*3 O’BRIEN, Before ANDERSON and Judges. McCONNELL Circuit McCONNELL, Judge. Circuit Toby Cordova was shot and killed while fleeing from police an early-morning car chase in City, Commerce His Colorado. survivors brought § this 42 U.S.C. action against Officer Derek City, Commerce alleging that Officer Ara- gon had violated Mr. Cordova’s Fourth rights by Amendment using excessive force to end the chase. Officer Ara- gon qualified asserted immunity and the filed a motion summary defendants judgment. The district court granted motion, holding their that even when light viewed in the most favorable to the Cordovas the facts did not ex- constitute lot, Mr. Cordova parking that the facts business but disagree force. We cessive capture driving straight a constitutional viola- evaded could not constitute summary grant affirm the tion. We Rubino over them. Officer announced however, Aragon, judgment attempted radio that the truck had to ram clearly law was grounds her that she had an evasive turn made established, as to and also affirm Com- being hit. avoid grounds on the Cordo- merce continued, moving now be- pursuit genuine issue of have not created vas yond multiple lot parking involving policy fact as to whether material lights in action. cars with and sirens city moving custom of During pursuit, Mr. Cordova twice *4 might oc- any violation that have behind spike strips, road to drove off the avoid curred. repeatedly once ran a red light, more re- patrol lights with stop fused to cars Background I. activated, pro- and generally sirens a number of facts. parties dispute The speeds ceeded at between 30 and 50 miles summary Because the case decided onto per eventually hour. He turned east- judgement, we construe these facts in the Aragon bound 1-76. Officer became con- non-moving light most favorable to the might cerned that Mr. Cordova cross over party here, Cordovas. — in wrong highway to the side of the A.M., 3, 2006, May at 12:58 On Officer attempt pur- of the to escalate Zamora of James the Commerce Po- apprehension. suit He decided and avoid to (“CCPD”) spotted Department lice a truck wrong cross highway onto the side of the in a driving subdivision where several new traffic himself so that he could “warn The being homes were built. truck was potential danger.” Op., Dist (a piece pulling skid-steer loader F.Supp.2d 1044.1 Mr. Cordova then heavy equipment) excavation on a trailer wrong high- of the crossed onto side it. found behind Officer Zamora this sus- way, Aragon patrol Officer his too. slowed picious, as a of thefts from con- number car, at point which Mr. Cordova tried to recently been reported struction sites had it, according ram to statements both He in the area. ran the trailer’s license Nance, Aragon Officer Officer who it was plate regis- and determined that not in riding Officer car. Officer vicinity. tered to an address Aragon truck, past then accelerated skid-steer loader was later determined to car, stopped and attempted deploy to attempted be stolen. Officer Zamora to stop Although posi- sticks. the car’s exact truck, pull over the but the driver-—Mr. tion is known because Officer Nance stop through and ran Cordova—refused to it, later moved Officer testified light. point, a solid red At this the pursuit -it positioned sideways that so as he to began. force Mr. Cordova either to move back When radio announced highway across the proper into lanes Zamora attempting stop Officer highway exit the via an on-ramp. vehicle, suspicious Derek Aragon, Officers car, Both officers exited the with Nance, Dax Rubino to- Janae headed positioned Officer at the median in location. Nance attempted ward his The officers pulled highway to corner Mr. after he into the center of the and Officer Ara- Cordova 1. The district court found that median to have been reckless. reasonable juror could consider this decision cross the facts, At gon point closer side. there Given these the district court in key agreed are differences each side’s version with the Cordovas that a reason- story. says juror Officer Nance that the able could find that Officer truck appeared heading be his di- fired the fatal point shots at a when Mr. rection, gun pointed so he drew his no immediate danger to the truck. He safety, claims that the truck officers’ and that Officer Aragon’s left, away then swerved from him and own recklessly actions had contributed to a Aragon. toward Officer situation where he perceived a need to says attempted deploy so, he then shoot Mr. Cordova. Even the district sticks, stop quickly but realized the truck court held that the sheer danger demon- gun. was too close. He drew his Cordova, He strated Mr. persisted who had claims that he was in danger, a car chase which he had repeatedly over, to be run rapidly about and therefore refused to stop, through had run at least at the simultaneously fired vehicle while two red lights, had driven off the road at trying to way. move out of the He fired least deployment twice to avoid the stop shots, sticks, either four or five one of which hit allegedly attempted to ram head, cars, Mr. Cordova the back of the multiple patrol fatal- officers’ and who was *5 ly wounding him and causing the truck to now towing large piece of machinery on crash into a tree. wrong way a highway down at one in justified the morning, a reasonable officer Several of the facts cast doubt on Officer in using deadly force to terminate the Aragon’s claims of danger, immediate how- Finding chase. no Fourth Amendment vi- Only one bullet hit ever. the front of the olation, the district granted court the de- truck; the rest hit the side. The fatal fendants’ motion summary judgment. for shot, fact, entered the truck from the through side and went appeal, back of Mr. On Aragon Officer and Com- strongly suggests Cordova’s head. This merce do not challenge the factual that Mr. Cordova had turned the truck assumptions the district court made when longer bearing upon was no down granting summary is, Officer judgment they —that Aragon at the moment the officer accept fired the the district premise court’s that Of- fatal shot. The Cordovas Aragon also contend ficer was not in immediate danger that Officer any was never in im- and that bystanders no innocent were in (“Officer mediate danger place the first vicinity. and that Aple. See Br. Ara- he easily any could have avoided all gon City assume, and the purposes of by simply remaining risk patrol appeal, behind his factual determinations made Court.”). car approached. as the truck court, Further- the lower Like the district more, they suggest they was Officer focus undisputed: instead on what is Aragon’s attempt deploy own stop that “Cordova had stop, fled a lawful at- only sticks in the path escape tempted truck’s multiple vehicles, to ram —a might maneuver that have violated CCPD run two red lights, begun and had driving policies created danger wrong way whatever high- down an interstate —that short, might have existed. way,” thereby it is not at “endangerfing] innocent mo- officers,” all clear whether Officer was ever argue torists and in any danger immediate point dur- because of this the was reason- chase, ing reason, and it in fact quite Aple. seems able. Br. 26. For this likely that danger might accept whatever he have findings the district court’s that a perceived passed by juror the time he fired reasonable could find that Officer fatal shot. was not immediate balancing severity this act “the only we ask include shooting, time issue, parties third the crime at potential risk to whether
whether driving poses safety created Mr. Cordova’s threat to justify others, alone sufficient the officers or and whether he is shooting him. resisting actively attempting arrest or Broad, by flight.” Weigel evade v. arrest
II. Discussion
Cir.2008) (ci-
1143,
1151-52
omitted). Additionally,
tation
we have
A.
