ESTATE OF JAIME CEBALLOS; QUIANNA VIGIL; NAVEYAH CEBALLOS, through next friend; JAYDEN CEBALLOS, through next friend, Plaintiffs - Appellees,
WILLIAM HUSK, individually; CITY OF THORNTON, Defendants - Appellants.
from the United States District Court for the District of
Colorado (D.C. No. 1:15-CV-01783-RPM)
Courtney B. Kramer (Eric M. Ziporin with her on briefs)
Senter Goldfarb & Rice, LLC, Denver, Colorado, for
T. Grossman (Anna Holland Edwards with her on the brief)
Holland, Holland Edwards & Grossman, P.C., Denver,
Colorado, for Plaintiffs-Appellees.
BACHARACH, EBEL, and MORITZ, Circuit Judges.
Ceballos's wife, Quianna Vigil, called police on an
August evening in 2013 to report that her husband was in
their driveway with a baseball bat "acting crazy,"
and that he was drunk and probably on drugs. Vigil further
reported that she was afraid and had left the house with
their seventeen-month-old; Vigil wanted police to remove
Ceballos so she could return home to put the child to bed.
Defendant William Husk and several other Thornton police
officers responded. Within a minute of their arrival, Officer
Husk shot Ceballos to death in the street in front of his
home. Ceballos's estate (also referenced herein as
"Ceballos") and his surviving wife and children
initiated this litigation against Officer Husk and the City
of Thornton. Relevant here, Plaintiffs assert three claims:
1) a 42 U.S.C. § 1983 claim against Officer Husk,
alleging he used excessive force in violation of the Fourth
Amendment; 2) a § 1983 claim alleging the City failed to
train Officer Husk adequately in how to handle situations
involving individuals who are emotionally distraught or who
have a diminished ability to reason; and 3) a state-law
wrongful death tort claim against Husk. In this interlocutory
appeal, Defendants challenge the district court's
decision to deny them summary judgment on each of these three
claims. We AFFIRM the district court's decision denying
Officer Husk summary judgment on the § 1983
excessive-force claim. We DISMISS for lack of jurisdiction
both the City's appeal from the denial of summary
judgment on the § 1983 failure-to-train claim as well as
Husk's appeal involving the state-law wrongful death
district court indicated throughout its decision, there
remain numerous disputed issues of material fact underlying
the claims at issue in this case. But in this interlocutory
appeal from the denial of summary judgment premised in part
on Officer Husk's assertion of qualified immunity, we
"take as given the district court's assessment of
what facts a reasonable jury could accept at trial," in
light of the summary-judgment record. Walton v.
Powell, 821 F.3d 1204, 1208 (10th Cir. 2016) (applying
Johnson v. Jones, 515 U.S. 304, 317 (1995)).
Further, we "view the facts in the light most favorable
to the non-moving part[ies] and resolve all factual disputes
and reasonable inferences in [their] favor." Knopf
v. Williams, 884 F.3d 939, 946 (10th Cir. 2018)
(internal quotation marks omitted).
wife called 911 at 7:30 p.m. on August 30, 2013, reporting,
among other things, that her husband was in the driveway of
their home "with two [baseball] bats and acting crazy;
that she was afraid and had her 17-month old daughter with
her; that Ceballos was drunk and probably on drugs; and that
two of Ceballos' friends were with him." (Aplt. App.
707.) The 911 dispatcher issued a radio call regarding
"a high priority disturbance involving a party armed
with one or more bats, describing it as a 'DK [drunk]
unwanted party' and a 'disturbance.'"
(Id.) The dispatcher also indicated that Ceballos
"is known to have knives." (Id. 214.)
"Radio traffic" further reported that Ceballos had
been a "'walkaway' from [a nearby medical
center] the previous night." (Id. 707.)
dispatcher sent officers further information about the
situation over the "Computer-Aided Dispatch (CAD)
system" (id. 707)-including information that
Ceballos had threatened his wife with a knife several
months earlier and that he was not taking his
anti-depression medication. Husk, however, did not look at
arrived on scene at the same time as Officer Ward. Because
the call occurred in his district, Husk took charge. The two
parked near the vehicle in which [Quianna] Vigil had parked
with her daughter, several houses down the street from the
driveway where Ceballos was located. The officers spoke to
Vigil and identified her as the reporting caller, and then
began to walk toward Ceballos. As Officers Ward and Husk
walked toward the residence, two men who had been with
Ceballos, Andrew Castillo and Sergio Martinez, approached and
told officers that Ceballos was not acting right and might be
on drugs. Castillo and Martinez say that the officers refused
to take additional information from them and continued to
advance toward Ceballos. Castillo says he was told to
"shut the fuck up" and "get back."
time, two other officers arrived in separate cars; Commander
Carbone parked near Husk's and Ward's patrol cars,
while Officer Snook parked on the other side of
Ceballos's home and began approaching Ceballos from the
opposite direction as Husk and Ward. Officer Snook then
decided to return to his vehicle to get a beanbag shotgun,
which is non-lethal and can be fired at a greater distance
than a Taser. Snook testified in his deposition
that he recognized Ceballos from the walkaway incident the
night before, and thought from observing him in the driveway
that something in his face "didn't seem right."
