ESTATE OF JOSEPH VALVERDE, by and through Isabel Padilla, as personal representative, Plaintiff - Appellee, v. JUSTIN DODGE, Defendant - Appellant.
No. 19-1255
United States Court of Appeals for the Tenth Circuit
July 30, 2020
PUBLISH
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:16-CV-01703-MSK-MEH)
Michele A. Horn (Wendy J. Shea and Conor D. Farley, with her on the briefs), Denver City Attorney‘s Office, Denver, Colorado, for Defendant-Appellant.
Eric Valenzuela (Dale K. Galipo, with him on the brief), Law Offices of Dale K. Galipo, Woodland Hills, California, for Plaintiff-Appellee.
Before HARTZ, MATHESON, and CARSON, Circuit Judges.
Denver Police Sergeant Justin Dodge fatally shot Joseph Valverde after he saw Valverde pull out a gun as a SWAT team arrived to arrest him after an undercover drug transaction. Plaintiff Isabel Padilla, as personal representative of Valverde‘s estate, sued Dodge under
Dodge appeals. We have jurisdiction under
I. BACKGROUND
A. The Shooting
On the afternoon of July 2, 2014, Valverde planned to buy two kilograms of cocaine at Overland Public Park in Denver, Colorado, from a man to whom he had previously sold guns (including AK-47s) unlawfully. Unbeknownst to Valverde, this man was undercover detective Fabian Rodriguez with the Adams County Sheriff‘s Office, who was working with the Metro Gang Task Force (MGTF), a multi-agency law-enforcement organization targeting gang members in the Denver area. During their last gun transaction Valverde had told Rodriguez that he was a cocaine dealer but that his drug supplier had disappeared, and he asked Rodriguez if he knew anyone who could provide cocaine. Rodriguez stated that he knew some people in the cocaine business, and they arranged for a purchase of two kilograms—setting in motion the July 2 meeting, at which the MGTF planned to arrest Valverde. (An operation in which an undercover officer sells contraband to a suspect is
A Denver Police Department (DPD) SWAT unit was assigned as the arrest team. The unit typically deploys in high-risk situations, such as when the suspect is known to be violent, a higher-level drug dealer, or the target of a bust operation. Dodge was the team supervisor for the assigned SWAT unit, which included five other officers, one of whom was a K-9 officer with his dog.
The SWAT team met a few hours before the operation to go over the details of the tactical plan. The plan called for the SWAT team to enter the parking lot in an unmarked van and then move in quickly to take Valverde into custody once he attempted to buy the cocaine from Rodriguez and Rodriguez gave the bust signal. Dodge was to be the driver and would have a semi-automatic carbine and a “less-lethal” 40-millimeter gun available as an option. The K-9 officer‘s primary responsibility was the dog, also a less-lethal option. Three of the other four officers were armed with M4 carbines and one carried a pistol. These four officers were to deploy out of the van first, in two 2-man teams. They would move toward Valverde and pin him in from different sides, with the lead officers of each two-man team approaching with their weapons drawn. The tactical plan provided for the possibility that Valverde would decide to flee (the team would deploy the canine) or stay put in his vehicle (Dodge would block Valverde in with the SWAT van), or if the situation unfolded in some other unexpected way. The SWAT team was told during the briefing that Valverde had a gang affiliation, had previously been involved in illegal gun sales, and was known to carry a weapon and might be armed that day.
The reverse-buy-bust operation began as planned. Valverde arrived at the park‘s parking lot as expected and attempted to purchase the cocaine from undercover detective Rodriguez. Once Rodriguez gave the bust signal the SWAT team moved in to arrest Valverde, pulling up by the sidewalk in an unmarked white van. But less than seven seconds after the first SWAT team members exited the van, Valverde had been shot by Dodge and was on the ground.
The FBI conducted aerial aircraft surveillance of Valverde that recorded video footage, without sound, of the operation. That footage is included in the record. Also, Rodriguez was wired with a sound recording device during the transaction, and another detective prepared a recording that synchronized the audio and video recordings. That recording is also part of the record on appeal. To the extent that the synchronized video unmistakably establishes facts, we are to apply them, even if they are contrary to other evidence, such as testimony. See Thomas v. Durastanti, 607 F.3d 655, 659 (10th Cir. 2010) (“While a court considering a summary judgment motion based upon qualified immunity usually must adopt the plaintiff‘s version of the facts, that is not true to the extent that there is clear contrary video evidence of the incident at issue.” (brackets, ellipses, and internal quotation marks omitted)).
