Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01873-REB-OES

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1873-REB-OES LEONARD A. TRUJILLO, Plaintiff(s), v. GARY M. HISE, GERALD WHITMAN, Chief of Police of the City and County of Denver, Colorado; and the CITY AND COUNTY OF DENVER, COLORADO, Defendant(s). DEFENDANTS' REPLY TO "PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT" The Defendants, City and County of Denver ("Denver"), Officer Gary Hise ("Officer Hise"), and Chief Gerald Whitman ("Chief Whitman"), by and through their respective undersigned counsel, hereby submit the following Defendants' Reply to "Plaintiff's Brief in Opposition to Defendants' Motion for Summary Judgment" and state as follows: I. INTRODUCTION Given the little relevant "evidence" presented by the Plaintiff in his response, he essentially asked this Court to find that all police pursuit accidents can create a federal Fourth and Fourteenth Amendment claim. The Plaintiff underestimated the U.S. Supreme Court's stance against permitting plaintiffs from converting alleged negligence claims, or even claims of "reckless disregard," into federal claims. Even with all

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favorable inferences going to the Plaintiff, he did nothing more than present evidence of an unfortunate automobile accident, no worse than the auto accident that occurred in Sacramento v. Lewis, 523 U.S. 833 (1998). There is no substantive evidence showing that the police decided on a deliberate plan to run down the Plaintiff. In its holdings in Brower v. County of Inyo, 489 U.S. 593 (1989) and Sacramento v. Lewis, the U.S. Supreme Court clearly required more evidence than is presented in this case to establish a federal Fourth or Fourteenth Amendment claim. Without a federal constitutional violation, the Plaintiff's claims against the City and Chief Whitman also fail as a matter of law. Without legally sufficient evidence of an alleged intent to run the Plaintiff down, the Plaintiff's intentional tort claims fail as a matter of law. II. ARGUMENT A. To Present a Genuine Issue of Material Fact on Officer Hise's Intent, the Plaintiff Inappropriately Relied on Several Depositions. To avoid summary judgment, it is well settled that the non-moving party must present more than "a mere scintilla of evidence." Johnson v. Lindon City Corp., 405 F.3d 1065, 1068 (10th Cir. 2005) quoting Lawmaster v. Ward, 125 F.3d 1341, 1347 (10th Cir. 1997). There must be enough evidence to allow a reasonable jury to find for the non-moving party. Lawmaster, 125 F.3d at 1347. The non-movant "may not rest upon mere allegations or denials" of the pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d. 202 (1986), but must "set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc., v. First

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Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). It is not enough that the evidence be "merely colorable" or anything short of "significantly probative." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250 (1986). It is also well settled that the Plaintiff's supporting affidavits and deposition testimony must be based upon personal knowledge and set forth facts that would be admissible in evidence. Hall v. Bellmon, et al., 935 F.2d 1106 (10th Cir. 1991). "conclusory and self-serving affidavits are not sufficient." Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995); Hall v. Bellmon, 935 F.2d at 1111. See also Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In this case, there are three eyewitnesses with the potential to testify to some degree as to how the Plaintiff was run over by the Officer Hise's patrol car: Officer Hise, the Plaintiff, and Luz Hortencia Cera Flores.1 Yet, Plaintiff's counsel inappropriately cited to deposition testimony by witnesses who did not personally witness the incident in question, in addition to inappropriately distorting the deponents' statements. For example, to support Plaintiff's Statement of Undisputed Fact No.1 (that Hise intended to apprehend the Plaintiff "by using his police cruiser"), the Plaintiff cited to four (4) depositions: Chief Whitman, Commander Sandoval, Mr. Paul Schultz and Officer Hise. It is undisputed that Officer Hise was the only one of these four witnesses that witnessed the incident in question. See Plaintiff's Exhibits 3 (Whitman's deposition), Exhibit 4 (Sandoval's deposition) and Exhibit 6 (Schultz' deposition). As for Officer
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Defendants believe that Ms. Cera Flores's video statements and part of her affidavit fail to comply with Fed.R.Civ.P. 56(e). Therefore, Defendants will move to strike Exhibits 1, 8 and part of Exhibit 2. 3

