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

The 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 action is a police misconduct action pursuant to 42 U.S.C. §§ 1983 and 1988 arising out of Denver Police Department Officer Gary Hise's ("Officer Hise") vehicular chase of a 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 and supervise Officer Hise. Reference to Plaintiff's exhibits will be by "Ex.", preceded by a brief 1

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identification of the deposition, affidavit, video tape, or transcription, and followed by the page and line number, or minute and second on a video tape. II. STANDARD OF REVIEW The Defendants have moved for summary judgment pursuant to F.R.C.P. 56 as to all claims against them. 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). Under Rule 56(c), the moving party bears the burden of presenting evidence to show the absence of a genuine issue of material facts. Trainor v. Appollo Metal Specialities, Inc., 318 F.3d 976, 979 (10th Cir. 2002). In the Tenth Circuit, "[t]he moving party carries the burden of showing beyond a reasonable doubt that it is entitled to summary judgment." Id. (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. At the summary judgment stage, 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 factfinder, to sustain her claim." Id. III. PLAINTIFF'S STATEMENT OF DISPUTED AND OTHER MATERIAL FACTS As noted above, it is settled law that "[a]ll inferences arising from the record must be drawn and indulged in favor of the party opposing summary judgment." Stinnett, 337 F.3d at 1216. Defendants' Statement of Undisputed Facts fails to do this. Instead, in key areas it sets forth self-serving factual allegations with references consistently stated and drawn in favor of the

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Defendants. A. Officer Hise intended to apprehend Trujillo, not to monitor. 1. Contrary to Defendants' Statement of Undisputed Facts, rather than attempting to

"monitor" Trujillo, Officer Hise intended to apprehend Trujillo using his police cruiser. Chief Whitman Depo., Ex. 3, 30:16-22. Sandoval Depo., Ex. 4, 24:16-25; 25:1-6 (for reference, please see Sandoval Depo., Ex. 4, 15:15:-24; 25:20-25; 26:1-14; 28:21-23); Hise Dep., Ex. , 63:7-18; Schultz Depo., Ex. 6, 158:9. B. Before the Chase. 2. Trujillo suffers from schizophrenia and, at the time of the incident, found it difficult

to remain on his medications intended to treat his schizophrenia. Trujillo Depo, Ex. 7, 6:16-22; 152:12-16. 3. With some beef jerky wrapped in a shirt, Trujillo remembers trying to leave the

Shell station on Evans Avenue, west of Zuni Street in Denver, and when the store clerk locked the plate glass door Trujillo kicked his way out. 4. Trujillo Depo., Ex. 7, 176:9-11; 178:10-12.

After leaving the convenience store, Trujillo went west on Evans Avenue and then Trujillo Depo., Ex. 7, 179:11-14.

northbound on the east side of Zuni Street. 5.

Denver Police Officer Gary Hise was driving the Denver Police Department

marked police cruiser at issue in this case. Hise Depo., Ex. 5, 27:11-21. 6. 49:9-12. 7. Officer Hise had at least 17 or 18 car accidents during his career. Hise Depo., Ex. Officer Hise only saw glass on the outside of the Shell station. Hise Depo., Ex. 5,

5, 30-31; Sandoval Depo., Ex. 4, 37:17-22.

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C.

The Chase. 8. While walking (or possibly running) northbound on the east sidewalk of Zuni

Street, Trujillo turned around and realized that there was a police cruiser behind him with its overhead red-and-blue lights activated. Hise Depo., Ex. 5, 54:14-16; Trujillo Depo., Ex. 7, 40:13-16; 45:20-25; 179:19-25; 180:1-2; 180:13-15. 9. While the police cruiser was going northbound on Zuni Street, its red-and-blue

lights deactivated and then the police cruiser's spotlight illuminated Trujillo. Trujillo Depo., Ex. 7, 179:25; 180:1-4. 10. Trujillo stopped and attempted to surrender by putting his hands up. Trujillo

Depo., Ex. 7, 180:16-19; 181:12-16. 11. Trujillo dropped his shirt containing the beef jerky when he threw up his hands to

surrender. Trujillo Depo., Ex. 7, 181:17-23; 182:7-10; 190:10-13. 12. 15. 13. After Trujillo tried to surrender, Officer Hise's police cruiser kept going and hit Trujillo did not pick up his shirt and the beef jerky. Trujillo Depo., Ex. 7, 190:14-

the curb. Trujillo Depo., Ex. 7, 180:19-20; 182:15-19. 14. When the police cruiser hit the curb it was four or five feet away from Trujillo.