Rodriguez had parked his SUV in a parking space perpendicular to the sidewalk bordering the park, with a vacant parking space between his car and the closest parked car. (Valverde had arrived with his girlfriend in a white pickup truck, and she parked it on the other side of the lot across from where the shooting occurred.) The two men were on the sidewalk bordering the vacant space. From their vantage point facing the parking lot, a sedan was in the parking space to their left and Rodriguez‘s SUV in the space to their right. The police van arrived from their right. Valverde said “who‘s that” to
As the van slowed and came to a stop between the sedan and the SUV, the SWAT team officers began deploying. The following diagram shows the position of the vehicles, Valverde, and Rodriguez:
Two of the officers exited from the passenger-side sliding door, heading toward the far side of the sedan. The K-9 officer and his dog immediately followed them. The lead officer threw a flash-bang device while exiting. According to Dodge, the purpose of the noise and smoke of the flash bang was “to try to prevent shootings“—to “distract the suspect away from any ill intent or trying to obtain a weapon and then use that weapon . . . .” Aplt. App., Vol. I at 209; see also id. at 226 (testimony of SWAT team member Bollwahn) (purpose of flash bang is “to distract the intended person or persons to gain compliance from them, so they don‘t think about pulling a gun or shooting a gun or anything [else] dangerous“). The front two officers approached Valverde from his left, going around the passenger side of the sedan, while the K-9 officer and his dog trailed behind.
The other two-man team exited from the back of the van about a second after the first team, just as the flash bang went off and billowed white smoke. They approached from Valverde‘s right, beginning to circle around the driver‘s side of the SUV. Rodriguez had scrambled away from Valverde and thrown himself face down on the ground in front of the SUV.
About the same time, Dodge exited the van from the driver‘s side door (the side closest to the two parked cars and Valverde). He had armed himself with his semi-automatic carbine, as opposed to the less lethal 40-millimeter gun, because he believed Valverde would have a gun.
As Dodge exited, one or more of the other officers ordered Valverde, who was facing the van, to raise his hands. Valverde did not immediately comply; he appeared to flinch or jump slightly backward in reaction to the flash bang. Dodge headed directly toward Valverde, moving through
None of the officers identified themselves as police. The officers were wearing green SWAT uniforms rather than the typical blue DPD uniforms. Their vests did, however, have a DPD badge and the word “Police” across the chest.
Although officers surrounded Valverde and yelled at him to put his hands up and get down, he moved slightly forward and then slid to his left, in front of the right front tire of the parked sedan. He stood angled toward Dodge, who was next to the driver‘s side door of the sedan. Dodge said that he saw Valverde keep grabbing for something in his pocket or waistband area. The two-man team circling the sedan and Rodriguez, who had turned over on the ground so that he could face Valverde, also observed Valverde reaching for something in his shorts. Valverde then pulled out a gun with his right hand, at waist level. Directly facing Valverde from across the hood of the sedan, Dodge saw the muzzle of a gun. Rodriguez and the lead officer coming from the left, around the hood of the SUV, also saw the gun. The lead officer yelled to his partner that Valverde had a gun; he did so because his partner had not yet cleared the SUV and therefore would not be able to see Valverde or that Valverde was armed. The officers coming from Valverde‘s left, around the sedan, did not see a gun.
Less than a second after Valverde pulled out this gun, Dodge fired his carbine at Valverde five times in rapid succession. Three of the five shots struck Valverde—one in his right chest, one in the back of his right elbow, and one in his right back. Dodge gave no verbal warning that he was going to shoot, or any other warning or command to drop the gun and surrender. Nor did he alert the SWAT team that he was going to exit the van, or that he planned to do so with a carbine instead of the 40-millimeter gun available to him. None of the other officers fired a shot. About four seconds elapsed from the time Dodge stepped out of the van to the time Valverde went to the ground.
There is no dispute that Valverde drew a gun, and that Dodge saw Valverde take the gun out before using deadly force. But Plaintiff asserts that the video footage clearly shows that “[Valverde] never pointed a gun at Dodge or any other officer during the incident, [Valverde] voluntarily discarded the gun onto the ground (while he was standing up) and then raised his visibly empty hands up near his head (all in one motion) prior to the shooting, and [Valverde] was in this position when the shooting began. [Valverde] did not have a gun in his hand when the shooting occurred.” Aplee. Br. at 11–12 (citations omitted). Finally, Plaintiff contends that the video and the fact that Valverde was shot in the back and the back of his right elbow, show that Valverde was going to the ground and already on the ground for at least some of the gunshots.
