Free Response to Motion - District Court of Colorado - Colorado

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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, v. GARY M. HISE, UNKNOWN JOHN DOE SUPERVISORS I-IV of the Denver Police Department; UNKNOWN JOHN DOE TRAINING PERSONNEL I-IV of the Denver Police Department; GERALD WHITMAN, Chief of Police of the City and County of Denver, Colorado; and the CITY AND COUNTY OF DENVER, COLORADO, Defendants. ______________________________________________________________________________ PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Plaintiff, Leonard A. Trujillo ("Trujillo"), through his attorney, Lonn M. Heymann of the Walter L. Gerash Law Firm, P.C., hereby responds to Defendants' Motion For Summary Judgment, and attached brief in support, filed on September 20, 2005, as follows: I. INTRODUCTION This is a police misconduct action pursuant to 42 U.S.C. §§ 1983 and 1988. The suit flows from Denver Police Department Officer Gary Hise's ("Officer Hise") vehicular chase and apprehension of pedestrian suspect, Leonard Trujillo ("Trujillo"), on June 26, 2003, resulting in life-threatening injuries to Trujillo. The action also alleges a Monell claim against the City and County of Denver ("City") and a claim against Chief Gerald Whitman ("Chief Whitman") for failure to properly train Officer Hise. Pendant intentional tort and negligence claims are asserted. 1

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II. STANDARD OF REVIEW Summary judgment is a "drastic remedy" which the Tenth Circuit has cautioned should be awarded with "care." Smith v. Conaway, 853 F.2d 789, 792 & n.4 (10th Cir. 1998). In the Tenth Circuit, "[t]he moving party carries the burden of showing beyond a reasonable doubt that it is entitled to summary judgment." Trainor v. Appollo Metal Specialities, Inc., 318 F.3d 976, 979 (10th Cir. 2002). (emphasis supplied). "All inferences arising from the record must be drawn and indulged in favor of the party opposing summary judgment." Stinnett v. Safeway, Inc. 337 F.3d 1213, 1216 (10th Cir. 2003). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict." Id. The role of the district court "is simply to determine whether the evidence proffered by the plaintiff would be sufficient, if believed by the ultimate fact finder, to sustain her claim." Id. III. PLAINTIFF'S STATEMENT OF DISPUTED (AND OTHER MATERIAL) FACTS1 A. Officer Hise Intended to Apprehend Trujillo. 1. Officer Hise believed that a crime had been committed and intended to apprehend

Trujillo using his police cruiser. Chief Whitman Depo., Ex. 3, 30:16-22. Sandoval Depo., Ex. 4, 15:15:-24; 24:16-25; 25:1-6; Hise Dep., Ex. , 63:7-18; Schultz Depo., Ex. 6, 158:9. B. Attempt to Surrender. 2. After leaving the Shell station where Trujillo committed petty larceny of some beef

jerky, and malicious mischief, Trujillo walked or ran west on Evans Avenue and then northbound

Reference to Plaintiff's exhibits will be by "Ex.", preceded only on the first citation by a brief identification of the deposition, affidavit, video taped interview, or transcription/translation, and followed by the page and line number, or minute and second on a video tape. 2

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on the east side of Zuni Street. Ex. 5, 49:9-12; Trujillo Depo., Ex. 7, 179:11-14. 3. Trujillo turned around and realized that there was a police cruiser behind him with

its overhead red-and-blue lights activated. The police cruiser's red-and-blue lights deactivated and then the police cruiser's spotlight illuminated Trujillo. Trujillo stopped and attempted to surrender by putting his hands up, dropping his shirt containing beef jerky. When Trujillo tried to surrender, Officer Hise's police cruiser kept going and hit the curb four or five feet away from Trujillo, causing fear to Trujillo. He turned his back to the police cruiser and ran. Ex. 5, 54:1416; Ex. 7, 40:13-16; 45:20-25; 179-183; 190:10-15. C. The Chase Leads to Another Opportunity to Apprehend Trujillo. 4. To chase Trujillo, Officer Hise entered the 2026 South Zuni driveway at a high

rate of speed. Officer Hise then chased Trujillo eastbound down the driveway which was confined by fences on each side. Smith Depo., Ex. 9, 252:6-25; Cera Flores Aff., Ex. 2 ¶6.b.; Ex. 5, 60:5-7; 61:13-15. 5. Toward the end of the long driveway Trujillo was confronted with aggressive dogs