When Snook turned [to his patrol car] to get his [beanbag]
shotgun, he did not think that either his own life or the
lives of the other officers were in danger given their
respective distances from Ceballos and that he was armed with
a baseball bat.
waiting for Officer Snook to return with the beanbag gun,
Officers Husk and Ward continued to approach Ceballos. When
they "were approximately 100 yards from the [Ceballos]
residence, they saw Ceballos pacing in the driveway, swinging
a baseball bat, yelling and throwing his arms in the
air." (Id. 708.) There was no one else in the
driveway with Ceballos. "By this time, the officers knew
that [Ceballos's wife] and her daughter were parked down
the street from Ceballos and that Ceballos' two friends
had also left his immediate vicinity." (Id.)
Furthermore, the officers "did not see any neighbors or
other members of the public." (Id.)
Officers Husk and Ward walked in the middle of the street
toward Ceballos to keep a clear line of sight. They both
repeatedly shouted commands for Ceballos to drop the bat.
Instead of doing so, he went into his garage. Either before
or after Ceballos went into the garage, Officer Husk drew his
firearm and Officer Ward drew his less lethal taser. Ceballos
emerged from the garage with the bat in his hand and began
walking toward the officers, who had their weapons drawn and
continued shouting commands. The evidence is conflicting as
to whether Ceballos was walking quickly or slowly toward the
officers and whether Officers Husk and Ward continued to
advance toward Ceballos or stopped their approach to give him
an opportunity to comply with their commands. It is
undisputed that he did not comply with their commands,
instead responding with comments such as "Fuck
you!" and "Or what, Motherfucker?" Officer
Husk says he replied, "Or you will be shot," and
continued to order him to stop and drop the bat. Officers
Husk and Ward have testified that they did not retreat from
Ceballos because, in accordance with their training, they
wanted to try to contain him and prevent him from running
away and endangering the public. They also say they were in
fear for their lives.
At some point Officer Ward fired his taser, but again the
evidence is conflicting. . . . From this conflicting evidence
a jury could infer that Officer Husk fired his gun at
virtually the same time that Officer Ward deployed his taser,
if not sooner.
(Id. 708-09.) Officer Snook, who had
"sprinted" back to his car to get his beanbag
shotgun (id. 709), had not yet returned when
Ceballos was killed.
Officer Husk reported, after the incident, that he saw a
knife in Ceballos' other hand as the distance narrowed
between the officers and Ceballos. [Ceballos's friends]
Castillo and Martinez say Ceballos was not carrying a knife.
Officer Husk admits he never reported seeing this knife to
any other officer until after he shot Ceballos, and that his
commands to Ceballos were to drop the bat. Officers Ward and
Snook and Commander Carbone did not see a knife until after
Ceballos had been shot. A responding fire fighter reported
seeing a closed pocketknife fall out of Ceballos' pocket
after he had been shot, as responders rolled him over.
Thornton police officer is trained on the proper use of
force, including deadly force. As for the use of force
"against mentally ill, emotionally disturbed, or
individuals in crisis," the City "offers a 40-hour
Crisis Intervention Training (CIT) course."
CIT is specifically designed to train officers to deal with
people in crisis by using techniques such as maintaining
safety by using time and distance; taking steps to calm the
situation by using quiet voices; avoiding getting too close,
too fast; not rushing into the situation; assessing the need
for backup; making a plan with fellow officers for the best
course of action; gathering information from those on the
scene; avoiding escalating the situation; communicating in a
calm, non-threatening manner; not having multiple people
giving commands at the same time; and containing the subject
by establishing a perimeter.
training is not mandatory for the City's officers and
only half of them are CIT-trained. Relevant here, Officer
Husk was not CIT-trained, but Officer Ward was. The officers
in this case did not employ CIT strategies. Plaintiffs
submitted expert evidence that the City "is not in
compliance with industry standards" in CIT training
(id. 711), and that "the failure to use
de-escalation techniques, the department's action in not
training Officer Husk in CIT, and Officer Husk's action
in assuming responsibility for [a] mental health crisis
situation simply because the call was in his district, were
not consistent with well-established modern police
standards" (id. 712).
estate ("Ceballos") and his surviving widow and two
children ("Plaintiffs") sued Officer Husk and the
City of Thornton, asserting both federal and state-law
claims. Relevant here, the district court denied Defendants
summary judgment on three claims: 1) Ceballos's 42 U.S.C.