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Hise' deposition, not only is the page cited by Plaintiff missing from his exhibit (and such statement should be stricken) it is absolutely clear that the Plaintiff cannot point to any statement by Officer Hise where he said he intended to use his police car to apprehend the Plaintiff. For at least three reasons, the Plaintiff cannot rely on his experts in this case to establish that Officer Hise deliberately chose to use his vehicle to run the Plaintiff down. First and foremost, they were not eyewitnesses. Second, they cannot testify as to Officer Hise's intent. Third, they have an insufficient factual basis to draw reasonable inferences from the record regarding Officer Hise's intent as demonstrated by the Defendants' pending motion to exclude their testimony. See Defendants' Opening Brief, p. 22; Defendants' Motion for Hearing to Exclude Testimony of Plaintiff's Expert Witnesses, pp. 7-8. For example, Mr. John Smith could not render an opinion as to where the point of impact was, nor could he opine as to the rate of speed, the rate of acceleration, or how far Officer Hise had to travel back down the driveway before he ran into the Plaintiff. See id. Turning back to the three eyewitnesses identified by the Plaintiff, none of them can or did present evidence that Officer Hise intended to run the Plaintiff down, certainly no more than the witnesses did in the Sacramento Decision. In Sacramento, the police officer chased the fleeing motorist at high speeds and close enough where a collision was virtually certain. Sacramento, 523 U.S. at 837. Certainly, Officer Hise never testified that he intended to use his patrol cruiser to stop the Plaintiff, i.e., "seize" him, despite the Plaintiff's efforts to distort his deposition testimony. As demonstrated in the

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Defendants' opening brief, the Plaintiff remembers very little of the incident and had his back turned to the patrol car. See Defendants' opening brief, Trujillo Depo, Ex. No. 1, p.48, ll.17-23; p.70, ll.16-24; p.73, ll.18-22; p.184, ll.13-22. Having very little recollection of the incident, the Plaintiff cannot testify that Officer Hise deliberately tried to run him down. The last remaining eyewitness, Ms. Cera Flores, merely described that she saw Officer Hise's car run over the Plaintiff while the Plaintiff was trying to run away. Neither the Plaintiff nor Ms. Cera Flores can testify as to Officer Hise's intent. Nowhere in her testimony, or anyone else's testimony, does she say that Officer Hise was looking at the Plaintiff at the point of impact. Such testimony would be mere speculation and not admissible. If the Plaintiff's and Ms. Cera Flores' accounts are sufficient to support the necessary intent for a Fourth Amendment claim, then virtually every police auto pursuit accident can be considered a Fourth Amendment "seizure" case, including Sacramento v. Lewis. B. The Plaintiff's Response Ignored the Clear Mandate of the U.S. Supreme Court in Brower and Sacramento Regarding Fourth Amendment Claims. The Plaintiff ignored or misunderstood the U.S. Supreme Court's clear announcement and confirmation that a termination of a plaintiff's movement by itself is insufficient to constitute a seizure within in the meaning of the Fourth Amendment. The Court expressed a strong stance against allowing every police pursuit case to become Fourth Amendment case. The Plaintiff failed to demonstrate how Sacramento v. Lewis does not dispose of the Fourth Amendment claim in this case. Just like this case, there was a police pursuit.

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Just like this case, the police pursued a fleeing criminal suspect very closely. Finally, just like this case, the police struck one of the fleeing suspects. However, in Sacramento, the criminal suspect died. Yet, in Sacramento, the Court refused to find that there was a "seizure" within the meaning of the Fourth Amendment. The Plaintiff failed to demonstrate how Sacramento did not bar the Fourth Amendment claim in this case. See also, Campbell v. White, 916 F.2d 421, 423 (7th Cir. 1990) (no seizure where police accidentally killed a fleeing motorcyclist). Recognizing the significance of the holding in Sacramento, the Plaintiff tried to distinguish that case. The Plaintiff argued that the fact that Sacramento involved a high speed chase made it distinguishable. Nowhere in the Sacramento did the Court say that a seizure did not occur because of the "high speed" nature of the pursuit. The Court focused on the fact that there was insufficient evidence that the police in Sacramento terminated the criminal suspect's movement "through means intentionally applied." Id. at 844. In contrast to Sacramento, the holding in Brower demonstrated what the Court meant by "means intentionally applied." The police's deliberate police action taken in Brower was objectively clear: a "roadblock" was set up in the criminal's path. No such action was taken in this case. There is no evidence of the police making any plan to stop the Plaintiff's movement. There is no radio dispatch evidence of a police plan to stop the Plaintiff's escape efforts. There is undisputed evidence that Officer Hise followed the Plaintiff into a driveway without running him down, watched him for a short time, and then backed down the driveway when the Plaintiff ran past his patrol car