who were behind a gate or fence, separated from Trujillo and Hise. Hise stopped, remaining in his vehicle while Trujillo was struggling with the dogs. Trujillo was trapped. Officer Hise saw no weapon on Trujillo and waited in his police cruiser for 10 or 12 seconds. Officer Hise was not aware of a third person's presence during his effort to apprehend Trujillo, and did not consider Trujillo to be a threat to a third person. Ex. 2, ¶6.c.; Cera Flores Int., Ex. 8, p.4,6,7, 9; Ex. 5, 23:7-25; 24:1-10; 52: 1-5; 63:1-3, 63:7-25; 64:1-24; 76:20-25. D. The Seizure. 6. While looking over his right shoulder, with no obstruction to his view, Officer

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Hise saw Trujillo running west past his police cruiser on the passenger side. Then, looking over his left shoulder Officer Hise went in reverse to chase Trujillo whom he did not consider to be an imminent threat to himself or anyone else. Officer Hise backed out of the driveway at a rapid acceleration rate, and driving fast when he exited the driveway. Ex. 2, ¶6.d.; Ex. 5, 67:17-23; 68; 69; 76:20-25; 77:1-2; Ex. 9, 255:10-12; 257:13-20; Ex. 8, p.5, p.19; Ex. 7, 70:25; 71:1-25. 7. 8. Trujillo was on the driveway the entire time he ran west. Ex. 2, ¶6.d.; Ex. 8, p.10. Officer Hise claims that although he could not see Trujillo he knew Trujillo was

close. Officer Hise testified that he decided Trujillo was not behind his police cruiser precisely because Officer Hise could not see him. Officer Hise disregarded the possibility that he might hit Trujillo as he backed up his vehicle. Ex. 5, 69-70; 73:9-19; 79:11-18; 80:13-16. 9. Hearing the "rev" of the engine, Trujillo turned his head to the left to see the police

cruiser coming and turned to run southwest when he reached the sidewalk. Near the sidewalk and the entrance to the street, Officer Hise crashed into an object, perhaps a can or a post, on the north side of the driveway. After hitting the object, on the north side of the driveway, Hise caught up with Trujillo at the sidewalk, on the south side of the driveway. Ex. 7, 72:1-18;185:3-7; 187:22-25; 188:1; Ex. 8, p.11 ("It revved back suddenly"); Ex. 2, ¶6.e. and f.; Ex. 8, p.4, 6,7 (Daniel Romero, Denver Police Department interviewer: "... Draw the young man in blue and the car in the black.); Cera Flores Video Taped Interview, Ex. 1, 7:25 (conventionally filed VHS tape). E. Excessive Force. 10. The rear of Officer Hise's police cruiser hit Trujillo at the small of his back while

he was standing up and facing southwest, propelling Trujillo with his hands out from the sidewalk

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on to the street. Although Officer Hise testifies that he noticed no obstructions on the way in to the driveway, on the way out of the driveway near the sidewalk he felt a bump, and he started to feel an instability in his right rear tire that remained constant. Ex. 2, ¶6.e.; Ex. 8, p.4; Ex. 7, 185:3-17; 187; Ex. 8, p.4-5; Ex. 5, 108:20-25; 109:1-9; 104:1-17; 80:21-25; 81:1-4; 82:6-20. 11. As Officer Hise continued backing and turning his police cruiser southward into

the street, he backed over Trujillo. Hise changed course and drove northbound, pinning Trujillo to the ground with the right rear tire of the police cruiser before coming to a halt. Ex. 7, 66:3-9; 183:22-25; 184:1-8; 185:8-10; Ex. 8, p.12; Woosley Dep., Ex. 10, 23. 12. During his apprehension, Trujillo suffered severe, life-threatening injuries. Ex. 9,

91:22-25; 92:1-9; 107:14-25; 108:1-7; 109-112; 191:9-23; 218:20-25; 218-219. F. Policy and Training Regarding Operation of a Police Cruiser and Use of Force. 13. The policies, procedures, and training of the Denver Police Department, whether

in a driver skills or use of force context, do not make the distinction between the use of a police cruiser in the pursuit of another vehicle versus pursuit of a pedestrian suspect. Ex. 3, 40:5-25; 41:1-10; Chagolla (30(b)(6) Designee for the City and County of Denver) Depo., Ex. 11, 7:3-5; 25:22-25; 31:21-25; 32:1-6; 33. 19:14-18; Ex. 5, 120:23-25; 121:1-1-2. 14. Officer Hise participated in the two types of driving-related training provided

directly by the Denver Police Department for officers like Officer Hise: Performance Driving (for "seasoned" officers) and Pursuit Intervention Technique Training (PIT). Although he cannot recollect participating, Officer Hise was trained to use the Smith system of driving which dictates that an officer must always back up looking over their right shoulder. Officer Hise was trained that while driving a vehicle during emergency situations the increase in adrenaline causes "tunnel

