114 F.3d 1024 (10th Cir. 1997), 96-1298, Gallegos v. City of Colorado Springs

Docket Nº:96-1298.
Citation:114 F.3d 1024
Party Name:Jose GALLEGOS, Plaintiff-Appellant, and Julie Gallegos, Plaintiff, v. CITY OF COLORADO SPRINGS, a municipal corporation, and John Doe, an unidentified hit-and-run driver, Defendants, and Magdalena Santos and Daniel Lofgren, Defendants-Appellees.
Case Date:May 28, 1997
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1024

114 F.3d 1024 (10th Cir. 1997)

Jose GALLEGOS, Plaintiff-Appellant,

and

Julie Gallegos, Plaintiff,

v.

CITY OF COLORADO SPRINGS, a municipal corporation, and John

Doe, an unidentified hit-and-run driver, Defendants,

and

Magdalena Santos and Daniel Lofgren, Defendants-Appellees.

No. 96-1298.

United States Court of Appeals, Tenth Circuit.

May 28, 1997

Page 1025

Craig Cornish (Donna Dell'Olio on the briefs) of Cornish & Dell'Olio, Colorado Springs, Colorado, for Plaintiff-Appellant.

Stephen K. Hook, Assistant City Attorney (James G. Colvin II, City Attorney, with him on the brief), Colorado Springs, Colorado, for Defendants-Appellees.

Page 1026

Before ANDERSON, TACHA and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

Appellant Jose Gallegos filed this civil rights action in federal court against the city of Colorado Springs and Colorado Springs police officers Magdalena Santos and Daniel Lofgren. Mr. Gallegos alleged Officer Santos and Sergeant Lofgren deprived him of his rights under the Fourth and Fourteenth Amendments by seizing his person. The United States District Court for the District of Colorado entered judgment for the defendants, concluding the Colorado Springs police officers did not unreasonably seize Mr. Gallegos. Mr. Gallegos appeals the district court's judgment and we exercise jurisdiction pursuant to 28 U.S.C. § 1291.

I. FACTUAL AND PROCEDURAL BACKGROUND

At approximately 1:08 a.m. on May 20, 1992, Officer Santos and Sergeant Lofgren received a dispatch in their police cruiser concerning a reported prowler in the area of the intersection of William Avenue and East Cheyenne Road. The dispatcher informed the officers a resident had heard noises outside, had seen two people running south on William Avenue, and had "[h]eard a noise like they were messing with the fence." While in route to the area of the alleged disturbance, Sergeant Lofgren and Officer Santos received a second dispatch concerning a report received from another resident of the area. The second dispatch indicated a man and woman were "yelling and arguing" on William Avenue, the man was wearing a white T-shirt, and the man appeared to be drunk.

The officers arrived at William Avenue at approximately 1:15 a.m. Upon their arrival, they observed Mr. Gallegos walking north on the east sidewalk of William Avenue. Sergeant Lofgren and Officer Santos parked their police cruiser and walked toward Mr. Gallegos. As they approached Mr. Gallegos, the officers noticed he was wearing a gray tank top and smelled of alcohol. Mr. Gallegos appeared distraught as he was crying and "talking really loudly or shouting." Both of his hands were over his face and he appeared unsteady on his feet.

Sergeant Lofgren approached Mr. Gallegos in an effort to determine what was going on and to ascertain whether Mr. Gallegos had been near the fence that had been mentioned in the first dispatch report. However, when Sergeant Lofgren asked Mr. Gallegos what was going on, Mr. Gallegos ignored the sergeant's question. Sergeant Lofgren then grasped Mr. Gallegos' left arm and Mr. Gallegos jerked away and proceeded to walk on the sidewalk. Sergeant Lofgren then grabbed Mr. Gallegos' arm for a second time. In response, Mr. Gallegos jerked away and exclaimed "[l]eave me the fuck alone."