After Valverde fell to the ground one of the officers immediately handcuffed him. On the ground, by the right front tire of the sedan, officers found the gun that Valverde had dropped. Valverde died from his wounds.
B. Procedural History
Plaintiff filed suit in the United States District Court for the District of Colorado against Dodge and the City and County of Denver, asserting a
Dodge filed an unsuccessful motion for summary judgment, invoking qualified immunity. According to the district court
II. DISCUSSION
A. Qualified Immunity
“The doctrine of qualified immunity shields officials from civil liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal quotation marks omitted). The doctrine “balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). If a defendant invokes qualified immunity, the plaintiff has the burden to show that (1) the defendant violated a constitutional or statutory right and (2) this right was clearly established at the time of the defendant‘s challenged conduct. See id. at 232.
Dodge‘s appeal challenges the district court‘s denial of his motion for summary judgment based on qualified immunity. Plaintiff contends that we lack jurisdiction to hear this appeal. Ordinarily, we lack jurisdiction to review the denial of summary judgment. That is because
Our jurisdiction on qualified-immunity interlocutory appeals is, however, limited. We have jurisdiction only to the extent that the appeal turns on “abstract legal conclusions.” Fogarty v. Gallegos, 523 F.3d 1147, 1153 (10th Cir. 2008). “That is, this court has jurisdiction to review (1) whether the facts that the district court ruled a reasonable jury could find would suffice to show a legal violation, or (2) whether that law was clearly established at the time of the alleged violation.” Roosevelt-Hennix v. Prickett, 717 F.3d 751, 753 (10th Cir. 2013) (internal quotation
Still, the mere existence of controverted factual issues does not necessarily divest us of jurisdiction. “We need not . . . decline review of a pretrial order denying summary judgment solely because the district court says genuine issues of material fact remain; instead, we lack jurisdiction only if our review would require second-guessing the district court‘s determinations of evidence sufficiency.” Medina v. Cram, 252 F.3d 1124, 1130 (10th Cir. 2001). Thus, “our jurisdiction is clear when the defendant does not dispute the facts alleged by the plaintiff and raises only legal challenges to the denial of qualified immunity based on those facts.” Henderson v. Glanz, 813 F.3d 938, 948 (10th Cir. 2015) (internal quotation marks omitted); see Plumhoff v. Rickard, 572 U.S. 765, 773 (2014) (“[D]eciding legal issues of this sort is a core responsibility of appellate courts . . . .“); Walton v. Powell, 821 F.3d 1204, 1209 (10th Cir. 2016) (“[I]f the rule were otherwise and we could not consider the sufficiency of the (given) facts to sustain a lawful verdict, a great many (most?) qualified immunity summary judgment appeals would be foreclosed and [the] promise of assuring a meaningful interlocutory opportunity to vindicate what is supposed to be an immunity from trial would be irretrievably lost.” (internal quotation marks omitted)).
Also, when the district court expresses no view on the sufficiency of the evidence regarding an essential element of a claim or defense, we may assume that task. See Walton, 821 F.3d at 1208 (“Often enough, a party will argue that the district court failed to identify what facts a jury might reasonably find—an assertion that requires us, first, to decide if the district court did or didn‘t determine the facts a jury could find and, second, to determine the facts for ourselves if the district court didn‘t.“). The only bar to our review in this regard is that we are required “to accept as true the facts the district court expressly held a reasonable jury could accept.” Id.
We must note, however, that the appellate court is not always bound by a district court‘s ruling that the evidence presented would support a particular fact-finding. In Scott v. Harris, 550 U.S. 372, 380 (2007), the Supreme Court held that the lower courts should have discredited the plaintiff‘s version of events because it was “blatantly contradicted” by videotape of the incident. See Durastanti, 607 F.3d at 659 (“While a court considering a summary judgment motion based upon qualified immunity usually must adopt the plaintiff‘s version of the facts, that is not true to the extent that there is clear contrary video evidence of the incident at issue.” (brackets and internal quotation marks omitted)).