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vision" and a loss of fine motor skills. Officer Hise's in-service training on vehicle pursuits did not include training on pursuits of pedestrian suspects although he remembers a "roll-call-type training" to never use a car to apprehend a fleeing pedestrian. Ex. 11, 8-14, 16-19; 22:15-18; Ex. 5, 116:17-23; 120-124; Ex. 3, 50; Ex. 11, 20:20-25 . 15. Chief Whitman, who is responsible for implementing the policies and procedures of

the Denver Police Department, testified that he doesn't know what would be put in a training program intended to instruct officers driving police cruisers regarding the pursuit of pedestrian suspects. Ex. 3, 26:3-9; 42:7-10. ("As far as a specific car chasing a person training,' I don't believe there is any, and I really don't know what you would put in that other than your typical `how to drive the car and handle it' type.") 16. Chief Whitman testified that: "The pursuit policy of car-to-car really limits the

discretion on what we can do to protect the public because a fleeing person is not, you know, in a vehicle." Ex. 3, 47:24-25; 48:1-11. 17. Chief Whitman testified that the pursuit of a pedestrian suspect by a police officer

in a vehicle is a usual and recurring ("typical") circumstance confronting a police officer. Ex. 3, 49:19-23. Ex. 3, 40:18-25; 41:1-10. IV. ARGUMENT Defendants contend that qualified immunity defeats Plaintiff's § 1983 claims. "Once the defendant pleads qualified immunity, the burden shifts to the plaintiff to demonstrate (1) the defendant's conduct violated the law, and (2) the relevant law was clearly established when the alleged violation occurred." Mignault v. Peak, 158 F.3d 1131, 1139 (10th Cir. 1998). A. Officer Hise Exceeded the Fourth Amendment Limitations on the Use of Force.

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Under the Fourth Amendment, "[w]henever an officer restrains the freedom of a person to walk away, he has seized that person." Tennessee v. Garner, 471 U.S. 1, 7 (1985). The use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment. Id. The reasonableness of a seizure depends not only on when it was carried out, but on "how it is carried out." Id. at 8. "[N]otwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The intrusiveness of a seizure by means of deadly force is unmatched." Id. at 9. However, where the suspect poses an imminent threat of serious physical harm, either to the officer or others, it is not constitutionally unreasonable to use deadly force...". Id. at 11; Graham v. Connor, 490 U.S. 386, 396 (1989); Tennessee v. Garner, 471 U.S. 1, 11 (1985); see also Wilson v. Meeks, 52 F.3d 1547, 1552-53 (10th Cir. 1995)(noting that the application of the reasonableness standard to § 1983 excessive force cases is clearly established). Deadly force is "force that the actor uses with the purpose of causing or that he knows to create a substantial risk of causing death or serious bodily harm." Ryder v. City of Topeka, 814 F.2d 1412, 1416 & n.11 (10th Cir. 1987). A § 1983 claim of excessive force in violation of the Fourth Amendment, whether deadly or not, is analyzed by determining whether the officer's actions were objectively reasonable in light of the surrounding facts and circumstances. Graham v. Connor, 490 U.S. 386, 397 (1989); Allen v. Muskogee, 119 F.3d 837, 840 (10th Cir. 1997). Courts judge "the use of force from the perspective of the reasonable officer on the scene, rather than hindsight. Zuchel v. Spinharney, 890 F.2d 273274 (10th Cir. 1998). Generally, among the factors to consider are the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect is actively resisting arrest or attempting to evade arrest by flight.

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Graham, 490 U.S. at 396. The reasonableness of the police officer's actions depends both on whether the officer was in danger at the precise moment that he used force and on whether the police officer's own reckless or deliberate conduct "immediately connected with actual seizure" unreasonably created the need to use such force. Medina v. Cram, 252 F.3d 1124, 1131-32 (10th Cir., 2001); Sevier v. City of Lawrence, 60 F.3d 695, 699 (10th Cir. 1995); See Bella v. Chamberlain, 24 F.3d 1251, 1256 & n.7 (10th Cir. 1994). 1. Defendants' threshold argument that Officer Hise did not seize Trujillo fails.