Trujillo Depo., Ex. 7, 183:9-12. 15. 180:20-21. 16. 252:6-25. Officer Hise entered the driveway at a high rate of speed. Smith Depo., Ex. 9, Trujillo turned his back to the police cruiser and ran. Trujillo Depo., Ex. 7,

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17. 60:5-7. 18. ¶6.b. 11. 19. 20.

Officer Hise did not hit anything on the way into the driveway. Hise Depo., Ex. 5,

Officer Hise chased Trujillo eastbound down the driveway. Cera Flores Aff., Ex. 2

There were fences on both sides of the driveway. Hise Depo., Ex. 5, 61:13-15. Somewhere toward the end of the long driveway Trujillo was confronted with

aggressive dogs. Cera Flores Aff., Ex. 2, ¶6.c. 21. The dogs were behind the fence, on the east side, separated from Trujillo and Hise.

Cera Flores Int., Ex. 8, p. 9 ("Because the dogs ran, ran in front and behind, behind the young man, but inside the fence"). 22. 23. 24. 63:1-3. 25. While stopped, Officer Hise had an exaggerated sense of the threat to him. Hise Trujillo was trapped. Cera Flores Int., Ex. 8, p.4, p.6. Hise stopped his vehicle and sat in it while Trujillo was struggling with the dog. Officer Hise waited in his police cruiser for 10 or 12 seconds. Hise Depo., Ex. 5,

Depo., Ex. 5, 63:19-25; 64:1-10. 26. D. Trujillo ran back west on the driveway. Cera Flores Aff., Ex. 2, ¶6.d.

The Seizure. 27. Officer Hise did not see a knife or any indication that Trujillo had a weapon. Hise

Depo., Ex. 5, 23:7-25; 24:1-10; 52: 1-5. 28. Officer Hise was not aware of a third person's presence during his effort to

apprehend Trujillo. Hise Depo., Ex. 5, 64:11-24.

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29.

While looking over his right shoulder, Officer Hise saw Trujillo pass his police

cruiser on the passenger side. Hise Depo., Ex. 5, 67:17-23. 30. While looking over his right shoulder, Officer Hise did not have an obstructed

view. Hise Depo., Ex. 5, 68:6-11. 31. Trujillo put the police cruiser in reverse and started looking over his left shoulder.

Hise Depo., Ex. 5, 68:19-25. 32. While backing up, Officer Hise did not consider Trujillo to be an imminent threat

to himself or anyone else. Hise Depo., Ex. 5, 76:20-25; 77:1-2. 33. 5, 69:6-14. 34. Trujillo remained on the driveway the entire time as he ran west. Cera Flores Aff., Trujillo recognizes that he would have lost some view of Trujillo. Hise Depo., Ex.

Ex. 2, ¶6.d; Cera Flores Int., Ex. 8, p.10 ("And I just looked when the dogs were going around here and then they came back over here and later they went back to where the young man was running. Then the young man wanted to jump over in front of the other house and he couldn't because it is high and he wanted to jump where the dogs are, but the dogs didn't let him"). 35. Officer Hise claims that after Trujillo passed the passenger side of his vehicle Hise

could not see Trujillo, but he knew that he was close. Hise Depo., Ex. 5, 69-70. 36. Officer Hise testified that he decided Trujillo was not behind him merely because

he says that he did not see him. Hise Depo., Ex. 5, 73:9-19. 37. Officer Hise testified that he disregarded the possibility that he might hit Trujillo as

he backed up his vehicle. Hise Depo., Ex. 5, 79:11-18. 38. Officer Hise backed out of the driveway at a rapid acceleration rate. Mr. Smith