In sum, we have jurisdiction if the defendant‘s appeal seeks qualified immunity based on incontrovertible facts, facts that the district court has declared to be supported by the record, and—to the extent that the district court has not expressed its view—the remaining evidence as seen in the light most favorable to Plaintiff. Under this standard, we believe we have jurisdiction to consider the issues raised by Dodge on appeal.
Plaintiff argues that the requirements for interlocutory review have not been met because Dodge relies on arguments that are “thinly veiled attempts” to challenge the district court‘s “conclusion that [Plaintiff] presented sufficient evidence to survive summary judgment.” Aplee. Br. at 4. But Dodge‘s arguments on appeal accept
B. The Shooting
We review de novo the denial of a qualified-immunity motion for summary judgment, applying the same standard the district court should apply. See Rieck v. Jensen, 651 F.3d 1188, 1191 (10th Cir. 2011).
1. Legal Principles
In an excessive-force case, as in other
In Graham the Supreme Court noted three nonexclusive factors for determining whether a particular use of force was excessive: (1) “the severity of the crime at issue,” (2) “whether the suspect poses an immediate threat to the safety of the officers or others,” and (3) “whether he is actively resisting arrest or attempting to evade arrest by flight.” 490 U.S. at 396. Each factor must be evaluated from the perspective of the officer on the scene. See Henry v. Storey, 658 F.3d 1235, 1239 (10th Cir. 2011); see also Thomson, 584 F.3d at 1319. Although the first and third factors can be particularly significant in a specific case,1 the second factor
In that regard, our decision in Larsen sets forth several considerations that may be useful for assessing the immediacy and degree of the danger facing officers: “(1) whether the officers ordered the suspect to drop his weapon, and the suspect‘s compliance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions of the suspect.” 511 F.3d at 1260; see Tenorio, 802 F.3d at 1163–64 (describing these factors as “aids” in making the ultimate reasonableness determination from the perspective of an officer on the scene). Assuming that the suspect was drawing a gun to fire at an officer only a few feet away, those factors support the officer‘s use of deadly force. The second, third, and fourth would obviously be satisfied. Drawing the gun to fire at an officer is a hostile motion with hostile intent and presents a lethal threat when the officer is close by. The first factor can certainly be of central importance when the suspect is already holding a weapon when first observed by officers. In Larsen, for example, the officer was reasonable in shooting a knife-wielding suspect because the suspect refused to comply with repeated orders to drop the weapon. See 511 F.3d at 1258, 1263; see also Thomson, 584 F.3d at 1319 (shooting the suspect was reasonable in part because suspect had been ordered to “drop his [gun], but he did not comply with the command“). But when the suspect is not holding a gun when the confrontation
2. Application
In light of the above principles, the decisive question is whether Dodge was reasonable in believing that Valverde was going to fire his gun at Dodge or other officers. We conclude that Dodge‘s belief was reasonable. He had been informed that Valverde was involved in high-violence criminal enterprises—dealing guns and large quantities of drugs. Dodge saw the barrel of a gun as Valverde pulled it from his waistband or pocket. To wait to see what Valverde would do with the weapon could be fatal. Dodge fired immediately. The sound of his first shot was less than a second after Valverde pulled out his gun. The sound of his last shot was a mere second after the first.
The district court denied Dodge‘s motion for summary judgment based on qualified immunity because it said that the evidence could support a finding that Valverde was not shot until after he had disposed of his gun and was raising his hands in surrender. This ruling, however, overlooked two fundamentals of the necessary analysis. First, the district court failed to consider that allowance needs to be made for the fact that the officer must make a split-second decision. The Constitution permits officers to make reasonable mistakes. Officers cannot be mind readers and must resolve ambiguities immediately. See Wilson v. Meeks, 52 F.3d 1547, 1553 (10th Cir. 1995) (“Qualified immunity does not require that the police officer know what is in the heart or mind of his assailant.“). Perhaps a suspect is just pulling out a weapon to discard it rather than to fire it. But waiting to find out what the suspect planned to do with the weapon could be suicidal.
The district court‘s second error was that it failed to appreciate that the facts must be viewed from the perspective of the officer. For purposes of this appeal, we accept as true the district court‘s view that the evidence could support a finding that by the time Dodge fired his gun Valverde had dropped his gun and was raising his hands. But the court expressed no view on what the jury could find regarding what Dodge had observed when he made his decision to fire. Yet that is absolutely critical to resolving the legal issue before us. Therefore, it is left for this court to determine what a reasonable jury could find on that score. See Walton, 821 F.3d at 1208 (“Often enough, a party will argue that the district court failed to identify what facts a jury might reasonably find—an assertion that requires us, first, to decide if the district court did or didn‘t determine the facts a jury could find and, second, to determine the facts for ourselves if the district court didn‘t.“). And, we should add, even if one were to interpret the district court‘s ruling as, in some way, addressing events from Dodge‘s perspective, we are not bound by that ruling to the extent that it is blatantly contradicted by the video. See id.
