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Estate of Ceballos v. Husk

United States Court of Appeals, Tenth Circuit

March 26, 2019

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.

          Appeal 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 Defendants-Appellants.

          Erica T. Grossman (Anna Holland Edwards with her on the brief) Holland, Holland Edwards & Grossman, P.C., Denver, Colorado, for Plaintiffs-Appellees.

          Before BACHARACH, EBEL, and MORITZ, Circuit Judges.


         Jaime 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 claim.

          I. BACKGROUND

         As the 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).

         A. The shooting

         Ceballos's 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.)

         The 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 the CAD.

         Husk arrived on scene at the same time as Officer Ward. Because the call occurred in his district, Husk took charge. The two officers

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."

(Id. 707-08.)

         At that 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.

(Id. 709-10.)

         Not 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."[1] (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.

(Id. 710.)

         B. Officer training

         Every 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." (Id. 710.)

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.


         CIT 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).

         C. This litigation

         Ceballos's 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 immediately appealed.


         We 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 force.

         Defendants, 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 interlocutory appeal.

         A. Ceballos's 42 U.S.C. § 1983 excessive-force claim against Officer Husk

         Ceballos 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 Cir. 2015).

         Here, 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.

         However, 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.

         On 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.

         To be 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 particular situation."

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)).

         The 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).[2] 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.

         Officer 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.

         The 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)).

         1. 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 Amendment

         Here, 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.


         In 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, alteration omitted).

         Applying 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." Id.

         The 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.

         In 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 ...

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