Cordova v. Aragon

• Citation: 569 F.3d 1183
• Decision Date: 17 June 2009
• Docket Number: No. 08-1222.,08-1222.
• Parties: Tracey CORDOVA, Morgan Douthwit and Divinity Cordova, Plaintiffs-Appellants, v. Derek ARAGON and City of Commerce City, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

569 F.3d 1183

Tracey CORDOVA, Morgan Douthwit and Divinity Cordova, Plaintiffs-Appellants, v. Derek ARAGON and City of Commerce City, Defendants-Appellees.

No. 08-1222.

United States Court of Appeals, Tenth Circuit.

June 17, 2009.

Brice A. Tondre, Lakewood, CO, for Plaintiffs-Appellants.

Thomas S. Rice (Elliot J. Scott with him on the brief), Senter Goldfarb & Rice, L.L.C., Denver, CO, for Defendants-Appellees.

Before O'BRIEN, ANDERSON and McCONNELL Circuit Judges.

McCONNELL, Circuit Judge.

Toby Cordova was shot and killed while fleeing from police in an early-morning car chase in Commerce City, Colorado. His survivors brought this 42 U.S.C. § 1983 action against Officer Derek Aragon and Commerce City, alleging that Officer Aragon had violated Mr. Cordova's Fourth Amendment rights by using excessive force to end the police chase. Officer Aragon asserted qualified immunity and the defendants filed a motion for summary judgment. The district court granted their motion, holding that even when viewed in the light most favorable to the Cordovas the facts did not constitute excessive force. We disagree that the facts could not constitute a constitutional violation. We affirm the grant of summary judgment to Officer Aragon, however, on the grounds that the law was not clearly established, and also affirm as to Commerce City on the grounds that the Cordovas have not created a genuine issue of material fact as to whether a policy or custom of the city was the moving force behind any violation that might have occurred.

I. Background

The parties dispute a number of facts. Because the case was decided on summary judgement, we construe these facts in the light most favorable to the non-moving party—here, the Cordovas.

On May 3, 2006, at 12:58 A.M., Officer James Zamora of the Commerce City Police Department ("CCPD") spotted a truck driving in a subdivision where several new homes were being built. The truck was pulling a skid-steer loader (a piece of heavy excavation equipment) on a trailer behind it. Officer Zamora found this suspicious, as a number of thefts from construction sites had recently been reported in the area. He ran the trailer's license plate and determined that it was not registered to an address in the vicinity. The skid-steer loader was later determined to be stolen. Officer Zamora attempted to pull over the truck, but the driver—Mr. Cordova—refused to stop and ran through a solid red light. At this point, the pursuit began.

When the police radio announced that Officer Zamora was attempting to stop a suspicious vehicle, Officers Derek Aragon, Dax Nance, and Janae Rubino headed toward his location. The officers attempted to corner Mr. Cordova after he pulled into a business parking lot, but Mr. Cordova evaded capture by driving straight at them. Officer Rubino announced over the radio that the truck had attempted to ram her and that she had made an evasive turn to avoid being hit.

The pursuit continued, now moving beyond the parking lot and involving multiple police cars with lights and sirens in action. During the pursuit, Mr. Cordova twice drove off the road to avoid spike strips, once more ran a red light, repeatedly refused to stop for patrol cars with lights and sirens activated, and generally proceeded at speeds between 30 and 50 miles per hour. He eventually turned onto eastbound I-76. Officer Aragon became concerned that Mr. Cordova might cross over to the wrong side of the highway in an attempt to escalate the danger of the pursuit and avoid apprehension. He decided to cross onto the wrong side of the highway himself so that he could "warn traffic of the potential danger." Dist Op., 560 F.Supp.2d 1041, 1044.¹ Mr. Cordova then crossed onto the wrong side of the highway, too. Officer Aragon slowed his patrol car, at which point Mr. Cordova tried to ram it, according to statements by both Officer Aragon and Officer Nance, who was riding in Officer Aragon's car. Officer Aragon then accelerated past the truck, stopped his car, and attempted to deploy stop sticks. Although the car's exact position is not known because Officer Nance later moved it, Officer Aragon testified that he positioned it sideways so as to force Mr. Cordova either to move back across the highway into the proper lanes or to exit the highway via an on-ramp.

