584 F.3d 1304 (10th Cir. 2009), 06-4304, Thomson v. Salt Lake County

Docket Nº:06-4304.
Citation:584 F.3d 1304
Opinion Judge:HOLMES, Circuit Judge.
Party Name:Amy THOMSON, individually and as Guardian Ad Litem for Sadie Ann Marie Thomson and Andrew Wade Thomson, and Estate of Chad Thomson, by and through its personal representative, Amy Thomson, Plaintiffs-Appellants, v. SALT LAKE COUNTY, a political subdivision of the State of Utah, and Alan Morrical, an individual, Defendants-Appellees.
Attorney:Ryan B. Hancey (Joseph C. Rust with him on the brief), Kesler & Rust, Salt Lake City, UT, for Plaintiffs-Appellants. Nicholas M. D'Alesandro Jr. (Donald H. Hansen with him on the brief), Salt Lake County District Attorney's Office, Salt Lake City, UT, for Defendants-Appellees.
Judge Panel:Before TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges. HOLMES, Circuit Judge, Concurring.
Case Date:October 27, 2009
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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584 F.3d 1304 (10th Cir. 2009)

Amy THOMSON, individually and as Guardian Ad Litem for Sadie Ann Marie Thomson and Andrew Wade Thomson, and Estate of Chad Thomson, by and through its personal representative, Amy Thomson, Plaintiffs-Appellants,

v.

SALT LAKE COUNTY, a political subdivision of the State of Utah, and Alan Morrical, an individual, Defendants-Appellees.

No. 06-4304.

United States Court of Appeals, Tenth Circuit.

October 27, 2009

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Ryan B. Hancey (Joseph C. Rust with him on the brief), Kesler & Rust, Salt Lake City, UT, for Plaintiffs-Appellants.

Nicholas M. D'Alesandro Jr. (Donald H. Hansen with him on the brief), Salt Lake County District Attorney's Office, Salt Lake City, UT, for Defendants-Appellees.

Before TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Plaintiffs-Appellants Amy Thomson, individually and as guardian ad litem for her two children, and the estate of Chad Thomson, through Ms. Thomson as its personal representative, challenge the district court's grant of summary judgment for Defendants-Appellees Salt Lake County and Deputy Alan Morrical. First, Plaintiffs argue that it was error to grant summary judgment to Deputy Morrical on the basis of qualified immunity because the use of deadly force-allegedly involving the release of a police dog and the shooting of Mr. Thomson-violated a clearly established constitutional right. Second, Plaintiffs assert that the district court erred in finding the County not liable for failure to train officers on the subject of dealing with suicidal suspects. Finally, Plaintiffs argue that Defendants should not have been granted summary judgment on Plaintiffs' state-law claims.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we conclude that the district court did not err in granting summary judgment for Defendants. After determining that the release of a police dog does not constitute deadly force in this case, we conclude that Plaintiffs have not met their burden of demonstrating a constitutional violation regarding the fatal shooting of Mr. Thomson. It therefore was appropriate to grant summary judgment to Deputy Morrical on the basis of qualified immunity. Because Plaintiffs have not proven a constitutional violation, their failure to train claim against the County also must fail. As to Plaintiffs' state-law claims, the district court properly dismissed these claims because the Utah Governmental Immunity Act, Utah Code Ann. § § 63-30-1 et seq. , grants immunity to Defendants. Accordingly, we AFFIRM.

I. BACKGROUND

At approximately 2:00 a.m. on April 19, 2004, while out for an evening of drinking, Chad Thomson, called his wife, Amy Thomson. She was at a friend's apartment. During the course of this telephone call, Mr. Thomson became angry and threatened to act violently. He told Ms. Thomson to meet him at their residence. Ms. Thomson telephoned her mother, who

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was at that residence, and told her about this conversation. Ms. Thomson's mother then called 911. When Ms. Thomson arrived at the residence with her friend, she went to check on the firearms that the couple kept in their basement. She unexpectedly saw Mr. Thomson there; he pointed a gun at her. Ms. Thomson fled upstairs, and her friend made another call to 911, during which her friend told the 911 dispatcher about the gun-pointing incident and also told the dispatcher that Mr. Thomson had been talking about suicide. Mr. Thomson left the home sometime thereafter.

Salt Lake County Sheriff's deputies John Shire, Walter Jarvis, and Alan Morrical arrived at the Thomsons' home in response to the second 911 call. They learned that Mr. Thomson had threatened Ms. Thomson with a weapon, was likely armed and potentially suicidal, and had left his truck parked on a nearby street. Believing Mr. Thomson to be nearby, the officers-aided by Chaos, Deputy Morrical's police dog-searched the Thomson residence and yard, but they did not find Mr. Thomson. They did, however, confirm that a firearm was missing from the Thomson residence.