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bases his opinion on a mark left after Officer Hise left the driveway. Smith Depo., Ex. 9, 255:1012; 257:13-20. 39. Hise was driving fast. Cera Flores Int., Ex. 8, p.5, p.19 ("Fifteen, twenty . .. I

don't know, I mean like ... No, it did come out hard, because the young man returned quickly. I mean when he couldn't find an exit he returned quickly and um, the patrol car came out hard..."); Trujillo Depo., Ex. 7, 70:25; 71:1-25. 40. Trujillo saw Officer Hise coming and turned southwest. Trujillo Depo., Ex. 7,

72:1-18;185:7; 187:22-25; 188:1. 41. 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. Cera Flores Aff., Ex. 2, ¶6.f.; Cera Flores Int., Ex. 8, p.4., p.6 42. 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. Cera Flores Aff., Ex. 2, ¶6.e.; Cera Flores Int., Ex. 8, p.6 ("the patrol car ran into something and the young man moved over right on the corner, moved over here"), p.7 (refer to video tape to see blue and black lines representing Trujillo and the police cruiser, respectively: "The patrol car goes here. The young man was, wanted to pass around here to take this way over here, to run towards..."). 43. Officer Hise hit Trujillo with the rear of his cruiser propelling Trujillo from the

sidewalk on to the street. Cera Flores Aff., Ex. 2, ¶6.e.; Cera Flores Int., Ex. 8, p.4; Trujillo Depo., Ex. 7, 185:3-16; 185:13-20. 44. Officer Hise's police cruiser hit Trujillo at the small of his back while Trujillo was

standing up and facing west. Trujillo Depo., Ex. 7, 187:1-7; 187:22-25; 188:1; Cera Flores Int.,

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Ex. 8, p.4 45. When Trujillo was hit by the police cruiser he flung forward with his hands out.

Trujillo Depo., Ex. 7, 187:7-8; Cera Flores Int., Ex. 8, p4-5. 46. When at the far western end of the driveway, near the sidewalk, Officer Hise felt

an instability in his right rear tire. Hise Depo., Ex. 5, 80:21-25; 81:1-4. 47. 48. Officer Hise testified that the drag was constant. Hise Depo., Ex. 5, 82:9. Officer Hise testified that "it was the farthest thing from my mind" that the

instability could have been caused by Trujillo being under his car, although he says that he did not know where Trujillo was. Hise Depo., Ex. 5, 79:17-23. 49. While driving in reverse, at the end of the driveway, near the road, Officer Hise

also felt a bump. Hise Depo., Ex. 5, 104:1-17. 50. Earlier, when driving eastbound on the driveway, Officer Hise did not notice any

obstructions on the driveway. Hise Depo., Ex. 5, 108:20-25; 109:1-9. 51. As Officer Hise continued backing and turning his police cruiser southward into

the street, he backed over Trujillo with the rear right wheel. Trujillo Depo., Ex. 7, 183:22-25; 184:1-7; 185:8-10; Cera Flores Int., Ex. 8, p.12 ("the car like came back again...). 52. Hise changed course, driving northbound, and pinned Trujillo to the ground with

the right rear tire of the police cruiser. Cera Flores Int., Ex. 8, p.12 (...and then it went forward again and just then is when the young man remained under the tire"); Trujillo Depo., Ex. 7, 66:39; 184:8. 53. Ex. 10, 23. Trujillo was found underneath the car in front of the rear right tire. Woosley Dep.,

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54.

