either or slowly forward toward middle moved Id. at The der. 129 S.Ct. 808. burden street, and in of Officer of the the direction making two-part showing this lies with (3:44- (3:50-53); Id. 229 id. 248 Thornton. Carabajal. plaintiff, See Hobbs ex (Officer 46); App. 671 Aplt. Thornton’s Zenderman, rel. Hobbs v. 579 F.3d 3:16-18). Approximately three dash cam 2009) (citing Serna v. Colo. for- began moving after the car seconds Dep’t Corr., 1146, 1150 ward, Thornton toward stepped 2006)). heavy This burden. If is the street in front of Mr. middle of and satisfy part fails to plaintiff either of the Carabajal, and fired rounds at him. 1 two inquiry, grant qualified court must im (3:47-48); (3:53); 229 Aplt. App. id. 248 munity. Holland rel. Overdorff v. ex Har (3:19-20). The car continued Aplt. App. rington, for to move forward several seconds and stopped, though it not clear from then is the video evidence how this occurred. 1 Here, Carabajal has alleged Mr. (3:53-4:03). clear, is

Aplt. App. What that Officers Thornton and Sutton violated however, stop that both to is officers tried through rights his Fourth Amendment from roll forward continuing the car use of excessive force. The Fourth Amend against bumper their feet of putting protects against ment individuals “unrea (3:50-55). Id. 248 the vehicle. seizures.” sonable searches and U.S. Const, later, opened

A minutes the officers amend. To state a claim few IV. for door, Carabajal side as Mr. excessive force the Fourth the driver’s under Amend ment, plaintiff in the Id. 229 demonstrate remained driver’s seat. must that a (8:48). that Officer Sutton removed Mr. Caraba- “seizure” occurred and seizure Cty. jal vehicle, during from the which Mr. was “unreasonable.” Brower of Inyo, (10:25-29). Carabajal to the ground. fell Id. (1989). slowly and Sutton Thornton then L.Ed.2d 628 The reasonableness of

Officers legs, depends why or dragged Carabajal, lifting Mr. a seizure on when it keep seizure was made and how was accom dered to his hands out of the window Fisher, plished. 584 F.3d at 894 vehicle, and not start Carabajal Mr. Connor, 386, 395, Graham v. U.S. 109 appeared deliberately drive his vehicle (1989)). 1865, 104 S.Ct. L.Ed.2d 443 in Officer Though Thornton’s direction. street, an open two units were fac- Here, there are two claims of excessive Carabajal’s vehicle, ing Mr. (1) with another force: shooting Officer Thornton’s (2) Carabajal. unit behind Mr. Carabajal, Officer Thorn- Mr. and Officers Thornton and ton subsequent positioned facing Sutton’s removal of Mr. was the oncoming Carabajal from the vehicle after he was parked vehicle with two closely cars be- Carabajal shot. Mr. contends that each Thomas, hind him. As in 607 F.3d at 665- action was a seizure that was unreason- 66, in these quarters, close a reasonable able, thereby violating a constitutional officer could conclude that his or her life right, and that the right constitutional was in danger was and employ deadly force to “clearly established” at the time of the stop the vehicle. alleged respond misconduct. The officers Carabajal Mr. maintains that this case is summary judgment appropriate, was distinguishable from Thomas because the objectively because it was reasonable for scene did not quarters, involve close deadly Officer Thornton to use force when was not toward the Carabajal’s vehicle moved forward and officers, particularly given his alternative officers to both remove Mr. explanation that the forward movement of from the after comply vehicle his failure to the vehicle According was unintentional. Additionally, with their directives. “beyond suggests contend that it is not evidence debate” unreasonable, brake, the officers’ conduct was his foot came off merely that he thereby demonstrating that the law was placed the park, vehicle drive from or clearly established. that he was hearing vary- confused due to ing commands from the officers—not that each