Did the Use
Force Constitute
considered “whether
the officers’ own
Constitutional Violation?
during
reckless or deliberate conduct
A Fourth Amendment claim
unreasonably
seizure
created the need to
analyzed
excessive force is
under the “ob
Cram,
use such force.” Medina
jective
gov
reasonableness” standard that
(10th Cir.2001) (citation
1124,
F.3d
inquiries.
erns other Fourth Amendment
omitted). Once the relevant
are de-
facts
Connor,
See Graham v.
all
termined with
reasonable inferences
(1989)
Importantly, though, while the threat to force,” “deadly just and that because a in a suspect posed “high Scott likeli justifies situation ramming does not mean death, injury of serious or it “not hood” did justify shooting will in [pose] certainty the near of death head. by, say, shooting fleeing in felon the back head, pulling alongside a fleeing This is not a case of ramming. Officer shooting motorist’s car and the motorist.” Aragon shot Mr. the back of (internal omitted).
Id.
citations
“A
driving
head while he was
applica-
—an
is,
fact,
bumping
fleeing
car’s
car
tion of force
to that
in Vaughan
closer
policeman’s shooting
much like a
gun
so
than to that in
But
Scott.
there are other
person.”
as to hit a
Id. at
127 S.Ct.
differences that cut the
way.
other
(quoting
County
Adams v. St. Lucie
in Vaughan
motorist
exceeding
(11th
Dept.,
Sheriff’s
speed
limit
per
ten miles
hour and
Cir.1992)
(Edmondson,
J., dissenting),
attempting to
police,
evade the
but he
(11th Cir.1993)
adopted by
This
that a
probable cause to believe
The
that
possibility.
officer has
mere
facts show
Mr.
of serious
poses
physical
threat
driving recklessly down
Cordova was
the
others, it is
harm,
to
or
either
the officer
wrong
highway.
The facts do
side of
constitutionally
pre
unreasonable to
not
not, however,
any other motor-
show that
force,”
deadly
Weigel,
escape
using
vent
vicinity,
in the
that
ists were
or
other
Castle,
(quoting
at 1152
Carr
spot
be
would not
able to
Mr.
motorists
Cir.2003)),
but
F.3d
and avoid an accident themselves.
not
too
statement must
be read
that
course,
did,
Mr. Cordova’s behavior
of
cre-
any
broadly.
It does mean that
risk of
not
might
ate
other motorists who
risks for
others,
harm to
no matter how
physical
along,
come
but
of future harm
risk
justify any application
would
slight,
to
near certain-
enough
justify
was not
force, no matter how certain to cause
ty of Mr. Cordova’s death.
Supreme
The
careful dis
death.
Court’s
The
themselves —if
threat
officers
Vaughan
in Scott belies that
tinction
actual and imminent —could of course shift
do not
sweeping proposition. We
believe
calculus
direction of reasonable-
be reasonable for an officer to
it would
ness.
If a
reasonable officer
ran a red
any
light
motorist who
or
shoot
lanes,
through
feared
simply
position
because
would have
swerved
driving
poses
officers,
reckless
some threat
the life of
life or
his fellow
bystander
might
physical harm a
who
then
of the
sit
on one side
scales would
not
inherently
be down the road. Car chases
distant)
(even
only
risk
potential
if
persons
might
injury
happen
risk
who
might
along,
motorist who
wander
but
course,
their
if that risk
along
alone
very
also the
immediate risk of death to
suspect,
justify shooting
every
could
pursuing
urgency
officers. The
of ter-
quickly
would end much more
with a
chase
chase
minating the
would increase
swiftly-fired bullet.
do not mean to
We
tip in
balance would
the officers’ favor.
risk,
suggest
minimize that
the risk
deadly
use of
force—even of
level
always
to others must
be imminent in or
nearly
to cause
likely
certain
death —would
justify
deadly force,
der to
use of
cf.