During his apprehension, Trujillo suffered severe, life-threatening injuries. Smith

Depo., Ex. 9, 91:22-25 (referring to a flail chest); 92:1-9; 107:14-25 (referring to injuries to the abdomen and pelvis); 108:1-7; 109-112; 191:9-23 (referring to an injury to the psoas muscle and a C2 fracture); 218:20-25; 218-219. D. Policy Regarding Operation of a Police Cruiser 55. Chief Whitman testified that he is not aware of any policy or procedure of the

Denver Police Department regarding the use of a vehicle in the pursuit of a pedestrian suspect. Whitman Depo., Ex. 3, 40:5-17. E. Use of Force Policy 56. Officer Hise believed that there was a Denver Police Department Policy or

Procedure requiring that a police officer not use their vehicle to stop pedestrians. Hise Depo., Ex. 5, 121:21-25; 122:1-4. [No qualified immunity based on lack of awareness.] F. Training 57. Chief Whitman is responsible for implementing the policies and procedures of the

Denver Police Department. Whitman Depo., Ex. 3, 26:3-9. 58. Two types of driving-related training are provided directly by the Denver Police

Deparment for officers like Officer Hise: Performance Driving (for "seasoned" officers) and Pursuit Intervention Technique Training (PIT). Chagolla (30(b)(6) Designee for the City and County of Denver) Depo., Ex. 11, 8-11; 22:15-18. 59. PIT training does not address pursuits of pedestrian suspects. Chagolla (30(b)(6)

Designee for the City and County of Denver) Depo., Ex. 11, 20:20-25; 21:5-8. 60. Officer Hise participated in the Performance Driving and PIT training. Chagolla

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(30(b)(6) Designee for the City and County of Denver) Depo., Ex. 11, 8-11. 61. Performance Driving brought Officer Hise up to date on the current training of

Denver Police Officers driving vehicles. Chagolla (30(b)(6) Designee for the City and County of Denver) Depo., Ex. 11, 19:14-18. 62. Chief Whitman testified that Denver Police Department training does not make the

distinction between the use of a police cruiser in the pursuit of another vehicle versus pursuit of a pedestrian suspect. Whitman Depo., Ex. 3, 40:18-25; 41:1-10. 63. Corporal Chagolla, the 30(b)(6) designee for the City and County of Denver, and

the main driving instructor at the Denver Police Academy, testified that the Denver Police Officers are never trained on how to use a motor vehicle in the pursuit of a pedestrian suspect, whether in a driver training or use of force training context. 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. 64. Chief Whitman 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. Whitman Depo., Ex. 3, 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.") 65. 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." Whitman Depo., Ex. 3, 47:24-25; 48:1-11. 66. 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.

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Whitman Depo., Ex. 3, 49:19-23. 67. Officer Hise's in service training on vehicle pursuits did not include training on

pursuits of pedestrian suspects. Hise Depo., Ex. 5, 116:17-20. 68. Officer Hise was trained at a "roll-call-type training" to never use a car to

apprehend a fleeing pedestrian. Hise Depo., Ex. 5, 120:23-25; 121:1-15; 123; 124:1-20. 69. It appears that Chief Whitman was aware of the circumstances that precipitated the

"roll-call-type training" where Officer Hise was instructed to never use a car to apprehend a fleeing suspect. Whitman Depo., Ex. 3, 50. 70. Officer Hise was trained by the Denver Police Department to use the Smith system

of driving which dictates that an officer must always back up looking over their right shoulder. Chagolla (30(b)(6) Designee for the City and County of Denver) Depo., Ex. 11, 12:14-25; 13:115; 14:3-6. 71. Officer Hise testified that he could not recollect the training on driving backward.

Hise Depo., Ex. 5, 116:21-23. 72. Officer Hise should have been aware, based on his training by the Denver Police

Department, that while driving a vehicle during emergency situations the increase in adrenaline causes a loss of fine motor skills. Chagolla (30(b)(6) Designee for the City and County of Denver) Depo., Ex. 11, 16:7-25; 17 ("So what we train officers to do is to ward off the effects of tunnel vision. We have to teach our officers and people to look - now they have to turn constantly turn their head and look so they can see everything around them."); 18:1-2 . 73. As part of the training to show the effect of adrenaline during car chases, even on a

driving course officers "start hitting cones." Chagolla (30(b)(6) Designee for the City and County

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of Denver) Depo., Ex. 11, 19-24. 74. Officer Hise testified that he could not recollect attending a course in the academy

or for in-service training that addressed the use of an automobile in the pursuit of a pedestrian subject. Hise Depo., Ex. 5, 120:23-25; 121:1-1-2. 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 Constitutional Limitations on the Use of Force. A § 1983 claim of excessive force 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). 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. 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 own reckless or deliberate conduct during the 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.