Defendants have made a threshold challenge to whether this matter should be analyzed in terms of the Fourth Amendment protection from unreasonable search and seizure or in terms of the Fourteenth Amendment right to substantive due process. Defendants argue that Officer Hise merely monitored Trujillo using his police cruiser as a means of transportation, rather than as a tool to apprehend Trujillo. They argue that their characterization of the case places it within the framework of Sacramento v. Lewis where the injuries to the plaintiff were analyzed in terms of the deprivation of due process. 523 U.S. 833 (1998). However, inferences from the record viewed in the light most favorable to Trujillo raise a genuine issue of material fact whether Hise intended to apprehend Trujillo by using the police cruiser itself, i.e. to seize him. a. Sacramento is inapplicable under the circumstances.

In order for a police officer to have seized a suspect during a chase there must have been "a government termination of freedom of movement through means intentionally applied." Brower v. County of Inyo, 489 U.S. 593, 596-597 (1989). In Sacramento, the Court relied on its language in Brower that "no Fourth Amendment seizure takes place where a `pursuing police car sought to stop the suspect only by the show of authority represented by flashing lights and

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continuing pursuit,' but accidentally stopped the suspect by crashing into him." Sacramento v. Lewis, 523 U.S. 833, 844. (1998)(quoting Brower). Defendants' brief spells out in detail the factual distinctions between Sacramento and this case. Here, drawing all inferences in favor of Plaintiff, Officer Hise was not engaged in the typical high speed pursuit contemplated in Sacramento or Brower. Id. Rather, Trujillo had tried to surrender and Officer Hise had another clear opportunity to apprehend Trujillo by foot. Ex. 7, 180:16-19; Ex. 5, 63; 76:20-25. As discussed below, there is a genuine issue of fact whether Officer Hise chased Trujillo, a pedestrian suspect, with the intent to seize Trujillo, using the police cruiser as a means intentionally applied. Brower, 489 U.S. at 596-597; Tennessee v. Garner, 471 U.S. 1, 7 (1985). b. There is a genuine issue of fact whether Officer Hise intended to

apprehend Trujillo by using his police cruiser. The defense brief argues that Officer Hise was merely monitoring Trujillo. However, Hise's commanders and Hise himself recognize that he intended to apprehend Trujillo. Ex. 3, 30:16-22. Ex. 4, 24:16-25; 25:1-6; Ex. 5, 63:7-18. Given the facts on the record, there is a genuine issue of fact whether Officer Hise intended to use the police cruiser itself to stop Trujillo. Ex. 2, ¶6.a. and b; Ex. 6, 158:9; Ex. 4, 25:20-25; 26:1-14. Early in the chase, Trujillo attempted to surrender. Ex. 7, 180:16-19. Trujillo will testify that the overhead lights on the cruiser turned off and the spot light was directed at Trujillo. Ex. 7, 179:25; 180:1-4. When the car did not stop, and continued directly toward him without slowing, Trujillo turned and ran north. Ex. 7, 180:18-21. The police cruiser came toward Trujillo and hit the curb near Trujillo. Ex. 7, 180:19-20.