Both officers exited the police car, with Officer Nance positioned at the median in the center of the highway and Officer Aragon closer to the side. At this point there are key differences in each side's version of the story. Officer Nance says that the truck appeared to be heading in his direction, so he drew his gun and pointed it at the truck. He claims that the truck then swerved left, away from him and toward Officer Aragon. Officer Aragon says that he then attempted to deploy the stop sticks, but quickly realized the truck was too close. He drew his gun. He claims that he was in immediate danger, about to be run over, and therefore rapidly fired at the vehicle while simultaneously trying to move out of the way. He fired either four or five shots, one of which hit Mr. Cordova in the back of the head, fatally wounding him and causing the truck to crash into a tree.

Several of the facts cast doubt on Officer Aragon's claims of immediate danger, however. Only one bullet hit the front of the truck; the rest hit the side. The fatal shot, in fact, entered the truck from the side and went through the back of Mr. Cordova's head. This strongly suggests that Mr. Cordova had turned the truck and was no longer bearing down upon Officer Aragon at the moment the officer fired the fatal shot. The Cordovas also contend that Officer Aragon was never in any immediate danger in the first place and that he could have easily avoided any and all risk by simply remaining behind his patrol car as the truck approached. Furthermore, they suggest that it was Officer Aragon's own attempt to deploy the stop sticks in the truck's only path of escape—a maneuver that might have violated CCPD policies—that created whatever danger might have existed. In short, it is not at all clear whether Officer Aragon was ever in any immediate danger at any point during the chase, and it in fact seems quite likely that whatever danger he might have perceived had passed by the time he fired the fatal shot.

Given these facts, the district court agreed with the Cordovas that a reasonable juror could find that Officer Aragon fired the fatal shots at a point when Mr. Cordova posed no immediate danger to the officers' safety, and that Officer Aragon's own actions had recklessly contributed to a situation where he perceived a need to shoot Mr. Cordova. Even so, the district court held that the sheer danger demonstrated by Mr. Cordova, who had persisted in a car chase in which he had repeatedly refused to stop, had run through at least two red lights, had driven off the road at least twice to avoid the deployment of stop sticks, had allegedly attempted to ram multiple officers' patrol cars, and who was now towing a large piece of machinery on the wrong way down a highway at one in the morning, justified a reasonable officer in using deadly force to terminate the chase. Finding no Fourth Amendment violation, the district court granted the defendants' motion for summary judgment.

On appeal, Officer Aragon and Commerce City do not challenge the factual assumptions the district court made when granting summary judgment—that is, they accept the district court's premise that Officer Aragon was not in immediate danger and that no innocent bystanders were in the vicinity. See Aple. Br. 2 ("Officer Aragon and the City assume, for purposes of appeal, the factual determinations made by the lower Court."). Like the district court, they focus instead on what is undisputed: that "Cordova had fled a lawful stop, attempted to ram multiple police vehicles, run two red lights, and had begun driving the wrong way down an interstate highway," thereby "endanger[ing] innocent motorists and police officers," and argue that because of this the shooting was reasonable. Aple. Br. 26. For this reason, we accept the district court's findings that a reasonable juror could find that Officer Aragon was not in immediate danger at the time of the shooting, and we ask only whether the potential risk to third parties created by Mr. Cordova's driving was alone sufficient to justify Officer Aragon's shooting him.

II. Discussion

A. Did the Use of Force Constitute a Constitutional Violation?

A Fourth Amendment claim of excessive force is analyzed under the "objective reasonableness" standard that governs other Fourth Amendment inquiries. See Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ("[A]ll claims that law enforcement officers have used excessive force ... in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard."). We thus ask "whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 397, 109 S.Ct. 1865. Reasonableness "must be judged from the perspective of a reasonable officer on the scene," who is "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." Id. at 396-397, 109 S.Ct. 1865.

There is no easy-to-apply legal test for whether an officer's use of deadly force is excessive; instead, we must "slosh our way through the fact-bound morass of `reasonableness.'" Scott v. Harris, 550 U.S. 372, 383, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). This sloshing requires us to weigh "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." Id. Some of...