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Chamberlain, 24 F.3d 1251, 1256 & n.7 (10th Cir. 1994) ("Obviously, events immediately connected with the actual seizure are taken into account in determining whether the seizure is reasonable.) The police officer's use of deadly force is justified under the Fourth Amendment only if a reasonable officer in the defendant's position would have had probable cause to believe that there was a threat of serious physical harm to themselves or others. 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). Tennessee v. Garner - Here, the police cruiser was used as weapon, as a means of deadly force. 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. Firstly, Defendants' argument regarding this threshold issue is incoherent. Defendants argue, on the one hand, that Officer Hise engaged in a high speed chase, placing this case 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). But, on the other hand, Defendants argue that Officer Hise was carefully monitoring Trujillo at a low speed. The evidence, in the light most favorable to Trujillo, raises a

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genuine issue of material fact whether Hise intended to apprehend Trujillo by using his police cruiser. a. Sacramento is inapplicable under the circumstances.

Defendants' brief spells out in detail the factual distinctions between Sacramento and this case. Sacramento involved an extremely high speed car-to-motorcycle chase on the open roads involving harrowing speeds and close distances between the police vehicle and the fleeing motorcyclists. The defense argues that Officer Hise followed Trujillo, a pedestrian suspect, over a relatively short distance at slow speeds. The defense itself argues that Officer Hise, in his police cruiser, was merely monitoring Trujillo. Hise testifies that he was not using his overhead emergency lights or his siren as would be required under CO law in the case of an emergency pursuit. The defenses own characterization of this case takes it out of the Sacramento analysis. In Sacramento, the United States Supreme Court holds that a constitutional claim for deprivation of substantive due process rights will be evaluated under the shocks the conscience standard, rather than reckless disregard, deliberate indifference, or gross negligence. This standard is applicable to an excessive force claim only if there was no seizure. Under the circumstances of many high speed chases, including the one at issue in Sacramento, the Court determined that there was no seizure. In order for the police officer to have seized the suspect during the 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 would take place where a `pursuing police car sought to stop the suspect only by the show of authority represented by flashing lights and continuing pursuit,' but accidentally stopped the

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suspect by crashing into him." Sacramento v. Lewis, 523 U.S. 833, 844. (1998)(quoting Brower). Here, Officer Hise was not engaged in the typical high speed pursuit contemplated in Sacramento or Brower. Rather, Officer Hise pursued Trujillo, a pedestrian suspect, with his police cruiser and tracked him down after the Trujillo tried to surrender, and after Officer Hise had another clear opportunity to apprehend Trujillo by foot. Rather than accepting Trujillo's surrender upon the show of authority, and rather than exiting his police cruiser to apprehend Trujillo on foot, Hise chose to apprehend Trujillo by using his vehicle. Trujillo was apprehended after Officer Hise tracked him down in revers on a narrow driveway. Trujillo's freedom of movement was limited, to say the least, by the means deliberately chosen and brutally applied by Officer Hise. OTHER Seizure cases. 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 at all times he intended to apprehend Trujillo. Chief Whitman Depo., Ex. 3, 30:16-22. Sandoval Depo., Ex. 4, 24:16-25; 25:1-6. It is undisputed that Officer Hise deliberately used his police vehicle as a means to chase and eventually detain Trujillo. Cera Flores Aff., Ex. 2, ¶6.a. and b; Schultz Depo., Ex. 6, 158:9; Sandoval Depo. Ex. 4, 25:20-25; 26:1-14. Given the facts on the record, there is also a genuine issue of fact whether Hise intended to use the police cruiser itself to stop Trujillo. Therefore, there is a genuine issue of fact whether Trujillo intended to use his police cruiser to apprehend Trujillo in a manner amounting to a seizure under the Fourth Amendment. Although probably less contentious, there is also a genuine issue of fact whether Officer Hise unreasonably seized