Viewing the video, no jury could doubt that Dodge made his decision to fire before he could have realized that Valverde was surrendering (by dropping his gun and raising his hands). The concurrence objects to our use of the video on the ground that it was taken from a significant distance and is grainy, so it does not clearly depict Valverde‘s right hand or his hand movements. But an HDTV-quality image is not necessary for our purposes. There is no question that Valverde pulled out a gun. What then matters (as will be explained in
This court has repeatedly held that officers in similar circumstances acted constitutionally, even when the actions of the person shot were ambiguous. In Wilson, 52 F.3d at 1549, the officer asked to see the decedent‘s hands. When the decedent brought forward a hand holding a gun, the officer fired twice. See id. at 1550. Acknowledging that “perhaps [the decedent] intended to surrender,” id. at 1553, we nevertheless held that there was no constitutional violation. We said that “it is hard to imagine that pointing a .357 magnum in any direction would not cause a reasonable police officer to fear for someone‘s life—if not his own, then the life of a bystander or the gunman himself.” Id. In Larsen we said that the law does not require an officer to “await the glint of steel before taking self-protective action; by then, it is often too late to take safety precautions.” 511 F.3d at 1260 (internal quotation marks and ellipsis omitted). In Phillips v. James, 422 F.3d 1075, 1084 (10th Cir. 2005), when officers knew the suspect in his own house was armed, dangerous, and had threatened them, “[t]here was no reason for [the shooting officer] to have to wait to be shot at or even to see [the suspect] raise a gun and point it at him before it would be reasonable for him, under the[] circumstances [of a SWAT standoff], to shoot [the suspect when the suspect was standing at a window].” And in Thomson, 584 F.3d at 1318–19, we held that an officer was justified in shooting an armed, suicidal man less than ten seconds after confronting him, even though the man had his gun pointed toward his own head when shot, because “[i]t would have been virtually impossible for [the officer] to ascertain whether [the man‘s] gun simply was moving upward or if it was coming down to be aimed at him again,” id. at 1319; the officer “was forced to make a split-second decision,” id.
These binding precedents are not in the least inconsistent with the prevailing view in other circuits. In Valderas v. City of Lubbock, 937 F.3d 384, 390 (5th Cir. 2019), the officer saw a suspect pull a gun from his waistband as officers approached. The court held that the officer reasonably used deadly force against the suspect, even though the suspect had (unobserved by officers) thrown the gun into a car in the brief moments before being shot. See id. at 387, 390. The officer “was not required to wait to confirm that [the suspect] intended to use the gun before shooting“; “[o]ur circuit has repeatedly”
held that an officer‘s use of deadly force is reasonable when an officer reasonably believes that a suspect was attempting to use or reach for a weapon.” Id. at 390. In Jean-Baptiste v. Gutierrez, 627 F.3d 816, 818–19, 821 (11th Cir. 2010), the court granted qualified immunity to an officer who shot a fleeing robbery suspect who held a gun but, by his version of events, did not point it at officers, because “[t]he law does not require officers in a tense and dangerous situation to wait
Several decisions illustrate that an officer does not violate the
In short, Dodge‘s decision to shoot Valverde once he observed him draw a gun is exactly the type of split-second judgment, made in “tense, uncertain, and rapidly evolving” circumstances, “that [courts] do not like to second-guess using the 20/20 hindsight found in the comfort of a judge‘s chambers.” Thomson, 584 F.3d at 1318 (internal quotation marks omitted).
The above discussion disposes of most of Plaintiff‘s arguments that Dodge acted unreasonably in using deadly force. We now address the remaining ones.
Plaintiff also argues that the opinion of its police-practices expert demonstrates the unreasonableness of Dodge‘s belief that Valverde posed an imminent danger. Plaintiff‘s police-practices expert opined in an affidavit that:
An individual who has his empty hands up near his head, incompliance [sic] with the officer‘s command to do so, does not pose an immediate threat of death or serious bodily injury and does not pose a threat to the safety of the officers or others. A reasonable officer would not perceive that Mr. Valverde posed an immediate threat to the safety of Dodge or others.