Here, however,
justified.
be
threat
Scott,
(use
To the that the district court extent are, fleeing motorist’s from hypothetical that the risk Mr. held Cordo more, enough justify shooting without to posed might va motorists fellow who that nearly that certain to cause sus- happen along enough was itself render reasonable, pect’s it was in error. death. waiver, in colleague Our esteemed dissent criti Even aside from undisputed not delving deeply cizes us for more into fact that at least some of the shots hit the accepting record and instead the dis side, truck from the showing that the truck undisputed trict court’s construction of the longer bearing was no down on Officer facts of this case. But the dissent rests Aragon, testimony and the of a Commerce entirely parts parties of the record the City police officer that “one trained in the briefs, in in have not cited their some pistol use of that in tactical shoot shoot/no arguments they expressly cases on have scenarios would have no difficulty ceasing It disavowed. is not our role to sift firing ceased,” danger when the Aple. Br. through the record to find evidence not 18, suggest that a jury reasonable could parties support arguments cited disagree with the dissent’s confident deter- they Burggraf have not made. Gross v. Aragon mination that Officer indisput- was Co., (10th Constr. 53 F.3d Cir. ably in danger when he fired 1995) (“Without reference, specific fatal shot. will not search the record in an effort to support In of its view that Mr. Cordo- determine whether there exists dormant va’s posed conduct danger imminent might require evidence which submission motorists, innocent the dissent challenges (internal jury.” quotation the case to a the district court’s conclusion that the rec- omitted)); State Farm Fire & Cas. Co. ord did not clearly show that other vehi- Mhoon, 984 n. 7 Cir. in vicinity. cles were The dissent re- 1994) (if party does not raise an argu lies on a statement Officer brief, opening argument ment its affidavit —referred party’s neither waived). brief —that he had seen “three or four support of its claim that Officer Ara- cars.” Dissent at 1205. again, But gon indisputably danger, imminent was an issue the defendants explicitly the dissent that argues the district court chose not to contest. They state: “Plain- “went overboard” in construing the facts tiffs also claim that the District Court’s favorably to nonmoving party, Dissent conclusion that ‘no suggests evidence that “[wjith at 1200 n. and criticizes us for westbound traffic immediately ap- analysis ... accept[ing][the] assump- proaching when Aragon fired’ ef- tion” that Officer was not in imme- fectively danger ‘rules out to innocent mo- danger. diate Id. 1200. Officer ... torists.’ Whether or not there were City and Commerce have not contested the area, vehicles visible in the immediate assumptions, though, district court’s question there is no flight Cordova’s expressly indeed have stated that “Officer danger enormous to motorists and assume, purposes and the Aple. officers.” Br. 23-24. In other appeal, the factual determinations made words, rather than claim that the record by the lower Aple. Court.” Br. 2.2 Per- indisputably shows that other vehicles haps the dissent would have litigated the area, were visible in the immediate appeal differently, but the defendants’ de- defendants accept that this is a disputed not to challenge cision the district court’s factual argue issue and analysis bearing of the facts on Officer Aragon’s danger constitutes a waiver. “enormous” under either version of *9 Mhoon, 31 n. 7. F.3d 984 the facts. When even the defendants treat summary this understanding Because case was decided on forth set its of which facts judgment, undisputed. the district court did not make were It is to these determinations determinations,” carefully appellees true "factual referring. but it are
1192
harm to
physical
serious
himself or others.
open question
an
whether there were
as
Graham,
area,
396,
we See
490 U.S.
109 S.Ct.
visible in the
vehicles
1865; Sevier,
treating
699;
the con-
60 F.3d at
v.
join
cannot
the dissent
Wilson
Meeks,
(10th
1547,
fact.
trary
undisputed
as
52 F.3d
1552-53
Cir.
1995).
Officer
contests is
What
Perhaps
counsel would have
defense
whether a
have
reasonable officer should
jury
that
persuade
been able
general
known
principle prevent
that this
or to
public
Officer
him,
case, from ending
ed
in this
the car
imminent,
as
dissent be-
was indeed
by shooting
chase
Mr. Cordova. Not ev
lieves,
that
not the issue. We do not
but
ery
principle
constitutional
that involves
in shooting
that
conduct
“Aragon’s
hold
balancing
requires
precise
test
that
unreasonable,” was
the dissent
present
factors
in the
case have
involved
1200,
asserts,
only
but hold
that
Dissent at
previously
quantified
weighed,
been
contrary
not been established as a
has
Supreme
“express
course. The
Court has
law,
on the undisputed
matter of
based
rejected
ly
requirement
that previous
light
and in
of the
facts
record
”
‘fundamentally
cases be
similar’
in order
appeal.
parties’ arguments on
clearly established,
Hope
law to be
Clearly
B. Was
Law
Established?
Pelzer,
730, 741,
2508,
v.
536 U.S.
122 S.Ct.
(2002),
153
666
that
L.Ed.2d
and has held
Even if Mr. Cordova’s Fourth
general
“a
already
constitutional rule
iden
violated,
were
rights
Amendment
tified in
law may apply
the decisional
with
qualified
still
immuni
entitled
clarity
specific
obvious
conduct in
right
clearly
if the
ty
was not
established.
question,
though
very
even
action in
City
Corp.,
Christensen v. Park
See
Mun.
(10th
1271,
Cir.2009).
question
previously
has not
been held un
1277
554 F.3d
“Or
lawful.”
dinarily,
(quoting
Id.
United States v. La
clearly
order for the law be
nier,
259, 271,
established,
1219,
117
must be a
Supreme
there
U.S.
S.Ct.
(1997)).
case,
In
Court or Tenth
decision
L.Ed.2d 432
howev
point,
Circuit
on
er,
clearly
weight
prior
established
of author
substantial differences from
case
ity from other
must have
courts
found the
law convince us that
of the
result
plaintiff
law to be as the
maintains.”
not
balancing
clearly
test had
been
estab
Weigel, 544
(quoting
F.3d at 1153
Cruz v.
lished.
Laramie,
1183,
F.3d
inputs
balancing
Two
into
Cir.2001)).
clearly
aWhen
established
equation
particular
have
in this
importance
right depends
application
gen
on the
of a
case:
the level of
used
the officer
principle
particular
eral
of law to a
set
and the
of risk
degree
to innocent
facts, “its
must
sufficiently
contours
be
Harris,
bystanders.
In
v.
Scott
the risk to
that a
clear
reasonable official
un
would
potential
substantial,
parties
third
but
doing
that
derstand
what he is
violates
suspect,
the risk to the
high,
while
right.”