We address excessive force claim he argues accelerated. He further that he turn. crime, charged was never with a that he Mr, Shooting a. moving slowly of little threat others, safety and that Officer first contends Offi Thornton’s reckless or deliberate conduct cer Thornton used excessive force when he contributed to the force employed. Mr. stepped toward Mr. vehicle Carabajal also contends that when Officer and fired shotgun two rounds from his at Carabajal, Thornton shot Mr. Carabajal. Officer The district court relied case, only Carabajal factually a similar Thomas v. Thornton knew that Mr. Duras tanti, 2010), in yield had failed to to Officer Johnston or concluding that the use of force in this immediately respond to to commands exit case was reasonable. 2015 WL the portrays vehicle. He Officer Thornton 9906393, at *6-7. The district court also overreacted, having placing after him- negated concluded that Thomas the con in path self of Mr. vehicle tention that at the conduct issue violated approaching rather than from behind. Ac- clearly established law. Id. at *7. We cordingly, Carabajal jury contends a agree. could conclude that the officers were not in danger, that and Officer Thornton’s actions

The video evidence confirms that Mr. police police had eluded were not ones that a reasonable several blocks pulling being before over. After or- officer would have taken. As Id. at 669 persuasive. not nature of his conduct is unlawful.

These distinctions are omitted). above, (citations position precedent of Officer must discussed Such vehicles, as evi- relative to the question Thornton of the reasonable- put have videos, by the that the scene denced shows “beyond of the officer’s conduct de- ness — evidence quarters. close The video Luna, involved U.S.-, Mullenix v. bate.” was further demonstrates that the vehicle (2015) 308, 193 L.Ed.2d 255 S.Ct. direction, in and moving Officer Thornton’s al-Kidd, (citing Ashcroft v. perceived officer have a reasonable could 179 L.Ed.2d Carabajal’s driving was deliber- that Mr. (2011)). that Mr. apparent ate. It was above, in As discussed this court Thom- of he intention- police presence; had notice that officer was as determined an entitled police slow-speed a on a ally eluded officer in a situation involv- qualified immunity before chase in the dark for several blocks ing suspects fleeing relatively at low makes it finally pulling over. The video speeds,, given physical of threat serious Carabajal initially complied clear that Mr. by a posed moving harm car in the offi- vehicle, then attempted to exit the but cer’s direction. See 607 F.3d at 670-71. warned Mr. got back in. Officer Thornton The existence this decision alone seems Carabajal not to start the car or he would Carabajal’s argument to foreclose that Carabajal’s equivocal Given Mr. shoot. the unlawfulness Officer Thornton’s con- directives, when the compliance established, clearly and the duct was cases began advancing toward Officer vehicle upon which Mr. relies do not Thornton, to stand required he was not alter that conclusion. noted hope for the best. As we down Thomas, Supreme right regain argues an a that the in officer has moving sug- in these circumstances decision Luna control Court’s Mullenix v. at proximity in closer to the vehicle. Id. qualified immunity is more lim- gests 670. Because the fact that the vehicle was where at ited cases the driver travels slowly moving does not eviscerate But speed. accepting low even this infer- threat, 670-71, say at cannot M we accurate, it say ence as suffices to that an unreason- Officer Thornton’s conduct was put implication cannot the unlawfulness of able.2 beyond certain conduct debate. We also whether con- question Officer Thornton’s if con Even Officer Thornton’s here any troubling duct at issue more force under the duct constituted excessive granted than that of the officer who was Amendment, clearly it es Fourth in Mullenix. From an shooting that tablished at the time of the 1-27, 20 feet overpass above officer unlawful. Thornton’s conduct was at a fleeing traveling fired six shots vehicle Supreme Court or Typically, preexisting hour, per inadvertently killing decision, 85 miles weight Tenth Circuit or driver, circuits, it all in an the vehi- authority from other must make effort disable 306-07, that the apparent to a reasonable officer cle. 136 S.Ct. 312. "clearly by part this court’s