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toward the street. Officer Hise never testified that he decided on a course of action to block the Plaintiff's movement. Therefore, the Plaintiff failed to demonstrate how this case is sufficiently similar to Brower. C. The Plaintiff Also Failed to Distinguish the Court's Holding in Sacramento with Respect to Fourteenth Amendment Substantive Due Process Claims. Because the Plaintiff failed to distinguish Sacramento, his Fourteenth Amendment due process claim should also be dismissed. In Sacramento, the Court reconfirmed that the Fourteenth Amendment due process clause "does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm." Id. at 848. It announced that "when unforeseen circumstances demand an officer's instant judgment, even precipitate recklessness fails to inch close enough to" result in Fourteenth Amendment liability. Id. at 853 (emphasis added). The Sacramento Court reconfirmed that the appropriate standard to prove a substantive due process claim is to demonstrate that the state action "shocks the conscience." Under the facts in Sacramento, the Court found insufficient evidence to allow the Fourteenth Amendment claim to proceed to the jury. Accordingly, given the similarity in material respects to Sacramento, the Plaintiff's Fourteenth Amendment claim should be dismissed in this case. Officer Hise's actions were objectively reasonable and he is entitled to qualified immunity and dismissal of the claims against him. Without a federal constitutional violation, the Plaintiff's federal constitutional claims against the City and Chief Whitman should also be dismissed.

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D.

The Lack of Intent to Harm Requires the Dismissal of the Plaintiff's State Intentional Tort Claims. Again, the Plaintiff failed to present sufficient evidence from which a jury could

find that Officer Hise intended to harm the Plaintiff. There is no witness who can testify to such an intent. The Plaintiff attempted to salvage his intentional tort claims by focusing on the lack of justification for the use of harmful force. See Plaintiff's Brief, p.18. This affirmative defense only becomes relevant if the Plaintiff proves that there was a harmful intent in the first place. See CJI ­ Civ. 4th 20:1 and 20:5 The Colorado Supreme Court has ruled that a Plaintiff must prove that "the defendant both intended to [physically] contact" the plaintiff and that he "intended [the contact] to be harmful or offensive" in assault and battery torts. See White v. Muniz, 999 P.2d 814, 818 (Colo. 2000). Because the eyewitnesses relied on by the Plaintiff cannot be used to prove intent, the Plaintiff's intentional tort claims should be dismissed. WHEREFORE, for all the foregoing reasons, the Defendants respectfully request that the Plaintiff's complaint be dismissed. Respectfully submitted this 1st day of November, 2005. LUIS A. CORCHADO Assistant City Attorney CHRISTOPHER M.A. LUJAN Assistant City Attorney

By: s/ Luis A. Corchado Luis A. Corchado Christopher M.A. Lujan Assistant City Attorneys 8

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Denver City Attorney's Office Litigation Section 201 West Colfax Ave., Dept. No. 1108 Denver, CO 80202-5332 Telephone: (720) 913-3100 Facsimile: (720) 913-3182 [email protected] Attorneys for Defendants CERTIFICATE OF SERVICE I hereby certify that on this 1st day of November, 2005, I electronically filed the foregoing DEFENDANTS' REPLY TO "PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT" with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses:
· · ·

David J. Bruno [email protected] [email protected] Jeffrey John Clayton [email protected] [email protected] Lonn M. Heymann [email protected] [email protected]

and I hereby certify that I have mailed the document to the following non CM/ECF participants via Interoffice Mail: Alvin J. LaCabe, Jr. Manager of Safety 1331 Cherokee Street Denver, Colorado 80204 s/ Marilyn Barela Marilyn Barela, Legal Secretary Denver City Attorney's Office
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