(quoting
Id. at 1154
v.
Hope
certain to cause death. The Court found
Pelzer,
739,
no constitutional violation.
also Cole
See
(2002)).
There is no
driver,
truck in high-speed
of semi
chase
general
governing the
principle
use
interstate did not act unrea-
clearly
force is
crowded
established:
force is
hit).
sonably,
only
though the driver was
justified
if a reasonable officer in the
contrast,
position
Vaughan, in
probable
officer’s
would have had
the risk to the sus-
certain,
pect
nearly
cause to
that there was a
and death
high
believe
threat
*10
parties
but the risk to third
was insubstan
Vaughan,
where the certainty of the
There,
tial.
the court found a constitution
suspect’s death was weighed against the
Garner,
al violation. See also Tennessee v.
smaller risk of harm to
general
public.
1, 11, 105
S.Ct.
to ours. That court concluded that
Municipal Liability
C.
general principle governing excessive force
Though we hold that Officer Ara
sufficiently
that a
well-established
rea-
gon is shielded from liability on the
sonable officer would have known that “it
that;
grounds
even if a constitutional viola
is unreasonable for a
officer to use
occurred,
tion
the law
clearly
was not
es
against
a fleeing felon who
tablished,
qualified
same
immunity
not pose
does
a sufficient threat
harmof
analysis
apply
does not
to municipalities.
the officer or others.”
1194 curred].”), hardly though that to be summary must therefore seems judgment. We here, to County the district court consider remand for case since Critical liability City of unless investiga- Commerce’s a Incident Team conducted full that have failed to cre- find the Cordovas simply tion and the CCPD chief fact to genuine ate a issue material as investigation being a as called off second municipal policy a or custom was whether A in- unnecessarily duplicative. to failure constitutional moving force behind the a reprimand might or also cause vestigate deprivation. by sending message future violation It officers that such behavior tolerated. municipality A is not liable for the not, however, in consti- does itself employees of its constitutional violations tute a causal connection oc simply because such a violation has case. curred; policy or custom must have actu ally caused that violation. See Christen city If the promulgates a constitu (“The sen, 1279 554 F.3d at doctrine of policy tional but trains its to vio officers
respondeat superior employed cannot be however, policy, facially late that consti governmental to hold entities liable under policy city tutional will not shield the from § for torts of 1983 the constitutional their and a be liability causal connection could Jackson, employees.”); cf. Duffield point only established. Cordovas (10th Cir.2008) (supervisor F.3d statements, two by Sergeant both made status alone insufficient to establish affir McCoy, testifying as spokesman Robert mative link between defendant consti city, they for which contend show violation). tutional The Cordovas admit disregard city definite policy. City’s that policy, Commerce official which First, when offi asked to describe when deadly only authorizes officers to force use taught they cers are can apply protection “in per of themselves or other force, Sergeant McCoy suspect said the sons from the immediate threat of death or ability have to would have shown “the injury,” Op., bodily serious Dist. against commit an act somebody” who F.Supp.2d Policy at 1050 (citing CCPD 2.1.11), “actually jeopardy can be § [to foreseen Procedures Manual mirrors the Aple. jeopardy,” constitutional Br. and that the be] standard. 32. city’s Their claim is that the actions deviat “the opportunity to cause the harm to that from policy training Then, ed both its of person.” if App. when asked failing discipline officers and in Officer appears word “immediate” as Aragon for conduct. his “imminent,” policy actually said meant he he agree. would Id. 434-35. This is to discipline As for failure the smoking gun the Cordovas make it out Aragon, of linear principals basic all, to be. First of as Scott v. Harris prevent seeing time us from how conduct shows, permits deadly the constitution alleged that occurs violation could after dangers par force even when the third have A somehow caused that violation. subcategory ties are remote. It subsequent cover-up might provide cir nearly certain to cause death city cumstantial evidence that the viewed requires a more immediate threat. Even policy policy only as a in name applied specific case of behavior, routinely encouraged contrary McCoy’s suspect, though, Sergeant at a see, e.g. Borger, v. City Grandstaff (“The (5th Cir.1985) agreeing that “immediate” and “imminent” F.2d disposi thing mean the same does not us as may tion of strike policymaker be inferred significance. from conduct after the oc- matter of constitutional [violation *12 point though that threat to another has that not might threat materialize chase; in order to justify to be real and concrete within the course of the the latter’s life, taking suspect’s Sergeant danger speculative. is much more Had McCoy the words interprets both “immedi- Mr. Cordova been a serial killer whose “ as meaning ‘Right ate” and “imminent” escape would nearly be certain to in result ” here, now,’ right App. meaning a victims, future no we have doubt the con- perfectly consistent with constitutional stitutional calculus change would and a standard. shooting might justified, be whether other path motorists were in his or not. point
The Cordovas to a also second portion McCoy’s of Sergeant testimony It that emphasizing bears the constitu- specific question where he discusses the of tional standard that we upon elaborate fleeing when an officer can shoot at sus- today hardly a mathematical formula pects: with easily defined lines. We do not hold If [Sgt. McCoy]. you
A. believe that that an officer justified would never be person danger is a other officers shooting a fleeing suspect, Sergeant public upon and the based actions McCoy’s reluctance to frame Commerce they’ve that done. City’s policy in such absolute terms shows Q. Does it be have to immediate dan- why: policemen a variety encounter of un- ger, just or can some it be expected pose situations that a range of far distant future? dangers they public are sworn to protect. A. I if that simply believe the actions are such that We hold a distant risk hypothetical he’s-he or propensity posed by she’s shown motorists sus- doing point pect’s that to the of trying justi- violence reckless not driving does alone someone, someone, fy to hurt kill that you suspect. that Commerce stop public, can that to the City’s policy, threat and it neither as written nor as doesn’t immediate. have to be by Sergeant McCoy, described does not teach otherwise. Q. policy And of the that’s the Com- City Department, merce Police correct? III. Conclusion Yes, A. sir. light When construed most favor- App. though, Again, the Cordovas non-moving party, able to the the facts make more of than sup- this statement it show that Officer used a level of ports. Sergeant McCoy does say that nearly certain to cause Mr. Cordo- any fleeing officers can shoot at suspect death, though any va’s without