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Officer Hise then followed Trujillo east down the driveway at 2026 South Zuni. Ex. 5, 60:5-7; Ex. 2 ¶6.b. Officer Hise drove on to the driveway at a high rate of speed. Ex. 9, 252:625. Cera Flores will testify that when Trujillo reached the end of the long driveway he stopped at a fence behind which there was a barking dog. Ex. 2, ¶6.b. Officer Hise stopped the police cruiser near Trujillo toward the end of the driveway while Trujillo was being attacked by the dogs. Ex. 8, p.4., p.6-7. Trujillo was effectively trapped, with a fences on three sides, dogs barking at him over the fence to the adjacent property, and Officer Hise's police cruiser to his west. Officer Hise remained in his vehicle for 10 to 12 seconds. Ex. 5, 63:1-3. When Officer Hise halted at the east end of the driveway for a period of time, he had another opportunity to apprehend Mr. Trujillo, perhaps on foot. Although intending to apprehend Trujillo, Officer Hise nonetheless remained in his police cruiser and waited for Trujillo to move. Trujillo then doubled back and ran west-bound on the driveway. Ex. 2, ¶6.d.; Ex. 3, 30:16-22; Ex. 4, 15:15:-24; 24:16-25; 25:1-6; Ex. , 63:7-18; Ex. 6, 158:9. Over his right shoulder Officer Hise watched Trujillo run past his passenger-side window. Ex. 5, 67:17-23; 68:6-11. Officer Hise then looked over his left shoulder and went in reverse, accelerating his police cruiser rapidly and, eventually, was driving fast. Ex. 5, 68: 19-25; 76:20-25; 77:1-2; Ex. 9, 255:10-12; 257:13-20; Ex. 8, p.5, p.19; Ex. 7, 70:25; 71:1-25. Cera Flores will testify that Trujillo remained in the driveway. Ex. 2, ¶6.d.; Ex. 8, p.10. Cera Flores will testify that when she saw Officer Hise's police cruiser toward the west end of the driveway she heard a crash on the north side of the driveway and believed that the police cruiser had hit a post or the trash can on the north side the driveway. Ex. 2, ¶6.f.; Ex. 8, p.4, p.6. She will testify that the police cruiser, after hitting the post or trash can, veered south and hit Trujillo with the back right rear of the

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police cruiser. Ex. 2, ¶6.e.; Ex. 8, p.6. p.7. Trujillo and Cera Flores will testify that the police cruiser backed into Trujillo, hitting him at the small of his back and propelling him into the street. Ex. 2, ¶6.e.; Ex. 8, p.4.-5; Ex. 7, 185:3-17; 187:1-8; 187:22-25. Trujillo and Cera Flores will testify that Officer Hise's police cruiser continued to back up while turning south and ran over Trujillo. Ex. 7, 183:22-25; 184:17; 185:8-10; Ex. 8, p.11-12. Then Officer Hise's police cruiser changed directions dragging Trujillo forward, north-bound, and driving up on him again. Ex. 8, p.12.; Ex.7, 66:3-9; 184:8. Officer Hise then brought his police cruiser to a halt. Ex. 8, p.12. Trujillo was found pinned under the front side of the rear right tire. Ex. 10, 23. To the extent that there were policies, procedures, usages or training that provided guidance to Officer Hise under these circumstances, Officer Hise ignored them. Officer Hise was vaguely aware of a policy of the Denver Police Department to never use a car to apprehend a fleeing pedestrian. Ex. 5, 120:23-25; 121:1-15. Officer Hise ignored the Smith system of driving which trains to always back up looking over your right shoulder. Ex. 11, 12:14-25; 13:1-15; 14:3-6. Under the circumstances, Hise conduct is aggravated because he was trained that when driving a vehicle under emergency circumstances, an officer will experience tunnel vision and lose fine motor skills and will "start hitting cones." Ex. 11, 16:7-25; 17; 18:1-2; 19-24. With all inferences taken in the light most favorable to Plaintiff a jury could reasonably determine that Officer Hise decided to ignore Trujillo's effort to surrender and then decided not to apprehend Trujillo at the end of the driveway although either would be safe and effective. There are also genuine issues of material fact whether Officer Hise "revved" his car in reverse, hit an object, and turned south. Based on these facts, a jury could reasonably find that Officer Hise

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decided to end the chase using his vehicle as a deadly weapon to seize Trujillo. 2. Officer Hise deprived Trujillo of his Fourth Amendment right to be free from

an unreasonable seizure. There is a genuine issue of fact whether Officer Hise unreasonably seized Trujillo. Graham v. Connor, 490 U.S. 386, 396 (1989); Tennessee v. Garner, 471 U.S. 1, 11 (1985). The use of deadly force under the circumstances was unreasonable because, as discussed above, there was no imminent threat. Tennessee v. Garner, 471 U.S. at 11. Analyzing in terms of an ordinary seizure, the circumstances did not justify intentionally stopping Trujillo with the police cruiser. Graham v. Connor, 490 U.S. at 396. As discussed above, Trujillo was a fleeing from an alleged minor property crime, posed not threat to Officer Hise or others, and attempted to surrender. Id. The use of force was also excessive because Officer Hise acted recklessly and unreasonably in the events surrounding the seizure and his conduct immediately led to hitting running over Trujillo. Medina v. Cram, 252 F.3d 1124, 1131-32 (10th Cir., 2001); Sevier v. City of Lawrence, 60 F.3d 695, 699 (10th Cir. 1995); See Bella v. Chamberlain, 24 F.3d 1251, 1256 & n.7 (10th Cir. 1994). As discussed above, Hise ignored Trujillo's effort to surrender and Officer Hise failed to arrest Trujillo by foot when he had an opportunity. 3. Officer Hise deprived Trujillo of his Fourteenth Amendment right to