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Trujillo. Initially, it came to Officer Hise's attention that some sort of alleged crime had been committed at the gas station. Officer Hise saw the broken plate glass door and was directed toward Zuni Street by bystander witnesses. Officer Hise accelerated toward Zuni Street and turned north. Officer Hise saw Trujillo on the east side of Zuni Street, walking north. Trujillo will testify that when he saw the police cruiser driven by Officer Hise coming toward him with its emergency lights activated that Trujillo attempted to surrender. Trujillo will testify that the overhead lights on the cruiser turned off and the spot light was directed at Trujillo. When the car did not stop, and continued directly toward him without slowing, Trujillo turned and ran north. The police cruiser continued to chase Trujillo. Trujillo turned right, east-bound, on to the driveway of 2026 South Zuni Street. Officer Hise followed Trujillo on to the driveway. Trujillo, Cera Flores, and Plaintiff's expert John Smith will testify that Officer Hise drove on to the driveway at a high rate of speed. When Trujillo reached the end of the long driveway he stopped at a fence behind which there was a barking dog. Cera Flores. Officer Hise stopped the police cruiser fifteen (?) or so feet from Trujillo, about 200 feet down the driveway. Trujillo was effectively trapped, with a fences on three sides, a dog barking at him over the fence to the 2026 South Zuni property, and Officer Hise's police cruiser to his west. Officer Hise remained in his vehicle for approximately fifteen seconds. Hise testifies that he stopped the vehicle while Trujillo was being attacked by a dog. That provided an opportunity, a period of time, for Officer Hise to apprehend Mr. Trujillo. Officer Hise states in his video-taped interview that his goal was to apprehend Trujillo (not to "monitor" him as counsel for the defendants claim). Yet, Officer Hise remained in his police cruiser. Officer

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Officer Hise chose not to get out of his car to apprehend Trujillo at that point. Rather, he waited for Trujillo to move. Trujillo then doubled back and ran west-bound on the driveway. Officer Hise watched Trujillo run past his passenger-side window. Officer Hise then went in reverse and accelerated his police cruiser rapidly and, eventually, was driving fast. Cera Flores will testify that when Officer Hise's police cruiser was toward the west end of the driveway, the entrance, that she heard a crash and believed that the police cruiser had hit a post or the trash can at the end of the driveway. In fact, a large trash can was found on its side, on the north side of the driveway, toward the entrance. She will testify that the police cruiser, after hitting the trash can, veered south and hit Trujillo. Cera Flores will also testify that Trujillo was on the south side of the driveway, at the sidewalk, when he was hit by the back right rear of the police cruiser. Cera Flores will testify that Trujillo was hit on his back and he fell into the street. Trujillo will testify that he remembers being on the street, spread out like Superman. He looked back over his shoulder and saw the police cruiser continuing to drive toward him. Cera Flores will testify that Hise's police cruiser continued to back up while turning south and ran over Trujillo. Cera Flores observed the car jump up. Then Hise's police cruiser changed directions dragging Trujillo forward, north-bound, and driving up on him again. Officer Hise then brought his police cruiser to a halt. Trujillo was found pinned under the front side of the rear right tire. There is no evidence that Trujillo was prosecuted for a crime. To the extent that there were policies, procedures or usages that provided guidance to Officer Hise under these circumstances, Officer Hise ignored them. Officer Hise ignored two procedures of the Denver Police Department while attempting to apprehend Trujillo with his

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police cruiser. 1) 121:1-15. 2) The Smith system of driving - always back up looking over your right shoulder. Never use a car to apprehend a fleeing pedestrian. Hise Depo., Ex. 5, 120:23-25;