who poses general danger some facts, threat to himself or others. Those if Instead, public. being pressed after re- true, would constitute violation of Mr. peatedly on the question whether an right Cordova’s Fourth Amendment to be ever be justified might officer in shooting, free from unreasonable seizure. Because he concedes that there are some instances the law was high not clear on how the risk it, that might warrant as when a suspect of harm parties to third must be before an has propensity doing “shown the officer can nearly use level of force cer- point trying violence to to hurt death, however, tain to cause we AFFIRM someone, kill someone.” There is a differ- qualified on immunity grounds the district ence between a who is suspect fleeing in summary grant judgment court’s attempt kill as it suspect someone and a applies to Aragon. whose risks We also AF- flight killing reckless someone. pose grant summary The former a real FIRM the motion it would as concrete party, applies threat to an innocent even ground Commerce three the windshield and gen- through entered have not created the Cordovas of Cordo- fact whether the side windows of material as to others entered
uine issue city past Aragon; the mov- there was truck as it hurtled or custom va’s policy might accounting violation that the fifth. If ing force behind was, clearly all justified, have occurred. first shot justified fatal shot were shots —that O’BRIEN, Judge, concurring Circuit angle oblique the last came from an *13 in dissenting part. and part gentle- This not is of no moment. was is Aragon concludes Derek majority The by boxing, Marquis the governed men’s immunity to because qualified entitled not Aragon rules. And Queensberry clearly today was not law it announces submission, frighten to into trying Cordova and time of events at the these established unlikely penetrating prospect an summary to municipality is entitled trying Aragon of recent events. light further. go but can judgment. agree, I obviously dangerous an put to an end to Circuit, for this The law now established case, being the an officer Such situation.4 this to facts of regard taken without shoot, to to eval- expected pause cannot be benign— case, enough, and. is reasonable effect, calmly then decide uate the general created a motorist’s “the risks necessary prudent it is to shoot whether [not], are without fleeing from the That a lot to do in one second again. is more, that is enough justify only ques- under extreme conditions. The suspect’s nearly certain to cause that whether, in the tion we need address 1190.) But even Op. at (Majority death.” made, Aragon’s- decision instant was reasonably newly minted rule cannot deadly We need use force was reasonable. viola- one to conclude constitutional lead one parse occurring the details within tion here. occurred The trigger pull. after the first second majority repeatedly emphasizes great urgent necessity came of shots Toby shot Cordova justified opposing fear. like It it sound back of head. makes him with deadly bearing upon down Certainly Cor- an execution. that is what equal force. His decision to use would us believe. dova’s survivors have under circum- force was reasonable these demonstrate, But, I will the record tells oc- No constitutional violation stances. story. Aragon needed quite different majority’s here. I from the curred dissent dangerous eight man tons of stop a astride contrary holding. intent. machinery3 exhibiting evil Background I. Factual man, Cordova, dem-
That had repeatedly willingness endanger a callous onstrated concedes, this majority As the to decide submit author- others rather than way through our case we must “slosh ” ity. of ‘reasonableness.’ factbound morass Harris, 372, 383, 127 five shots —all shots were Scott fired (2007). But L.Ed.2d in one or less—the first bullet S.Ct. second fired loader, piece "dually,” hauling a skid-steer as Cor- a trailer 3. Often called a trucks such normally weigh equipment. over Cordo- The model involved dova’s two tons. construction truck, here, loader, operat- Chevrolet Extended va’s a 1990 K3500 a Takeuchi TL150 has Cab, 5,000 weighs pounds. 10,902 http://www. over ing weight pounds. See earch/vip/specJSxteri- http://autos.msn.com/res 50.html. takeuchi-us.com/TLl or.aspx?year=1990 & make= & Chevrolet Yogi pulling ain't till it’s over.” Berra. trimid=-l. It was 4. “It over & model=C/K3500 studiously majority ignored through has down 104th Avenue and its inter- very justified Aragon’s facts which use of section Highway with Colorado 2. But a force. train escape blocked the 104th Avenue so parking turned into a lot and totality In our the circumstances anal- lights. turned off his Zamora saw this and all ysis we must consider uncontested facts alerted others over police radio at 1:04 genuinely and construe contested material time, At separate A.M. six officers favorable to light facts most Cordo- were in the area and became involved va. entitled to all Cordova is also infer- pursuit: Zamora, Nance, Aragon, Ru- from reasonably ences drawn those facts. bino, Douglas and Walkinshaw. Zamora It but at process, tedious the end of and Rubino parking drove to the lot and (if day arguments, we do not confuse attempted to contain Cordova blocking facts) allegations assumptions with his exit They with their cruisers. were there are material few contested facts and *14 unsuccessful because Cordova drove at easily those are construed Cordova’s them, nearly hitting both vehicles. Officer favor, so although doing salvage does not reported Rubino directly Cordova “drove plaintiffs Sweeping generalizations case. at her and felt that attempt- [she] [he] was debate; do not inform this the devil is in (R. ing to ‘ram’ car.” patrol her details, Appel- I relate. which now 268.) App. lants’ II Vol. at Based on A.M., Zamora, At James 12:58 actions, Cordova’s the officers resumed the officer, City police Commerce noticed a pursuit. towing dual-wheeled truck a trailer with a lot, After leaving the parking skid-steer Cordova loader5 near Chambers Road proceeded ran another light and 104th in Commerce red and City, Avenue north Col- Colorado 2.6 Knowing Highway orado. thefts construction ma- Zamora sped chinery recently had occurred in ahead of attempted the area Cordova and to