substantive due process. Assuming that there was no seizure, Trujillo's Fourteenth Amendment substantive due process rights were violated by Officer Hise's conduct which was with reckless intent and which shocks the conscience. Sutton v. Utah State School for Deaf and Blind, 173 F.3d 1226, 1238 (10th Cir. 1999); Williams v. City & County of Denver, 99 F.3d 1009, 1015 (10th Cir. 1996), cert.

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denied, 516 U.S. 118 (1996). As discussed above, Officer Hise testified that after seeing Trujillo running past his passenger window, he went in reverse while looking over his left shoulder. This was in total disregard of his training and common sense. A jury could reasonably find that Officer Hise knew exactly where Trujillo was located and proceeded with reckless intent when he went in reverse. At the very least, there is clear evidence for a jury to reasonably find that Hise intentionally accelerated his police cruiser backward for up to 200 hundred feet down the narrow, fenced driveway without knowing the location of Trujillo, but knowing that Trujillo was behind him or even "close". Ex. 5, 69-70. That amounts to reckless intent because everything Officer Hise did was deliberate in spite of a known substantial risk of harm to Trujillo. Also, a jury could reasonably find that reckless intent existed if Officer Hise was aware of and ignored an obvious risk that Trujillo was behind him, even if Officer Hise did not know that Trujillo was behind him. In addition, since Officer Hise was using a motor vehicle, and Trujillo was on foot, Officer Hise knew that if he ran into Trujillo there would have been serious harm. In spite of this, Officer Hise testifies that he deliberately and recklessly disregarded any risk to Trujillo. Ex. 5, 73:9-19; 79:1118; 80:13-16. Any such reasonable interpretation by a jury would amount to reckless intent. The disparity of circumstances in this case are central to its outrageousness. As a pedestrian, Trujillo tried to surrender when he saw Officer Hise's police cruiser approaching. Hise ignored Trujillo's positive response to his show of authority and precipitated a chase that was bound to get someone hurt. Then Hise had an opportunity to get out of his police cruiser and talk with Trujillo or confront him at the eastern end of the driveway. At no point did Officer Hise make the choice that could have resulted in the apprehension of Trujillo without a police cruiser

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pinning him to the street. The force used was deadly in spite of the absence of threat from Trujillo. Whether Officer Hise, a sworn peace officer, was motivated by malice, laziness, or outrageous recklessness, his choices shock the conscience. 4. Defense Fails. Clearly established relevant law, set forth above, prohibited Officer Hise's conduct which exceeded the Constitutional limitations on the use of force and, therefore, Defendants' qualified immunity defense fails. Mignault, 158 F.3d at 1139. Defendants' counsel properly recognizes that in order to show that the law is sufficiently clear that Officer Hise would have known that his conduct was unconstitutional, an exact or precise factual correlation between existing law and the circumstances of the case at bar is not required. See Hilliard v. City & County of Denver, 930 F.2d 1516, 1518 (10th Cir. 1991). Accordingly, the following established lines of appellate case law meet the clearly established law requirement: a. High speed car-to-car or car-to-motorcycle cases provide a line of Clearly Established Law Existed and Defendants' Qualified Immunity

clearly established law that puts a reasonable officer on notice of a pedestrian suspects Constitutional rights. As the defense shows, it is clearly established law that a police officer, whether seizing a suspect or not, is prohibited from using excessive force in the pursuit of a suspect while in a carto-car high speed chase. Williams v. City & County of Denver, 99 F.3d at 1015; Sacramento v. Lewis, 523 U.S. at 844; Brower, 489 U.S. at 596-597 . Such case law clearly puts a reasonable officer on notice of their Constitutional duty, whether under the Fourth or Fourteenth Amendments, to not use unreasonably, or recklessly unconscionable, excessive force when

