438 F.3d 1036 (10th Cir. 2006), 04-1435, Moore v. Guthrie

Docket Nº:04-1435.
Citation:438 F.3d 1036
Party Name:Tracy MOORE, Plaintiff-Appellant, v. Michael GUTHRIE, individually and in his official capacity as Chief of Police of the City of Evans, Colorado; City of Evans, Colorado, a municipal corporation, Defendants-Appellees.
Case Date:February 22, 2006
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1036

438 F.3d 1036 (10th Cir. 2006)

Tracy MOORE, Plaintiff-Appellant,


Michael GUTHRIE, individually and in his official capacity as Chief of Police of the City of Evans, Colorado; City of Evans, Colorado, a municipal corporation, Defendants-Appellees.

No. 04-1435.

United States Court of Appeals, Tenth Circuit.

Feb. 22, 2006.


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[Copyrighted Material Omitted]

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Michael T. Lowe (Marc F. Colin with him on the briefs) of Bruno, Bruno & Colin, P.C., Denver Colorado, for Plaintiff-Appellant.

David R. DeMuro (Lana L. Steven with him on the brief) of Vaughan & DeMuro, Denver, Colorado, for Defendants-Appellees.

Before BRISCOE, McKAY, and EBEL, Circuit Judges.

McKAY, Circuit Judge.

Plaintiff was injured when a bullet flew up beneath his police officer's "riot helmet" during an intense "live fire" training exercise with other police officers, causing him to lose fifty-seven percent of his vision in one eye. The injured officer is a member of the City of Evans, Colorado, police department. The exercise is part of the department's firearms training program, and it simulates various "live fire" scenarios, where officers switch off playing the roles of perpetrators and policemen. The training exercise is meant to replicate combat scenarios that a police officer might encounter on the street. What makes the exercise so realistic is the use of "Simunition," a highly-specialized live ammunition specifically designed to replace the standard live ammunition in police officers' personal service weapons. Simunition is available for both .38 calibers and nine-millimeters, utilizes smokeless gunpowder as a propellant, and fires a plastic, liquid-filled, bullet-shaped projectile which shatters on impact, marking the target with brightly-colored liquid. Because Simunition is intended as a combat training tool, Simunition cartridges are specifically designed to be painful to a person on impact; the Simunition manufacturer refers to this characteristic as "impact penalty." A Simunition projectile striking unprotected skin will leave bruises, welts, and abrasions.

Simunition's manufacturer has also developed a line of protective equipment to be worn when training with Simunition rounds. This protective equipment includes a face mask which provides 360-degree head coverage and fits closely around the neck and chin without gaps; a throat collar; groin, torso, leg, and arm covers; and gloves. Three different firearms instructors, on three separate occasions, told Chief Guthrie that the manufacturer required its own face masks to be worn during exercises with Simunition rounds. Chief Guthrie did not authorize purchasing any of the protective equipment from Simunition's manufacturer. Instead, he authorized using "riot helmets" during the firearms training. Riot helmets cover the head above the neck, and incorporate a clear plastic shield which extends from the front of the helmet straight down in front of the wearer's face. But, riot helmets do not protect the neck or throat, and are positioned such that a gap of approximately three inches exists between the wearer's face and the plastic shield.

During an exercise which took place in a vacant lot, Plaintiff, wearing a riot helmet, was injured when a Simunition bullet flew

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up beneath his plastic shield and hit him in his right eye. He pursued two claims for relief in the district court: (1) a 42 U.S.C. § 1983 claim against the City of Evans for violation of his Fourteenth Amendment right to bodily integrity; and (2) a 42 U.S.C. § 1983 claim against Chief Guthrie individually for violation of this right. The district court dismissed Plaintiff's complaint for failure to state a claim for relief, specifically that the facts he pleaded were insufficient to defeat a qualified immunity defense.

To survive a motion to dismiss for failure to state a claim, Plaintiff must allege facts sufficient to overcome qualified immunity. The first prong of an assertion to defeat a qualified immunity defense requires there to have been a violation of a clearly established constitutional right. Siegert v. Gilley, 500 U.S. 226, 231 (1991). The second is the requirement that the violated right was "clearly established" at the time of the alleged conduct. Id. at 232. The district court dismissed Plaintiff's complaint because the stated facts did not rise to the conscience-shocking level necessary to plead a constitutional violation and because Plaintiff had not demonstrated that the alleged constitutional violation was contrary to clearly...

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