The officers then began a yard-by-yard search. While the officers were searching the darkened neighborhood, Ms. Thomson's friend, who had previously spoken to Mr. Thomson, was able to reach Mr. Thomson on her cellular telephone from her car parked outside the Thomson residence. She handed the telephone to Lieutenant Michael Wardle of the Salt Lake County Sheriff's Office, who identified himself and began to speak to Mr. Thomson. After Lieutenant Wardle told Mr. Thomson that he did not want to see anyone get hurt, Mr. Thomson told Lieutenant Wardle that if he did not want his officers to get hurt, he should have them leave the area. Lieutenant Wardle could hear a dog barking in the background of the call, so he radioed the officers to tell them that they must be close to Mr. Thomson's location, told them that Mr. Thomson wanted them to back off, and warned them to be careful.

Having received this information from Lieutenant Wardle, Deputy Morrical released Chaos into the third yard they searched in an attempt to locate Mr. Thomson. Chaos did not return when Deputy Morrical called for him, but the officers could hear noises coming from the yard. The officers, however, could not initially determine the source of the noise, possibly because it was raining heavily that night. The officers later determined that the source of the noise was Mr. Thomson.

As the three officers approached, they could hear Mr. Thomson yelling for them to call off the dog and threatening to shoot, although it was unclear if Mr. Thomson was threatening them or Chaos. The officers advanced and fanned out into the yard; Deputies Shire and Morrical could see Mr. Thomson holding a rifle and standing behind an object in the yard, but Deputy Jarvis could not see Mr. Thomson from where he was positioned. The officers ordered Mr. Thomson to put the gun down and come out with his hands up, stating they would then call off the dog. When Mr. Thomson did not follow the officers' instructions, they repeated their warning.

The exact sequence of events that transpired next is unclear. Deputy Morrical has stated that he saw Mr. Thomson place the barrel of his gun into his own mouth briefly, then take it out and move the barrel quickly toward Deputy Morrical. Deputy Shire, however, did not see Mr. Thomson put the barrel into his mouth but did see the gun first being pointed at

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Chaos-who was biting Mr. Thomson-and then the barrel being raised in Deputy Shire's direction. Deputy Shire thus prepared to fire his own weapon by depressing the trigger of his gun slightly. It is undisputed that Mr. Thomson was moving the gun very quickly and although the officers repeatedly ordered Mr. Thomson to drop his weapon, he refused to do so. The facts taken in the light most favorable to Plaintiffs indicate that at one point, Mr. Thomson had the gun in his mouth, and that immediately before he was shot, the gun was pointed upwards, near and toward Mr. Thomson's head.

It is undisputed, however, that at some point shortly before Mr. Thomson was killed, he was aiming the gun in the direction of the officers. Both Deputies Morrical and Shire perceived Mr. Thomson's conduct as physically threatening to them and prepared to shoot him based upon that conduct. Before Deputy Shire fully pulled his partially depressed trigger, Deputy Morrical fired one shot into Mr. Thomson's head, killing him. Events were unfolding extremely quickly; the entire sequence of events from when the officers entered the backyard and could see Mr. Thomson until the time that he was shot took place in perhaps as little as ten seconds.

Both Deputies Shire and Jarvis initially believed that Mr. Thomson had killed himself and reported as much to Lieutenant Wardle via radio. Deputy Morrical requested and received permission from Lieutenant Wardle to secure his dog, Chaos, in the police car; it was not until after Deputy Morrical had done so that he informed Lieutenant Wardle that he had fired one shot at Mr. Thomson.

Plaintiffs brought suit against Deputy Morrical and Salt Lake County, asserting an excessive force claim under 42 U.S.C. § 1983 as well as several state-law claims against both Defendants. Defendants filed a motion for summary judgment, arguing that Deputy Morrical was entitled to qualified immunity on the § 1983 claim, that the County could not be liable as there was no underlying constitutional violation, that the Utah Governmental Immunity Act barred certain state-law claims, and that they were entitled to judgment as a matter of law on the remaining state-law claims. The district court found that Defendants were entitled either to immunity from, or judgment as a matter of law on, the state-law claims. The court also determined that Plaintiffs had not met their burden of demonstrating excessive force on their constitutional claims; thus, the district court granted summary judgment to Defendants.

II. DISCUSSION

Plaintiffs assert three arguments on appeal. First, Plaintiffs claim that Defendants violated Mr. Thomson's clearly established constitutional rights by using excessive force. Next, Plaintiffs argue that Salt Lake County failed to adequately train its officers regarding their treatment of people believed to be suicidal. Finally, Plaintiffs assert that certain of their state-law claims should survive summary judgment, namely, their claims for assault, battery, and wrongful death.1

A. Standard of Review

We review the district court's grant of summary judgment de novo, employing the same legal...

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