Aplt. App., Vol. II at 454–55. We agree that a reasonable officer would not believe that a suspect with his empty hands near his head poses a threat. But the expert‘s opinion does not address the situation from Dodge‘s perspective: that is, that Dodge had to make a split-second decision in reaction to Valverde‘s drawing a gun. Absent an explanation of why it was unreasonable for Dodge to act immediately upon seeing Valverde pull out a gun, the expert‘s affidavit is unpersuasive.
Plaintiff also points out that none of the five other SWAT team officers fired a weapon. She contends that their decisions to withhold fire provide circumstantial evidence that a reasonable officer would not have believed Valverde to be an immediate threat of death or serious bodily injury. But the issue is whether a reasonable officer in Dodge‘s position would have believed Valverde was armed and dangerous. Two of the officers were to Valverde‘s left and did not see the gun in his right hand. The K-9 officer was further back but did not see a gun in Valverde‘s hand. And the second officer coming from Valverde‘s right had not yet rounded the SUV and did not see Valverde until after the shooting. Rodriguez did see Valverde with the gun, but Rodriguez was crouching down on the sidewalk and was in no position to fire a weapon. Also, the lead officer coming around the SUV said that when he first saw Valverde, he was pointing his gun at the van. He warned the officer coming behind him; but he heard the shots just as he got the words out. Thus, Dodge was the only officer besides Rodriguez who saw Valverde draw his gun, and Valverde was facing Dodge at the time; the failure of the other officers to fire is of little relevance. See Larsen, 511 F.3d at 1263 n.4 (fact that officer‘s partner did not fire did not support argument that officer‘s use of deadly force was unreasonable because suspect, armed with a knife, was moving toward officer, not partner).
Plaintiff argues that our decision in Walker v. City of Orem, 451 F.3d 1139 (10th Cir. 2006), supports his position. We disagree. In that opinion we said that the jury could have found that the officers were unreasonable in believing that the victim was carrying a gun. See id. at 1159–61. Here, there is no dispute that Valverde had a gun in his hand. Of course, it would have been unreasonable for Dodge to shoot Valverde if (1) Valverde did not have a gun and (2) Dodge was unreasonable in thinking otherwise. But that is not this case.
Plaintiff also claims support in eight out-of-circuit opinions. But not only can they
Plaintiff‘s final case turns on unusual facts that are far different from ours. In Brandenburg v. Cureton, 882 F.2d 211, 212–13 (6th Cir. 1989), officers—who had come to the victim‘s property to serve a peace warrant requiring him to leave the property—had departed the property after the victim fired warning shots. The victim followed officers to the property gate and put down his rifle while closing the gate. See id. at 213. Officers instructed him to comply with the warrant and not pick up his rifle. See id. Even after a warning shot from the officers, the victim picked up the rifle and was shot by an officer. See id. The court said that a jury could find that the officer did not reasonably feel threatened by the victim. See id. at 215. We express no view on the merits of that decision, noting only that it is a far cry from the situation presented here.
Finally, Plaintiff asserts that “[a] reasonable officer would have had time to see there was no gun in [Valverde‘s] hand and that he was not a threat at the time he was shot, including a shot to the back.” Aplee. Br. at 19. He relies on this court‘s statement that “circumstances may change within seconds eliminating the justification for deadly force.” Durastani, 607 F.3d at 666 (emphasis added). But here Dodge began firing less than a second after Valverde drew his gun and Dodge stopped firing within a second of when he started. And his use of his weapon was not an exercise in sharpshooting in controlled circumstances. He could not be sure that his shots would disable Valverde. Indeed, two of the five shots completely missed their target. In the circumstances, it was hardly unreasonable for Dodge to wait a second (literally) after first firing his gun before reassessing the situation.
C. Recklessness Before the Shooting
Plaintiff contends that even if Dodge was entitled to use deadly force based on
To resolve Plaintiff‘s first issue, we relied on the first prong of qualified immunity, holding that Dodge did not violate Valverde‘s
Plaintiff‘s general proposition is a correct statement of the law of this circuit. “Our precedent recognizes that the reasonableness of the use of force depends not only on whether the officers were in danger at the precise moment that they used force, but also on whether the officers’ own reckless or deliberate conduct during the seizure unreasonably created the need to use such force.” Pauly, 874 F.3d at 1219 (brackets and internal quotation marks omitted); Cox v. Wilson, 959 F.3d 1249, 1255–56 (10th Cir. 2020) (following Pauly but noting that it is unclear from recent Supreme Court authority where the Court stands on the matter).