§ 1983 claim alleging that Officer Husk used excessive
force in violation of the Fourth Amendment; 2) Ceballos's
§ 1983 claim alleging the City failed to train Officer
Husk adequately to deal with mentally ill or emotionally
disturbed individuals; and 3) Plaintiffs' state-law
wrongful death tort claim against Officer Husk. Defendants
start by acknowledging the obvious-the parties have very
different views as to what happened on the August night in
question. Plaintiffs assert that the circumstances at the
moment Officer Husk shot Ceballos did not warrant the use of
lethal force. Plaintiffs further contend that, even if lethal
force was justified at that moment, Officer Husk's
unreasonable conduct immediately preceding the shooting
wrongfully provoked the need for lethal force. Moreover,
Plaintiffs assert that, had the City trained its officers in
how best to approach individuals in crisis-those who are
emotionally disturbed, mentally ill or have diminished mental
capacity due to, for example, drugs or alcohol-Officer Husk
could have used that training to try to de-escalate the
situation with Ceballos and perhaps avoid the need for lethal
on the other hand, while conceding CIT training is valuable,
contend that there was no time to use CIT methods to try to
de-escalate this situation because of the risk Ceballos
presented to public safety. Defendants assert it was
incumbent upon officers to gain control of Ceballos as
quickly as possible. With those two general perspectives in
mind, we now address the specific issues presented by this
Ceballos's 42 U.S.C. § 1983 excessive-force claim
against Officer Husk
seeks damages from Officer Husk under § 1983, alleging
that the officer violated the Fourth Amendment by using
excessive force when he shot Ceballos. In his defense,
Officer Husk moved for summary judgment, asserting he was
entitled to qualified immunity.
We review the denial of a summary judgment motion raising
qualified immunity questions de novo. Because of the
underlying purposes of qualified immunity, we review summary
judgment orders deciding qualified immunity questions
differently from other summary judgment decisions. After a
defendant asserts a qualified immunity defense, the burden
shifts to the plaintiff. Applying the same standards as the
district court, we must determine whether the plaintiff has
satisfied a heavy two-part burden. The plaintiff must first
establish that the defendant's actions violated a
constitutional or statutory right. If the plaintiff
establishes a violation of a constitutional or statutory
right, he must then demonstrate that the right at issue was
clearly established at the time of the defendant's
unlawful conduct. In determining whether the right was
"clearly established," the court assesses the
objective legal reasonableness of the action at the time of
the alleged violation and asks whether the right was
sufficiently clear that a reasonable officer would understand
that what he is doing violates that right.
. . . If the plaintiff fails to satisfy either part of the
two-part inquiry, the court must grant the defendant
qualified immunity. If the plaintiff successfully establishes
the violation of a clearly established right, the burden
shifts to the defendant, who must prove that there are no
genuine issues of material fact and that he or she is
entitled to judgment as a matter of law. In short, although
we review the evidence in the light most favorable to the
nonmoving party, the record must clearly demonstrate the
plaintiff has satisfied his heavy two-part burden; otherwise,
the defendants are entitled to qualified immunity.
Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001)
(citations, internal quotation marks, alteration omitted);
see also Cox v. Glanz, 800 F.3d 1231, 1243 (10th
the district court denied Officer Husk qualified immunity,
ruling that Ceballos had stated a clearly established Fourth
Amendment violation and that there were genuinely disputed
issues of material fact that precluded granting the officer
summary judgment on that Fourth Amendment claim. Although it
is not clear from the record whether the district court
properly applied the correct legal framework for ruling on a
qualified-immunity defense raised in a summary judgment
motion, our review of the court's summary judgment
decision is de novo, and so we proceed under the framework
provided by Medina, 252 F.3d at 1128, and
Cox, 800 F.3d at 1243.
this court has jurisdiction to consider Husk's
interlocutory appeal from the denial of qualified immunity
only to the extent that it presents abstract issues of law.
See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
We do not have jurisdiction to review the district
court's determination that there are disputed factual
issues that preclude summary judgment. See Johnson,
515 U.S. at 307.
appeal, Officer Husk does not challenge the clearly
established general Fourth Amendment principles that the
district court identified as applicable to the situation
presented here. Instead, Husk contends only that this clearly
established law was not sufficiently precise and tailored to
this factual scenario to apprise him that his conduct in this
situation violated the Fourth Amendment.
clearly established, ordinarily there must be prior Supreme
Court or Tenth Circuit precedent, "or the weight of
authority from other circuits," that would have put an
objective officer in Husk's position on notice that he
was violating Ceballos's Fourth Amendment rights.