2. Our conclusion is not far as established law” altered Pauly White, (as immunity analysis F.3d 1060 decision in 814 to one of the reh'g denied, Cir.), (10th involved). (10th may, F.3d 715 Be that as it we view 817 officers U.S.-, per curiam, Pauly 2016), factually distinguishable: vacated Cara- Cir. 580 as Mr. (2017), bajal S.Ct. 463 which was aware on L.Ed.2d officers scene Carabajal with supplemental Mr. au- were affiliated law enforcement and submitted no thority App. suggest Carabajal questioned 28(j), under Rule Fed. R. P. Of facts that Mr. course, authority this court's vacated inso- of those officers. decision was Carabajal also Mr. relies three deci- force when removed him from the sions from other circuits to contend that vehicle after he had been shot. He con- Officer Thornton was on fair notice of the tends that the video evidence of the offi- unconstitutional nature of his conduct.3 cers’ conduct and the words of Officer cases, however, factually Such are too dis- describing Sutton police incident to speak clearly tinct to to the situation Offi- investigators support this claim. According cer Thornton confronted. Mr. While Cara- Carabajal, to Mr. the video evidence dem- bajal’s disputes cases involved of material “yank[ed] onstrates that Officer Sutton an position fact as to the police officer unresponsive Carabajal Mr. out of his ve- relative to the vehicle at issue and there- hicle and propel[led] him out into the officer, posed fore the threat head-first, street enough force that clearly video evidence here shows Officer Carabajal’s wounded head [fell] hard positioned path Thornton was in the of Mr. upon pavement.” Aplt. Br. at 41. Mr. Carabajal’s vehicle as it lurched forward. Carabajal asserts Officer Thornton then factually Even if these cases were not helped Officer Sutton “shove the rest of distinguishable, they are insufficient to limp body out into the weight authority demonstrate that the street, after which Thornton drag[ged] Mr. it apparent makes that Officer Thornton’s away several feet from the vehi- unreasonable, particularly conduct was through street, cle and by a single light of our decision in Thomas and the handcuffed wrist.” Id. Mr. fur- Eleventh Circuit’s decision in Robinson v. argues ther that Officer Sutton’s charac- Arrugueta, 2005). 415 F.3d 1252 Cir. removal, terization of the including his ob- Robinson, In the court held that it was servation that Mr. was “limp” deadly reasonable an officer to use “gurgling and a lot of blood and stuff’ stop force to a slow-moving vehicle advanc- “grabbed” before he him gave him “a direction, ing in his that clearly estab- good tug,” evinces additional evidence of a lished law did not indicate Id. at otherwise. genuine dispute of material fact. 41- Id. at 1254-57. (citing Aplt. App. According however, emphasize, We our hold- the issue is whether the ing is not a blanket rule that a police ostensibly rough officers’ removal of his qualified immunity officer is entitled to body justified by safety their con- whenever he or deadly she uses cerns. against the driver of a vehicle that is mov- The excessive force claim is belied ing the direction of the officer or other the video evidence. This evidence does not individuals. The determination of qualified yanked show that Officer Sutton Mr. Cara- heavily remains dependent on bajal out of propelled the vehicle and him light unique the claim in of the circum- ground, nor that Officers Sutton and above, stances of each case. As discussed body dragged Thornton shoved his or it in particular we conclude this claim warrants (10:25- rough Aplt. App. manner. 1 qualified immunity. 48). The officers did not use an unreason- b. Removal from the Vehicle force, making able amount of this case Fisher, distinct from argues also 895- Of (denying qualified immunity ficers Thornton and Sutton used excessive 96 Enyart, (3d 1999); Aplt. 3. Br. at 36-38 Cowan ex rel. Cir. Estate of Starks v. Cooper Breen, (2d 1993)). Estate of 352 F.3d 756 F.3d 230 Raso, 2003); Abraham v. 183 F.3d 279 California, Supreme In Brendlin v. plaintiffs a knee placed who officers body subjects arms behind his both leverage stop his that a traffic back to Court held laying on the him he was handcuff while to any passenger to a seizure. the driver and injuries exacerbating the thereby ground, 257-58, 2400, 249, 127 S.Ct. nor was it biceps), his stomach to (2007).Thereafter in Plumhoff L.Ed.2d 132 circumstances for under the unreasonable 2012, Rickard,-U.S.