Nevertheless, Dodge is entitled to qualified immunity with respect to this theory of liability. It is unnecessary for us to consider whether his conduct was in fact reckless because Plaintiff has not shown that Dodge violated clearly established law. In this circuit, to satisfy the burden of showing that the officer‘s conduct violated clearly established law, “the plaintiff must point to 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.” Callahan v. Unified Gov‘t of Wyandotte Cty., 806 F.3d 1022, 1027 (10th Cir. 2015) (internal quotation marks omitted). “[E]xisting precedent must have placed the statutory or constitutional question beyond debate.” Mullenix, 136 S. Ct. at 308 (internal quotation marks omitted). The clarity of the law must be viewed “in light of the specific context of the case, not as a broad general proposition.” Pauly, 874 F.3d at 1222 (internal quotation marks omitted).
Plaintiff cites two published opinions as clearly establishing that Dodge was reckless. We are not persuaded. The two cases are Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1997), and Estate of Ceballos v. Husk, 919 F.3d 1204 (10th Cir. 2019). Both have a similarity to this case. In each, what we held to be reckless was a police onslaught at the victim. In Allen there was evidence that officers ran up to the victim‘s car—with one officer apparently screaming while running up and shouting at him to get out of his car—and tried to wrench the gun from his hands and open the passenger door. See id. at 839, 841. In Estate of Ceballos there was evidence that the officers quickly approached the victim, screamed at him to drop the bat he was
III. CONCLUSION
We REVERSE the district court‘s denial of summary judgment in favor of Defendant Dodge.
19-1255, Valverde v. Dodge
MATHESON, Circuit Judge, concurring:
I concur in reversing the district court‘s grant of summary judgment. But I would not decide whether Sergeant Dodge was entitled to qualified immunity based on prong one—that his conduct violated the Constitution. I have concerns about our interlocutory jurisdiction to review his arguments on that issue. I would reverse instead based on prong two—whether the Estate has shown that Sergeant Dodge‘s shooting of Mr. Valverde violated clearly established law.
1. Prong One - Constitutional Violation and Jurisdiction Concern
On appeal of a denial of qualified immunity, we lack interlocutory jurisdiction to review a “district court‘s conclusions as to what facts the plaintiffs may be able to prove at trial.” Sawyers v. Norton, 962 F.3d 1270, 1275 (10th Cir. 2020) (quotations omitted).1 The only relevant exception here is when “the version of events the district court holds a reasonable jury could credit is blatantly contradicted by the record.” Id. at 1281 n.10 (quotations omitted); see Scott v. Harris, 550 U.S. 372, 380 (2007) (explaining a court should not adopt a fact that “is blatantly contradicted by the record, so that no reasonable jury could believe it” when ruling on a summary judgment motion).
If Sergeant Dodge would accept the district court‘s factual findings, we would have jurisdiction to review legal questions about prong one of qualified immunity. See Henderson v. Glanz, 813 F.3d 938, 948 (10th Cir. 2015); Cooper v. Sheehan, 735 F.3d 153, 158 (4th Cir. 2013).2 But he falls
After careful study, I do not think the video blatantly contradicts the district court‘s determination that a reasonable jury could credit the Estate‘s version of events. Shot from more than 5,000 feet, the video‘s pixelated, blurry images do not clearly depict Mr. Valverde‘s hand movements. Further, the angle of the video shows Mr. Valverde‘s back and left side. It does not clearly show his right hand, which allegedly grabbed and dropped the gun. And it does not show his front side as viewed by Sergeant Dodge.