Carabajal v. City of Cheyenne, 847 F.3d 1203, 1210
(10th Cir.), cert. denied, 138 S.Ct. 211 (2017). As
the district court recognized,
[a] police officer violates an arrestee's clearly
established Fourth Amendment right to be free from excessive
force during an arrest if the officer's actions were not
"objectively reasonable" in light of the facts and
circumstances confronting him. Graham v. Connor, 490
U.S. 386, 396 (1989). Determining whether the force used to
effect a particular seizure is reasonable under the Fourth
Amendment requires careful attention to the facts and
circumstances of each particular case, including the severity
of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether
he is actively resisting arrest or attempting to evade arrest
by flight. Id.
(Aplt. App. 712.)
"The 'reasonableness' of a particular use of
force must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of
hindsight." . . . And "[t]he calculus of
reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments-in
circumstances that are tense, uncertain, and rapidly
evolving-about the amount of force that is necessary in a
Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018) (per
curiam) (quoting Graham, 490 U.S. at 396-97).
However, officers are not justified in using deadly force
unless objectively reasonable officers in the same position
"would have had probable cause to believe that there was
a threat of serious physical harm to themselves or to
others." Thomson v. Salt Lake Cty., 584 F.3d
1304, 1313 (10th Cir. 2009) (internal quotation marks,
emphasis omitted); see also Kisela, 138 S.Ct. at
1152 (discussing Tennessee v. Garner, 471
U.S. 1, 11 (1985)).
district court further correctly recognized that
[t]he reasonableness of the use of force depends not only on
whether the officers were in danger at the precise moment
they used force but also on whether the officers' own
conduct during the seizure unreasonably created the need to
use such force. Hastings v. Barnes, 252 Fed.Appx.
197, 203 (10th Cir. 2007) (unpublished); see also Medina
v. Cram, 252 F.3d 1124, 1132 (10th Cir. 2001); Allen
v. Muskogee, Okl., 119 F.3d 837, 840 (10th Cir. 1997);
Sevier v. City of Lawrence, Kan., 60 F.3d 695, 699
(10th Cir. 1995). However, only reckless and deliberate
conduct that is "immediately connected to the seizure
will be considered." Hastings, 252 Fed.Appx. at
203 (citing Medina, 252 F.3d at 1132). Mere negligence
or conduct attenuated by time or intervening events is not to
be considered. Id., citing Sevier, 60 F.3d
at 699 n.8. The mentally ill or disturbed condition of the
suspect is a relevant factor in determining reasonableness of
an officer's responses to a situation. See Giannetti
v. City of Stillwater, 216 Fed.Appx. 756, 764 (10th Cir.
2007) (unpublished); Allen, 119 F.3d at 840, 842;
Sevier, 60 F.3d at 699, 701 and n.10.
(Aplt. App. 713 (footnote added).) But "officers are not
required to use alternative, less intrusive means if their
conduct is objectively reasonable." Jiron, 392
F.3d at 414.
Husk does not dispute these clearly established Fourth
Amendment principles. Instead, he contends that this
established law is too general to have warned him that the
specific actions he took during the confrontation with
Ceballos would violate the Fourth Amendment.
Supreme Court has warned against defining a clearly
established right "at a high level of generality."
White v. Pauly, 137 S.Ct. 548, 552 (2017) (per
curiam) (quoting Ashcroft v. al-Kidd, 563 U.S. 731,
742 (2011)). Instead, "the clearly established law must
be 'particularized' to the facts of the case."
Id. (quoting Anderson v. Creighton, 483
U.S. 635, 640 (1987)). This is not to say that there must be
"a case directly on point for a right to be clearly
established." Kisela, 138 S.Ct. at 1152
(quoting White, 137 S.Ct. at 551). But the
"existing precedent must have placed the statutory or
constitutional question beyond debate." Id.
(quoting White, 137 S.Ct. at 551). "A clearly
established right is one that is 'sufficiently clear that
every reasonable official would have understood that what he
is doing violates that right.'" Mullenix v.
Luna, 136 S.Ct. 305, 308 (2015) (quoting Reichle v.
Howards, 566 U.S. 658, 664 (2012)).
Clearly established Tenth Circuit case law provided an
objective officer in Husk's position notice that his
conduct (as we accept it here) violated the Fourth
Ceballos is able "to identify a [prior] case where an
officer acting under similar circumstances as Officer [Husk]
was held to have violated the Fourth Amendment."