lay oddity and considering equip- “stop such sticks”7 on the road but Cordova A.M., being ment 1:00 hauled at Zamora went off the road to avoid them. reported plate (who license trailer’s number traveling and Nance were dispatch. reported to Dispatch the trail- vehicle) same stationed themselves at the registered er’s was not in address the im- junction Highway 2 and Interstate 76 mediate area so Zamora decided to stop (1-76) in stop order to deploy sticks. Their the truck. He activated his vehicle’s over- efforts came to naught because Cordova Cordova, lights head but the driver of the entered eastbound to avoid stop 1-76 their truck, refused to instead stop; Cordova Zamora, sticks. who had followed Cordo- Avenue, continued west on running 104th 1-76, va onto and again pre- raced ahead light. supervising red Zamora’s officer or- to pared deploy stop just past sticks dered Zamora pursuit to terminate his but interchange with 470. Aragon Interstate respond ordered other officers and Nance also followed Cordova onto area in hopes of it off. sealing eastbound 1-76. Aragon observed “moder- Zamora stopped, deactivated his ate traffic” or specifically over- more “three or lights head proceed Cordova travelling watched four cars” westbound on 1-76. " weight 5. The 'Stop substantial size and of Cordova’s 7. sticks' are a device which can be rig obviously stopping placed increases distance and roadway across the and used to flatten maneuverability. decreases slowly safely a vehicle's tires terminate a Scott, pursuit.” at 397 n. (Stevens, J., maps, dissenting). See A & B. Attachments 201.) later, (R. blocking mile westbound lanes App. Vol. I at Appellants’ the vehicle safety of the with his ear.8 Nance exited fear for He “was (Id. 201.) at- median. and went into the at public----” stop tempted lay sticks but realized in- pursuits with Aragon’s experience approaching quickly vehicle Cordova’s a fleeing where cluded situations safely already too close for him to oncoming into to escalate traffic crossed do so. terminate danger and force neared the cruiser reckless As Cordova Based on Cordova’s pursuit. Nance) (and Aragon Ar- he first drove capture, driving attempts avoid position me- in the median. would toward Nance’s agon feared Cordova cross dian, pulled weapon and aimed other motorists. Nance endangering Therefore, Nance, abrupt their then “made an Aragon and with Cordova. Cordova activated, posi- toward lights turn and swerved” emergency vehicle’s ramp traf- oncoming heading to warn tion toward entrance crossed median (where thereafter, Shortly just 136th Avenue he would be did from fic. (Id. way on the going wrong ramp). the median feared —he crossed 82.) just location Zamora Zamora said Cordova’s vehicle before the where (Id. did not thrashed deployed stop sticks. Cordova “swerved and about.” (the 72.)9 Aragon normal life” at turn west on 1-76 direction of “feared [his] *15 flow). he in behind moment and believed he “was about to be traffic Instead fell 88.) (Id. Ara- response, At this both Cor- run over.” at Aragon’s point cruiser. Aragon moving gon weapon pur- were fired five times. For dova his wrong poses summary judgment only, lanes of of the de- direction on westbound at open 1-76. lanes were fendants conceded one bullet entered Although both time, through Ara- up through Cordova came windshield and four behind (within feet). gon’s Aragon cruiser two the driver side windows of the truck. conceded, being They again purposes to avoid hit. Be- also of accelerate only, “plenty get summary judgment there of room to the fatal bullet cause was truck, of Aragon around Cordova’s was fired from the side “after [our car]” felt at- all passed near-miss of his vehicle another some or of the truck had was 10 45.) (Id. 87.) (Id. ramming. Aragon at stated tempted Aragon.” Aragon at he enough to warn sped up gain distance fired because he “was 88.) (Id. deploy- ... about run at other motorists and allow a safe to be over.” stop firing, across felt “in dan- Aragon ment of sticks the westbound imminent While Aragon being by act- ger lanes. believed Cordova was of death —of run down (Id.) “extremely dangerous” in an manner truck.” contin- ing large Cordova’s truck ued, using “deadly weapon.” only as a when it tree. The stopping his truck hit a (Id.) Aragon stopped approximately per of frozen at miles speedometer was 50 % Aragon’s definitively dispute There is as to 10. Four of hit whether the shots Cordova’s lanes; only through vehicle blocked the westbound at bullet truck: least one entered dispute facing the windshield, the car was whether two entered the driver side win- ramp dispute entrance or the median. This dow, through and a entered fourth driver Aragon clearly immaterial because was not side window of the truck's extended cab. It behind vehicle the time he shot not the fifth shot was determined whether hit at Cordova. Cordova’s truck. 1-76, parallel to 9. Zamora on Eastbound trailer. Cordova's truck and
1199 seconds; as much At 1:14:12 A.M. the seconds or as 1.03 hard- (mph). hour ly significance.14 of matter constitutional supervisor pursuit ordered the terminated. later, A.M., Aragon at 1:14:17 Five seconds Analysis II. Constitutional reported shots fired. analyzed Excessive claims are un approximately The entire chase lasted objective der the Fourth Amendment’s eight sixteen and covered about minutes standard, reasonableness Graham Con state, county, high- and interstate miles nor, 386, 388, 490 U.S. 109 S.Ct. 104 ways.11 portion of the chase oc- The last (1989), L.Ed.2d 443 informed totali curred on a of 1-76 approximately section ty of the circumstances. Tennessee v. Assuming four miles Cordova’s long.12 Garner, 1, 8-9, traveling mph,13 truck the chase on (1985). L.Ed.2d “Because the test of six minutes. approximately 1-76 lasted reasonableness under the Fourth Amend disputed None of the above facts are capable precise ment is definition or (except the minor fact noted in footnote application, proper mechanical ... its ap 11), facts, disputed other but there are plication requires careful attention to the favor, weigh only which in Cordova’s albeit each particular facts and circumstances I them re- slightly. accept as true. One case, including the severity crime at from lates to the distance issue, suspect poses whether imme at the Cordova’s truck time fired threat to safety diate officers or in an weapon. statements others, actively and whether he is resisting truck at a interview have the distance attempting arrest or to evade arrest “10, five, feet if “probably 15 feet” or seven Graham, flight.” U.S. 204-05.) (Id. expert that.” Cordova’s (citation quotations S.Ct. 1865 omit to be at 13 feet calculated least ted). I path
from the
Cordova’s vehicle.