At summary judgment, the Estate contended Mr. Valverde had discarded the gun, put up his visibly empty hands, and was descending to the ground within 2.5 seconds of the encounter. App. at 319, 594 (citing video at 00:50-2:30). Sergeant Dodge countered that Mr. Valverde took at least 5 seconds to back away and successfully pull the gun from his waistband. Id. at 135-36 (citing video at 00:16-03:19 and 05:16-29). The video is not as clear to me as it is to the majority. And it does not render the Estate‘s factual version a “visible fiction.” Scott, 550 U.S. at 381.3
The majority states we can review whether the district court failed to (1) account for Sergeant Dodge‘s split-second decision and (2) view the facts from the officer‘s perspective. See Maj. Op. at 17-18. It is not evident the court made these errors. The court did not specify that the incident spanned six seconds or state each fact from Sergeant Dodge‘s point of view. But it cited to and described the events depicted on the video, indicating the court could not have failed to notice the short time frame. See, e.g., Estate of Valverde, 2019 WL 2992027, at *3 (describing the video and its aerial perspective). And it “examine[d] the apparent need for the use of force based on the circumstances as they appeared to officers on the scene.” Id. (emphasis added).4
Because the majority‘s legal error points are at least debatable, and Sergeant Dodge‘s factual arguments jurisdictionally suspect, I would move to the more
2. Prong Two - Clearly Established Law
Whether the district court properly denied qualified immunity to Sergeant Dodge turns on whether the Estate has shown that his challenged conduct violated clearly established law. See Pearson v. Callahan, 555 U.S. 223, 232 (2009).5 Clearly established law requires “a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts.” Estate of Booker v. Gomez, 745 F.3d 405, 427 (10th Cir. 2014) (quotations omitted). Precedent on excessive force must “squarely govern[] the specific facts at issue.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (per curiam) (quotations omitted).
To meet its burden, the Estate offers Walker v. City of Orem, 451 F.3d 1139 (10th Cir. 2006); Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1997); and Estate of Booker v. Gomez, 745 F.3d 405 (10th Cir. 2014). Aplee. Br. at 37, 42–46.6 It contends that although these cases “are not factually identical to this case,” they show that shooting an individual who is “effectively subdued” violates the
The Estate‘s cases, however, do not “place[] the . . . constitutional question beyond debate.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quotations omitted). It has “failed to identify a case where an officer acting under similar circumstances” violated the
In Walker, a family called the police to find their suicidal son. 451 F.3d at 1156–57. After a nighttime car chase, police cornered the son in the family‘s driveway. Id. at 1157. The son exited his vehicle, drew a small knife from his pocket, and held it to his wrist. Id. at 1158. The family, observing from the driveway, shouted to the officers that he was unarmed. Id. The officers did not tell the son to stop or drop the knife, and the son did not advance toward the officers. Id. Believing the son had aimed a gun at him, one officer pulled his weapon and shot him in the right hip. Id. The son then staggered toward a second officer, who shot him twice in the chest. Id. at 1158–59.
The police radio informed them that he “was suicidal, not homicidal.” Id. at 1159. Onlookers had yelled that he was unarmed. Id. at 1160.
Walker held, under its facts, that officers can violate the
In Allen, police were told an armed, potentially suicidal suspect had threatened family members and left his sister‘s home. 119 F.3d at 839. When officers arrived at the home, the suspect, Mr. Allen, sat in his car with a gun in his right hand. Id. Despite the officers’ repeated orders to drop the gun and attempts to seize it, Mr. Allen pointed it at one officer and swung it toward two others. Id. The officers fired into the vehicle, striking and killing Mr. Allen. Id.
Mr. Allen‘s family brought a
Allen would not have made it “clear to a reasonable officer that his conduct was unlawful in the situation [Sergeant Dodge] confronted.” Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (quotations omitted). Unlike the officers in Allen, Sergeant Dodge had only seconds to react to a suspect who had pulled out a gun. Allen did not consider a factually similar scenario with rapidly evolving circumstances. Instead, it addressed when an officer violates the
violent physical force against a . . . detainee who already has been subdued and does not present a danger to himself or others.” Id. at 428 (quotations omitted)
Again, Estate of Booker is factually distinguishable. Unlike the detainee there, Mr. Valverde was not physically restrained when force was used. Nor did the circumstances in Estate of Booker evolve as rapidly in a comparably compressed time span.
Finally, the Estate‘s argument that the district court correctly relied upon the clear weight of out-of-circuit authority is also unconvincing. Aplee. Br. at 36–38, 46–53. Although the majority analyzes these cases under prong one, I agree that they are “readily distinguishable.” See Maj. Op. at 25.
I therefore conclude the Estate has not met its burden to show clearly established law.
* * * *
Although we may lack interlocutory jurisdiction to review the district court‘s factual findings, the Estate has failed to show clearly established law. It thus has not carried its burden to overcome Sergeant Dodge‘s summary judgment defense of qualified immunity. I concur in the reversal of the district court‘s denial of summary judgment.