At that point, Sergeant Lofgren determined, based upon the totality of the circumstances, including Mr. Gallegos' refusal to stop, probable cause existed to arrest Mr. Gallegos for interference with a police officer, in violation of the ordinances of Colorado Springs. Sergeant Lofgren thus called for backup assistance, using his portable police radio.

At or around the time Sergeant Lofgren was calling for backup assistance, Mr. Gallegos walked into East Cheyenne Road shouting unrecognizable words. The officers followed Mr. Gallegos into the road and Sergeant Lofgren grabbed Mr. Gallegos' shoulder. Mr. Gallegos then jerked away and pivoted and faced the officers. With his fists clenched at waist level, Mr. Gallegos positioned himself in a crouched stance, similar to a wrestler's position.

Officer Lofgren reacted to Mr. Gallegos' crouched position by taking a step back from Mr. Gallegos. However, Officer Santos, fearing for her safety, stepped toward Mr. Gallegos and applied an arm bar maneuver to Mr. Gallegos' right arm. 1 Upon observing this procedure, Sergeant Lofgren grasped Mr. Gallegos' left arm and initiated a take-down action to ensure Mr. Gallegos would not strike Officer Santos with his free arm. After some resistance by Mr. Gallegos, the officers placed Mr. Gallegos face down on the

Page 1027

pavement. As Sergeant Lofgren reached for his handcuffs, he heard motor vehicles approaching from about a block away. One vehicle swerved past the parties, and a split second later, a second vehicle skidded sideways into Officer Santos and came to a stop on top of Mr. Gallegos.

The vehicle knocked Officer Santos back approximately ten feet. After Officer Santos regained her balance, she approached the vehicle and pounded on the passenger window with her flashlight. The vehicle then backed over Mr. Gallegos and drove away. From the time Sergeant Lofgren and Officer Santos arrived at William Avenue to the time the vehicle ran over Mr. Gallegos, only one minute and forty-four seconds elapsed.

Mr. Gallegos sustained serious injuries as a result of being run over by the unidentified vehicle on May 20, 1992. Mr. Gallegos filed suit in federal court against Sergeant Lofgren, Officer Santos, the City of Colorado Springs, and John Doe, a hit-and-run driver, seeking to recover compensatory and punitive damages. Mr. Gallegos' amended complaint alleged, inter alia, Sergeant Lofgren and Officer Santos deprived Mr. Gallegos of his Fourth and Fourteenth Amendment rights by stopping him without reasonable suspicion and by unlawfully seizing him without probable cause.

On a motion for summary judgment, the district court determined the stop of Mr. Gallegos by Sergeant Lofgren and Officer Santos was supported by reasonable suspicion. 2 However, the court determined there was a genuine issue of material fact concerning whether Mr. Gallegos was seized without probable cause and whether Sergeant Lofgren and Officer Santos were entitled to qualified immunity for their actions.

Following a bench trial on the issue of liability, the court determined Mr. Gallegos' Fourth and Fourteenth Amendment rights were not violated because the seizure of Mr. Gallegos was justified by a "reasonabl[e] perceived threat to officer safety." Furthermore, to the extent Mr. Gallegos was subjected to an arrest, the court concluded Sergeant Lofgren and Officer Santos were entitled to qualified immunity. Following entry of judgment in favor of the defendants, Mr. Gallegos filed his Notice of Appeal.

II. ISSUES RAISED ON APPEAL

Mr. Gallegos raises three issues on appeal: (1) whether Sergeant Lofgren and Officer Santos violated Mr. Gallegos' Fourth and Fourteenth Amendment rights by seizing him without reasonable suspicion; (2) whether the seizure of Mr. Gallegos escalated into an arrest that was not supported by probable cause, thus violating Mr. Gallegos' Fourth and Fourteenth Amendment rights; and (3) if the officers seized Mr. Gallegos in violation of his Fourth and Fourteenth Amendment rights, whether...

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