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chasing and apprehending a pedestrian suspect in their police cruiser. b. Case law regarding the use of excessive force, and deadly force, is

clearly established and puts a reasonable officer on notice of the Constitutional rights of a pedestrian suspect in a car-to-pedestrian chase. Clearly established law exists that a police officer must not use deadly or excessive force in the apprehension of an unarmed fleeing misdemeanant who is not a an imminent threat to the officer or to a third party or a threat at all, and who has attempted to surrender. Graham v. Connor, 490 U.S. 386, 396 (1989); Tennessee v. Garner, 471 U.S. 1, 11 (1985). A citizen has the right to be free from unreasonable force when being arrested or detained by a law enforcement officer. Street v. Parham, 929 F.2d 537, 540 (10th Cir. 1991); Zuchel v. Spinharney, 890 F.2d 273, 274 (10th Cir. 1989)(citing Graham v. Connor, 490 U.S. 386 (1989)). B. The City failed to promulgate a policy, procedure or usage, regarding car-on-

pedestrian chases with deliberate indifference to Trujillo's Constitutional rights. The City was also culpable under § 1983. Monell v. The Dept. Of Social Services, 436 U.S. 658 (1978). Plaintiff has shown genuine issues of fact regarding the third and fourth elements of a municipal claims, as set forth by Defendants. Regarding the third, the City failed to promulgate and implement a policy or procedure regarding the pursuit of pedestrian suspects by officers in automobiles. Although the City has clear policies regarding car-to-car pursuits, the City makes no distinction between a high-speed chases and chasing pedestrians with a motor vehicle. Ex. 3, 40:5-25; 41:1-10; 47:24-25; 48:1-11; 49:19-23; 50; Ex. 5, 120:23-25; 121:1-15; 123; 124:1-20. Chief Whitman was deliberately indifferent to the need for an express policy and training, stating that he doesn't even know what training concomitant with such a policy would

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entail. Ex. 3, 42:7-10. Regarding the fourth element, as discussed further below, there was a direct causal link between the failure to develop a specific policy on car-to-pedestrian pursuits and Trujillo's injuries. The de fact policy directly caused Officer Hise's comfort with using his police cruiser to intentionally apprehend Trujillo or to recklessly drive over Trujillo in a conscience shocking matter. City of Canton v. Harris, 489 U.S. 378, 390 (1989). C. Chief Whitman, in his official capacity and responsibility to implement Denver

Police Department policies and procedures, exhibited deliberate indifference to Trujillo's Constitutional rights by failing to train officers on car-to-pedestrian chases. A failure to train cause of action under § 1983 initially requires proof that training was in fact inadequate, and then the four elements must be satisfied. Brown v. Gray, 227 F.3d 1278, 1286(10th Cir. 2000)(Officer training program intended to implement always-on-duty policy that made no distinctions between off-shift and on-shift scenarios was a unconstitutional failure to train). The first element, requiring an antecedent Constitutional claim, is contested and addressed above. Id. at 1286. The second element, "usual and recurring situation", is not challenged by Defendants. Id. The third and fourth elements, "deliberate indifference" and "direct causal link" are discussed below along with the adequacy of the training program remains. In Brown, the off-shift officers suddenly found themselves on-duty without training for the new situations that they would encounter. Brown, 227 F.3d at 1287. Here, Officer Hise had been on patrol for thirty-five years and was still never trained specifically on car-to-pedestrian chases which were "typical." Ex. 3, 49:19-23. The police department had developed other training focused on driving skills generally or on car-to-car pursuits. But the department simply omitted training on car-to-pedestrian pursuits, even as part of the other training courses.

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As discussed above, Chief Whitman knew that the current training was inadequate. Ex. 3, 26:3-9; 42:7-10 ("As far as a specific `car chasing a person training,' I don't believe there is any, and I really don't know what you would put in that other than your typical `how to drive the car and handle-it' type."); 47:24-25; 48:1-11. Chief Whitman was deliberately indifferent to the obvious risk of harm to some future person in the absence of car-to-pedestrian training. Id. 1288. In the absence of adequate training, officers were forced to rely on their car-to-car (PIT) training, drivers training in general (Performance Driving), and general use of force training. Yet none of these addressed the substantial inherent risks due to the radical disparity when a police cruiser chases a pedestrian suspect. Ignoring the inevitability of a car-to-pedestrian chase and the risks to pedestrian suspects, and failing to implement a specific policy regulating the use of force in such contexts were direct causes of Trujillo's injuries. D. Officer Hise is liable under Trujillo's state law claims. 1. Officer Hise is not immune under the Government Immunity Act.