Chagolla (30(b)(6) Designee for the City and County of Denver) Depo., Ex. 11, 12:14-25; 13:115; 14:3-6. Under the circumstances, Hise conduct is aggravated because, based on his training, he knew that when driving a vehicle under emergency circumstances, an officer will lose fine motor skills and will "start hitting cones." Chagolla (30(b)(6) Designee for the City and County of Denver) Depo., Ex. 11, 16:7-25; 17; 18:1-2; 19-24. 2. Officer Hise deprived Trujillo of his Fourth Amendment right to be free from

an unreasonable seizure. Officer Hise violated Trujillo's right to be free from the use of excessive force during his apprehension in two ways. First, the act of stopping and detaining Trujillo by using his police cruiser was an excessive response to the situation that Officer Hise encountered when attempting to apprehend Trujillo, a pedestrian suspect of a minor property crime. There is sufficient circumstantial evidence for a reasonable jury to find that Officer Hise intended to use his police cruiser itself to stop and seize Trujillo. A reasonable jury could infer that Officer Hise tracked down Trujillo and intentionally ran him over. Viewing the facts as a whole, including significant circumstantial evidence, in the light most favorable to the plaintiff, there is a genuine issue of material fact whether Officer Hise seized Trujillo, subjecting this case to Fourth Amendment objective reasonableness analysis under Graham v. Connor and Tennessee v. Garner, Second, Officer Hise acted recklessly and unreasonably in the events surrounding the

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seizure and his conduct immediately led to hitting Trujillo with his police cruiser and then running over Trujillo causing nearly deadly injuries. 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. Trujillo's Fourteenth Amendment substantive due process rights were violated by Officer Hise's conduct. Further, Fourteenth Amendment substantive and procedural due process violations are stated through the conduct of Defendants City and Chief Whitman described which was with reckless intent which shocks the conscience. "[A]n act is reckless when it reflects a wanton or obdurate disregard or complete indifference to risk." Christensen v. City of Tursa, 332 F.3d 1270, 1279 (10th Cir. 2003); Sutton v. Utah State School for Deaf and Blind, 173 F.3d 1226, 1238 (10th Cir. 1999). "Reckless intent is established if the state actor was aware of a known or obvious risk that was so great that it was highly probable that serious harm would follow and he or she proceeded in conscious and unreasonable disregard of the consequences." Id. 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. Officer Hise also testifies that as he approached the sidewalk from the east, he felt a drag on his car. He says that he thought he may have had a flat tire, but did not consider the possibility that he had hit the pedestrian suspect, Trujillo. Hise testifies that when entering the driveway he had felt no obstructions, and he had no reason to believe that there would be a new obstruction on the way out that could cause the drag. There is a genuine issue of material fact whether Officer Hise experienced the type of impact that would cause a reasonable person, under these circumstances,

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to be aware that they had hit an object. Hise still drove back and then forward. 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. That amounts to reckless intent because everything Officer Hise did was done deliberately and intentionally 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, if Officer Hise ran into Trujillo there would have been serious harm. In spite of this, Officer Hise testifies that he consciously disregards any risk to Trujillo. Any of the above reasonable interpretations by a jury would amount to reckless intent. The disparity of circumstances in this case are central. Officer Hise was in a police cruiser. Trujillo was a pedestrian. Recognizing such, Trujillo tried to surrender. Hise ignored Trujillo's 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 pinning him to the street. Further, Trujillo at no time posed a threat to Hise or another person. Trujillo was a fleeing misdemeanant who took some beef jerky from a convenience store when he was off his meds. Based on the knowledge that someone had broken a plate glass window after taking