-, v. Carabajal from remove Mr. the officers to (2014), n.4, 188 L.Ed.2d removal, the time of the vehicle. At the disagreement among fed noted the Court that Mr. aware officers were an as to whether appellate eral courts that he had non-compliant, been had seized an passenger automobile is when inconsistent in a manner his vehicle used deadly against force the driver officer uses at least twice. Cf. police instruction Br. at 20-21. Aplt. Some of the vehicle. Frazier, 1200, 1204-05 F.3d Mecham v. the intent re interpreted have circuits 2007) (10th that it was a (finding Cir. mean that in Brower to quirement arresting that a conclusion” “foregone objective intent must have had the officer require would of a vehicle driver individual, other stop particular a while to non-compliance). It was given the driver’s require it to interpreted circuits have to for the officers elect not unreasonable way act in such a objective intent to the. vehicle under remove him from stop result —a causes the intended circumstances, injuries notwithstand —re Compare, e.g., target. Lan gardless of the ing. Cosme, 791, 906 F.2d dol-Rivera v. Cruz Carabajal has not dem- Accordingly, Mr. (1st 1990) (holding pas that a 794-96 Cir. a constitutional a violation of onstrated accidentally shot- senger who was Thornton and Sutton and Officers right, officer did not have a Fourth police immunity on the are entitled to the officer’s in Amendment claim because claim. excessive force driver, fleeing tent was to shoot the B. Seizure Y.M.C. Vaughan Cox, with, e.g., passenger), (11th 2003) challenge Plaintiffs also the dis Cir. 343 F.3d 1328-29 was un missal of their claim V.M.C. who was acci (holding passenger that a lawfully by Officer Thornton when seized dentally subjected to a Fourth shot was into the vehicle that directly he shot the officer Amendment seizure because sufficiency As the of a occupied. V.M.C. car). weapon stop fired his law, question is a we review complaint Arapaho, In this Childress 12(b)(6) Rule dismissal the district court’s hostages were court held that two who Carris, novo. Duran v. 238 F.3d de being pursued by 2001). passengers a vehicle police were not seized when above, to state a As discussed vehicle, inadvertently shots at the fired force under the Fourth claim of excessive hostages. wounding Amendment, must show both V.M.C. Plaintiffs main- 1156-57 that the seizure a “seizure” occurred and distinguishable tain that Childress is be- Brower, U.S. at “unreasonable.” police attempting cause it involved the “governmental 109 S.Ct. 1378. The dangerous situa- hostages deliver from freedom of movement” must termination of However, we need not address wheth- tion. intentionally ap “through be made means holding in extends to (em er our Childress 596-97, Id. at 109 S.Ct. 1378 plied.” omitted). like V.M.C. passengers phasis may affirm the district court’s for what perceive Regard- as a hint. We less, judgment any ground as to this claim on a hint as to what the may law be Gaming Corp. supported by record. GF cannot substitute clearly for established City Hawk, Mullenix, of Black 405 F.3d 882 law. See 136 S.Ct. at 309. As (10th 2005) Comp USA, Cir. Issa v. unequivocally Plaintiffs acknowledge, the 2003)). 354 F.3d simply clearly law is not established. pursuing municipal Plaintiffs are not a lia Negligent Hiring C. of Officer Thorn- bility any claim based on seizure of V.M.C. ton Aplt. Reply atBr. 7 n.7. As to the individu Plaintiffs also challenge the dis Thornton, liability al of Officer we note trict court’s dismissal of negligent their qualified that he raised the defense of hiring against claim City, as well as answer, in his ECF 38 at the court’s alternative ruling granting pursued byit motion after this claim was summary judgment in favor of the 1 Aplt. App. dismissed. 125-32. con We Duran, the claim. We review de novo. that, clude if pled plausi even Plaintiffs a (Rule 12(b)(6)dismissal); F.3d at 1270 Coo ble unreasonable seizure claim as to perman David, 1162, 1164 V.M.C., Officer Thornton would be entitled 2000) (summary judgment). Because immunity. to qualified This is so because summary judgment we find that prop Plaintiffs cannot demonstrate that the law below, er for the reasons discussed we clearly established a seizure of need not sufficiency address the of the occurred in Y.M.C. these circumstances. pleading. Pearson, 232, 129 See atU.S. S.Ct. 808 (discussing requirements qualified for Wyoming The Governmental