The Colorado Government Immunity Act (GIA), C.R.S. 24-10-101, et seq., established governmental immunity for public officials, and then waives immunity in certain areas. C.R.S. 2410-106 and 118. Immunity is waived for public officials, inter alia, for the "operation of a motor vehicle. . . except emergency vehicles operating within the provisions of section 43-4-108(2) and (3), C.R.S." C.R.S. 24-10-106(1)(a). With respect to a public official, government immunity "from liability in any claim for injury..." is inapplicable when "the act or omission causing such injury was willful and wanton." C.R.S. 24-10-118(2)(a). Although Officer Hise is a public official, he does not have immunity for Trujillo's state claims. Officer Hise's alleged intentional torts and negligence were done in a willful and wanton

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manner, and are outside the scope of immunity. Plaintiff has provided genuine issues of fact regarding whether Hise was driving willfully and wantonly and without due regard, or with reckless disregard, for Trujillo's safety. Further, assuming Officer Hise's conduct is not intentional or willful and wanton, Trujillo's injuries arose out of the operation of Officer Hise's police cruiser, and immunity is waived. The exemptions to Colorado traffic law provided under the emergency vehicle exception are inapplicable under these circumstances. C.R.S. 42-4-108(3) and (4). Officer Hise's audible signals were not used and his visual signals were deactivated early in the incident. Therefore, Plaintiff's state law claims, including the punitive claims recognized by Defendants, should not be dismissed based on governmental immunity. 2. Officer Hise cannot support a defense of justification to Plaintiff's state law

intentional tort claims. As discussed above regarding the Fourth Amendment objective reasonableness analysis, there is a genuine issue of fact whether Officer Hise's intentional use of force can be justified if all the inferences are drawn in Trujillo's favor regarding his petty property crime, the lack threat to any person, and his attempt to surrender. 3. Officer Hise intended to cause a harmful contact or the apprehension of a

harmful contact. As discussed above regarding the violation of Trujillo's Fourth Amendment right to be free from an unreasonable seizure, there is a genuine issue of fact whether Officer Hise's seizure was intentional. A jury could reasonably infer the intent requisite for a battery or assault in when Officer Hise 1) ignored Trujillo's effort to surrender, 2) chased Trujillo on the driveway, and 3) hit and drove over Trujillo with his police cruiser.

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4.

Officer Hise's conduct was outrageous and was intended to cause Trujillo

severe emotional distress. As discussed above with respect to the violation of Trujillo's Substantive Due Process Rights under the Fourteenth Amendment, Officer Hise's conduct was outrageous, and whether Officer Hise was substantially certain that his conduct would cause all the consequent mental trauma to Trujillo is a genuine issue of fact for the jury. 5. Officer Hise's operation of his police cruiser was negligent.

Assuming that there is no Constitutional Violation, and no intentional tort, drawing all inferences in Plaintiff's favor, there is sufficient evidence, e.g., Officer Hise's driving into the curb after Trujillo attempted to surrender and hitting an object before driving over Trujillo, for a jury to reasonably find that Officer Hise's negligent operation of his police cruiser was the proximate cause of Trujillo's massive injuries. V. CONCLUSION Given the genuine facts in dispute identified above, Defendants have failed to show beyond a reasonable doubt that they are entitled to summary judgment on the above claims. WHEREFORE, for the reasons set forth herein, Plaintiff respectfully requests that this Court 1) deny Defendants' Motion for Summary Judgment, or 2) grant a hearing. Respectfully submitted this 20TH day of October, 2005. s/ Lonn M. Heymann Lonn M. Heymann WALTER L. GERASH LAW FIRM, P.C 1439 Court Place, Denver CO 80202 PH: 303-825-5400; FAX: 303-623-2101 E-Mail: [email protected] Attorney for Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on October 20, 2005, I presented the foregoing PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT to the Clerk of the Court for filing and uploading to the CM/ECF system which will send notification of such filing to the following e-mail addresses: Luis A. Corchado, Esq. Christopher M.A. Lujan, Esq. Assistant City Attorney Civil Litigation Division 201 West Colfax Ave., Dept. 1108 Denver, Colorado 80202-5332 Attorneys for Defendants David J. Bruno, Esq. Jeffrey John Clayton, Esq. Bruno Bruno & Colin, PC 1560 Broadway, Ste 1099 Denver, Colorado 80202 Co-counsel for Defendant Hise

s/ Lonn M. Heymann

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