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something from a convenience store, Officer Hise hunted Trujillo down and mauled him with his police cruiser. The force used was deadly, by definition. Whether Officer Hise, a sworn peace officer, was malicious, lazy, outrageously reckless, or just indifferent to the safety of Trujillo, his choices shock the conscience. 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. 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 chase and chasing pedestrians with a motor vehicle. There was a direct causal link between this failure and Trujillo's injuries. 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. Given the absence of a policy guiding officers on how to pursue pedestrian suspects while using a police cruiser, Chief Whitman implements no training on this subject. Officers are forced to rely on their car-to-car training, and their drivers training in general, as well as their more general training on the use of force. Even if the City has promulgated sufficient policies and procedures, Chief Whitman's failed to train police officers on the use of force in the context of the operation of a police cruiser while chasing a pedestrian suspect. Yet, car-to-pedestrian pursuits are usual and recurring situations according to Corporal Chagolla. Further, given the earlier incident that precipitated the

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roll-call training of which Hise and Whitman were aware, Chief Whitman was deliberately indifferent to the obvious risk of harm to some future person in the absence of car-to-pedestrian training. Brown v. Gray, 227 F.3d 1278, 1288-(10th Cir. 2000)(Officer training program that made no distinctions between off-duty and on-duty scenarios was a unconstitutional failure to train). In either case, there was a direct causal link between Chief Whitman's failure to train and Trujillo's injuries. D. Clearly established law exists that an police officer must not use excessive force in

the apprehension of an unarmed fleeing misdemeanant who is not a threat to the officer or to a third party, and who has attempted to surrender. 1. High speed car-to-car or car-to-motorcycle cases provide a line of 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 cannot use excessive force in the pursuit of a suspect while in a car-to-car high speed chase. Brower, Sacramento, Williams v. Denver. Such case law clearly puts a reasonable officer on notice of their Constitutional duties, whether under the Fourth or Fourteenth Amendments, when chasing a pedestrian suspect in their police cruiser. 2. Case law regarding the use of excessive, disproportionate force is a line of

clearly established law that puts an officer on notice of the Constitutional rights of a pedestrian suspect in a car-to-pedestrian chase. "Whenever 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

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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 sue deadly force, and, if feasible, some warning has been given. Id. at 11. E. Officer Hise is liable under Trujillo's state law claims. 1. Officer Hise cannot support a defense of justification to Plaintiff's state law

intentional tort claims. Trujillo stole some beef jerky from a Shell station on Evans Avenue in Denver, Colorado, and when the store clerk locked the plate glass door Trujillo kicked his way out. Whether these facts could provide the basis for a criminally culpable mental state is a question for dispute. Objectively, there is no evidentiary basis to a claim that Trujillo was a fleeing felon. Most importantly, there is no evidentiary basis for Officer Hise to claims that he felt an imminent threat of harm to himself or others. Therefore, whether Officer Hise will have a justification defense to state court intentional tort claims for his use of force is a disputed question of fact, if not conclusive in Plaintiff's favor. 2. Officer Hise intended to cause a harmful contact or the apprehension of a

harmful contact; and Officer Hise's conduct was outrageous and was intended to cause Trujillo severe emotional distress. Trujillo claims that Officer Trujillo also claims that Officer Hise is liable for the following

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intentional torts under state law: battery, assault and outrageous conduct. 3. Officer Hise's operation of his police cruiser was patently negligent.

At the very least, Trujillo claims that Officer Hise's grossly negligent operation of his police cruiser was the proximate cause of Trujillo's massive injuries. Although Officer Hise is a public official, he does not have immunity for Trujillo's state claims. The intentional torts, and the negligent acts, were done in an intentional and wilful and wanton manner. Wilful and wanton acts are outside of any government immunity granted to a public official under the Colorado Government Immunity Act. Further, even if Officer Hise's conduct was not found to be intentional or wilful and wanton, the operation of a motor vehicle is waived as an area of immunity under the Colorado Government Immunity Act. The Emergency Vehicle exception, under Colorado statutory law, is inapplicable under these circumstances. V. CONCLUSION For the reasons set forth herein, the plaintiff respectfully requests that this Court 1) deny the defendants motion for summary judgment, 2) grant Plaintiff's counsel additional time to brief this matter, and/or 2) grant a hearing regarding the motion for summary judgment. Respectfully submitted this 17TH 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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I hereby certify that on October 17, 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/ Marjorie Reinhardt

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