White, 137 S.Ct. at 552. That case is Allen v.
Muskogee, 119 F.3d 837, 839-41 (10th Cir. 1997). There,
Terry Allen "left his home after an altercation with his
wife and children," taking ammunition and several guns
with him. Id. at 839. Officers were told that Allen
"was armed and had threatened family members," and
that there was an eleven-year-old outstanding warrant for his
arrest. Id. Allen drove to his sister's home and
parked his car out front; she called police to report that
Allen was "threatening suicide." Id. Three
officers arrived to find that "Mr. Allen was sitting in
the driver's seat with one foot out of the vehicle. He
had a gun in his right hand, which was resting on the console
between the seats." Id. Lieutenant Smith
"approached the bystanders who were standing near Mr.
Allen's vehicle, and ordered them to step back, which
they did." Id.
As Lt. Smith repeatedly told Mr. Allen to drop his gun,
Officer Bentley McDonald arrived and joined Lt. Smith at the
driver's side door. Lt. Smith then reached into the
vehicle and attempted to seize Mr. Allen's gun, while
Officer Bentley held Mr. Allen's left arm. Officer Bryan
Farmer, who arrived with Officer Bentley, approached Mr.
Allen's car from the passenger side, and attempted to
open a passenger side door. Mr. Allen reacted by pointing the
gun toward Officer Farmer, who ducked and moved behind the
car. Mr. Allen then swung the gun toward Lt. Smith and
Officer McDonald, and shots were exchanged. Lt. Smith and
Officer McDonald fired a total of twelve rounds into the
vehicle, striking Mr. Allen four times. The entire sequence,
from the time Lt. Smith arrived to the time Mr. Allen was
killed, lasted approximately ninety seconds.
analyzing these circumstances, Allen first set forth
the relevant Fourth Amendment principles, the same principles
the district court recognized in this case:
The excessive force inquiry includes not only the
officers' actions at the moment that the threat was
presented, but also may include their actions in the moments
leading up to the suspect's threat of force. Of course,
the use of force must be judged from the perspective of a
reasonable officer on the scene, who is often forced to make
split-second judgments about the amount of force that is
necessary in a particular situation. However, . . . the
reasonableness of Defendants' actions depends both on
whether the officers were in danger at the precise moment
that they used force and on whether Defendants' own
reckless or deliberate conduct during the seizure
unreasonably created the need to use such force. We will thus
consider an officer's conduct prior to the suspect's
threat of force if the conduct is "immediately
connected" to the suspect's threat of force.
Id. at 840 (citations, internal quotation marks,
these principles, Allen held that that a jury could
find that the officers used excessive force under the
circumstances presented in that case. Id. at 840-41.
In particular, Allen noted that there was disputed
evidence as to how Lt. Smith approached Allen: "[S]ome
deposition testimony indicate[d] that Lt. Smith ran
'screaming' up to Mr. Allen's car and immediately
began shouting at Mr. Allen to get out of his car; other
testimony indicates that Lt. Smith approached cautiously and
tried talking Mr. Allen into giving up the gun."
Id. at 841. Because "[t]he entire incident,
from the time Lt. Smith arrived to the time of the shooting,
took only ninety seconds[, ] . . . the officers'
preceding actions were so 'immediately connected' to
Mr. Allen's threat of force that they should be included
in the" inquiry into the reasonableness of the
officers' actions. Id. In light of this
evidence, Allen held that "a reasonable jury
could conclude . . . that the officers' actions were
reckless and precipitated the need to use deadly force."
circumstances at issue in Allen are closely
analogous to those at issue here. Officer Husk shot and
killed an emotionally distraught Ceballos within a minute of
arriving on scene. Under the Estate's version of the
facts-which Husk accepts as true for purposes of this
appeal-Husk approached Ceballos quickly, screaming at
Ceballos to drop the bat and refusing to give ground as
Ceballos approached the officers.
fact, the circumstances in Allen actually provide
stronger justification for the police shooting at issue
there. Allen was armed with a weapon-a gun-capable of harming
someone from a much greater distance and with greater lethal
potential than Ceballos's baseball bat (or at worst, his
pocket knife). Further, unlike this case where there were no
members of the public in the area when officers approached
Ceballos, in Allen, the officers had to tell
bystanders to get back as officers approached Allen's
car. In Allen, then, there was arguably a more
compelling reason for officers to take precipitous action and
ultimately to use fatal force than is presented in our case.
Nevertheless, the Tenth Circuit held in Allen that
the officers were not entitled to summary judgment on the
issue of whether they ...