immunity). provides Claims Act a cause of action deciding

We are comfortable legal this against governmental entity damages issue on immunity given Plain- arising from tortious conduct of its officers critique tiffs’ of the law in contained their acting scope within the of their duties. opening brief: § Wyo. Wyoming Stat. Ann. 1-39-112. law yet

The Tenth Circuit has to address recognizes negligent further the tort of pro- whether the Fourth Amendment hiring, entity may which an be liable for tects an passenger automobile seized agents entity the conduct of its if the is during deadly against the use of force negligent employment or reckless in the ap- the driver. Other circuit courts of improper persons poses in work that a risk peals are divided on the issue. The Su- Energy of harm to others. See Basic preme split Court noted the in the Servs., Mgmt., L.P. v. Petroleum Res. Plumhoff, specifically Corp., Circuits but 2015) (cit (Wyo. 343 P.3d “express[ed] no view on this question.” (Second) ing Agency Restatement However, the Plumhoff Court hinted at 213(b) (Am. 1958)). § Law Inst. Plaintiffs forward, way noting that in a previ- improperly contend that the district court County case, ous of Sacramento v. disputes resolved factual Lewis, the passenger Court held that a suitability given Thornton’s the excessive “could recover under a substantive due ignored allegations evidence of only process theory had a negligent hiring. Such evidence includes if officer purpose to cause harm unrelated to attempts being unsuccessful hired at legitimate object of the arrest.” agencies, other law enforcement un (citations omitted). use, Aplt. charged drug Br. at 20-21 the need for a more We predicate background investigation given doubt Plaintiffs have the factual extensive J., MATHESON, concurring indiscre- recency of certain the nature up. tions, lack of follow and a join panel opinion regarding I claims and Carabajal’s excessive force hiring im negligent The tort of hiring claim. As to negligent Plaintiffs’ employee liability in cases where poses claim, I con- unreasonable seizure V.M.C.’s a member of intentionally against acts following ground: in the result on the cur knew or either employer The public. seized, not see or Y.M.C. Whether employee that have known should 261, 249, California, v. Brendlin others, thereby exposing the injure might (2007) 2400, 168 L.Ed.2d 132 dangerous individu potentially to a public passengers (recognizing that both Sys., Inc., Transp. Molalla al. Connes when use force to drivers are seized 1992) (en (Colo. 1316, 1320-21 831 P.2d car), from our conclusion stop a it follows Corp. banc); v. The Lindeman see also reasonably Thornton acted that Officer of Jesus of the Church the President reasonable. any seizure of V.M.C. was Latter-Day Saints, F.Supp.3d Christ of 2014) Raleigh (D. 1197, Colo. Heating, Plumbing &

v. Performance (Colo. 2006)).4 Plaintiffs do

P.3d in an City engaged dispute into investigation5

extensive background qualifications and

Thornton’s under he demonstrated employment as a Wyoming standards FELIX; Coone, B.N. Jane importantly, the evi police officer. More Plaintiffs-Appellees, no upon by Plaintiffs shows dence relied put characteristic that propensity or Thornton was City on notice that Officer BLOOMFIELD, OF CITY unnecessary or excessive likely to use Defendant-Appellant. public. Cf. against a member of Liberty Counsel, Amicus Curiae. Lindeman, Plaintiffs’ F.Supp.3d at 1209. admissibility of evi regarding cases No. 14-2149 support negligent drug dence of use to Appeals, Court of United States persuade us to the hiring claim do not Tenth Circuit. contrary. factfinder could No reasonable that Offi conclude that it was foreseeable February Filed unnecessary or would use cer Thornton Thus, owed no excessive force. Plaintiffs as have

legal duty protect 1210; Lucero v. Hol alleged. See id. Bechtold, ACLU of New Mex- Elisabeth brook, (Wyo. 288 P.3d ico, Schultz, Rodey Dic- Esq., Andrew G. Robb, Albuquerque, Akin kason Sloan & AFFIRMED. investigation background Wyoming prem- 5. The included a 4. Because Colorado and both examination, interview, check, polygraph oral hiring negligent on the Restate- ise tort of check, references, personal criminal arrest (Second) Agency § we find Colo- ment check, check, credit medical record rado law instructive. examination, psychological and a evaluation.

Case Details

Case Name: Carabajal v. City of Cheyenne, WY

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Feb 6, 2017

Citation: 847 F.3d 1203

Docket Number: 15-8139

Court Abbreviation: 10th Cir.