*16
particular
“The ‘reasonableness’ of a
use
accept
the version related
Cordova’s
judged
perspec-
of force must be
from the
expert.
scene,
tive of a reasonable officer
the
very
discrepancy
There is also a
minor
rather than with the
vision of hind-
20/20
Graham,
396,
regarding
sight.”
time between the first and
at
the
109
(“Not
shove,
or
every push
last shot.
It could be as little
.
Without
”).)
Cordova,
danger.
the other
It was
not Ara-
grave
him in
On
swerved....
placed
hand,
a
eight-ton rig to lead
he used his
gon, who created
need for
chase
of
on
16-minute
number
officers
force.
traffic
roadways, disregarded
public
on
may
mistakenly
have
be-
Aragon
While
car,
laws,
drove
attempted to ram Rubino’s
safely
stop
deploy
lieved he could
capture,
to
en-
and off the road
avoid
on
not
perhaps
and
did
allow himself
sticks
of
and Nance
dangered the lives
so,
do
enough
safely
qualified
time to
cruiser,
ram their
by attempting
to
immunity
“gives ample
standard
room for
aimed
weapon
at Nance until
was
drove
“all but
judgments,” protecting
mistaken
him,
Aragon.
and
drove at
Collec-
at
then
plainly incompetent
or those who
individually,
if
those events
tively,
not
v.
knowingly
Malley
violate the law.”
in Ara-
any
lead
reasonable officer
would
335, 341, 343,
Briggs, 475
106 S.Ct.
U.S.
he
in immi-
position to believe
was
gon’s
(1986);
threat to
was a
of his own
creation
may
purposely place
An officer
not
him-
major-
making.
analysis
With minimal
seizure,
way
justify
self
harm’s
but
ity accepts
It
not
argument
fact.
an officer
not avoid a
at
need
confrontation
a fact and it
is not
reasonable conclusion
Scott,
385-86,
all costs. See
at
U.S.
flowing from actual facts.
obliged
are
(police
1203 including could ... the upon jury suspect poses which a conclude whether an dence safety the recklessly by the con- immediate threat to of the officers acted offi- they manner cers or others” and “whether he is fronting actively the victim in the did resisting attempting knowing distraught he was armed and and arrest or to evade arrest”). But is even information on the there more to the gathering without more test, 700, including at n. 10. Converse- but not limited to the ur- Id. 701 situation. Lakewood, situation, gency af- of the the risk to ly, Jirón v. the of available, police, the grant qualified immunity a of to a alternatives and the firmed Scott, of felony culpability a relative the actors. police officer who confronted sus- 384, 1769; Graham, a 550 at attempting escape from closed room U.S. 127 pect 396, deadly a in hand. 392 490 U.S. at S.Ct. 1865. weapon with F.3d 109 The risk Cir.2004). 410, was, course, to 418 We held the Cordova of extreme. Shooting someone, out, points officer did not exhibit reckless behavior Scott entering avoiding great a deal from ramming the room because different their Scott, 383, escape of an vehicle. 550 U.S. at confrontation “risked 127 S.Ct. into 1769. But agitated suspect public armed and Scott is not most analogous application risked a more violent con- of force the potentially Supreme and distinguished recently Id. Sevier Court has considered. frontation.” Jirón Another shooting begs a person where suicidal threat to consideration. while in a area. Id. at 419.
others
confined
officer,
Haugen,
Brosseau v.
a police
Jirón, Aragon reasonably
Like the facts of
engaged in
of a
pursuit
fleeing suspect,
ground against
fleeing suspect
stood
him
get
parked
watched
into
vehicle.
using deadly
him
against
and who
194, 196,
596,
125 S.Ct.
160
previously
propensity
to risk
had
shown
(2004).
L.Ed.2d
repeatedly
583
She
or-
to others.
harm
dered him to exit
vehicle
briefly
and
(where
engaged in a
with him
struggle
she
B. Threat to the General Public
broke the vehicle’s window and hit him in
public
Would the
have been better
handgun).
head with the
her
butt
Aragon simply
had
let
served
Id. When he
the vehicle
began
started
16
escape?
Supreme
again
The
Court has pulling away, the officer shot him in the
“no” in
said
similar circumstances.
“We
196-97,
back.
Id. at
others were neither as well articulated nor trig- experienced magical He Aragon’s. establish switch on/off an offi- being path gers rigid preconditions whenever firsthand Cordova’s truck, attempted rammings, ‘deadly knew of cer’s actions constitute force.’ [It] other the Fourth personally dangerous simply application observed Cordova’s road, driving on and other Amendment’s ‘reasonableness’ test to off saw majority particular type par- on I76.17The have use of a of force in vehicles should situation.”) (citation omitted). Supreme ticular the lead of the Court followed Scott, stopped holding of no rammed the individual to with violation future other clearly speculative injury law. We are now avoid established majority unsupported and improper In footnote me for conclusion. faults mentioning vehicles on westbound The district court heard no evidence other 1197) claiming they findings (certainly (supra at could not credi- 1-76 were not make bility findings); we are it looked at the same record referenced the briefs and not obli- presence I- gated scour we The vehicles on the record search of facts. do. other may obligated not be to scour 76 is nowhere contradicted in the record We the record case, objective Ara- fairly but are there reason to discredit in order decide we not is no Contrary gon's about prohibited doing from so. referred to statements them. times, assertions, just accept majority's I uncon- other vehicles several once. must are inconvenient— n they even if alerted to statements from a record troverted facts opening vehicles 1-76. cite in brief he dis- there were other on westbound Cordova's where Aragon's crossing majority simply does not construe cusses reason for the medi- favor, 8.) it assumes (Appellant's 1-76. Br. at The district factual record Cordova’s an of (and position conclu- jury facts favorable to his its court said could find testimo- sions). ny untrustworthy, but we are not bound
1205 (R. 81-82.) majority Appellants’ App. on the The de- life.” I road. Vol. at individuals pursuit “Hollywood-style Aragon And said Cordova bearing “was scribed me, sort” and I frightening my of the most down on feared for I car chase life.... at I about bystanders thought was to become a hood placed which 380, injury. of at ornament on this truck.... I I great risk serious Id. felt that However, (Id. in 127 the dissent saw was imminent of death.” at S.Ct. 88.) differently, pedestri- saying it much “no When crossed the median he ans, cars, sidewalks, “safety residences was about the parked public or worried of the time,” suspect traveling” at nev- that was after seeing were visible “three vehicle, and er control of his even four cars” on 1-76 and first- witnessing lost (Id. traveling dangerous and waited for the cars hand Cordova’s “slowed behavior. 201.) pass subjective direction to before over- These impressions the other are car in using fully supported front of him while taking record. 392-93, signal turn to do so.” Id. at his Cordova had once broken from confine- (Stevens, 1769 dissenting). 127 S.Ct. J. (in lot) parking ment by aggressive majority determined the risk of let- The threatening again. means and was to do so ting night flee into the because posed The threat Cordova public to the his actions were reckless would create hypothetical. was far from rep- Cordova driving by suspects more reckless who resented a significant substantial and risk escape know was within reach. Id.
would
anyone may
he
have met
proceed-
as he
385-86,
1769;
127
S.Ct.
see also Bros-
wrong way up
ed the
the 1-76 entrance
(ex-
seau,
U.S. at
596
125 S.Ct.
ramp. Apparently no
present
cars were
declining
deadly
pressly
consider use
ramp,
Aragon,
on the
but
being otherwise
violation).
force as a constitutional
occupied and with his back
ramp,
danger recognized
reasonably
the future
in cannot
be charged
Like
with such
Scott,
significant
knowledge.
light
early-
risk
future
Traffic was
Cordova’s
hours,
dangerousness justi- morning
but
on I-
reckless behavior
saw cars
chase;
Regardless
during
just specu-
fied immediate action.
it was not
justification provided by the imminent
lation for him to conclude a car could be
Aragon,
coming
Cordo-
the entrance
ramp.
threat to
threat
down
But
(as
general
provid-
posed
public
quite speculative
majori-
va
also
to assume
independent justification
ty suggests)
ed an
for the use
such a car encountering Cor-
force.
with
deadly
dova’s truck
laden
be
trailer would
other,
able to avoid a collision.
but
And
is the
predictor
Past behavior
best
remote, dangers
reasonably
more
were
behavior,
past
future behavior. Cordova’s
within
of risk.
If
the orbit
Cordova had
record,
is clear
evident on
evidence
again
escaped
broke confinement and
with-
disregard
safety of oth-
a wanton
for the
causing
out
head on
collision on
willing
ers. Zamora stated Cordova “was
ramp,
past
strongly
behavior
suggests
place
public
officer and the
dan-
what
if
he would do
he were to later
truck
ger.
deadly
had become
car,
ig-
encounter another
even one
(R.
2.)
weapon.”
Appellees’ Supp.App. at
escapades.
norant of his
endangered
“felt
Rubino
[Cordova]
“a
using
posed
phys-
life
his vehicle as
threat of
[her]
serious
(Id.
3.)
Nance,
harm,
others,”
weapon.”
“it
ical
To
either
the officer or
justified
extremely
fully
...
which
prevent
[Cordova]
was clear
“to
escape by using deadly
Weigel
as a
force.”
dangerous
using
his truck
Broad,
Cir.2008),
my
I
deadly weapon....
was in fear
— U.S.-,
violation
denied,
There was
constitutional
cert.
affirm
judgment
here.
I would
(2009) (quotations omit
L.Ed.2d 1295
holding.
so
The district
district court
ted).
more than a
Certainly
he
*22
judgment
summary
court also entered
1190.)
danger[
(Majority Op. at
“general
].”
Depart
favor
the Commerce
Police
public
The threat Cordova
no consti
ment because
committed
evident,
considerably
im
more
more
I
affirm that de
tutional violation. would
than
mediate,
pre
more serious
well,
reason.
cision as
the same
Brosseau,
to Officer
who shot
sented
Thomas,
F.3d
Graves v.
behind before his ve
fleeing suspect from
Cir.2006)
Angeles
(citing City Los
act,
Her
motivated
even moved.
hicle
Heller,
796, 799, 106
475 U.S.
officers,
occupied ve
fear for other
(1986)).