614 F.3d 1213 (10th Cir. 2010), 09-1489, Brooks v. Gaenzle

Docket Nº:09-1489.
Citation:614 F.3d 1213
Opinion Judge:BRORBY, Circuit Judge.
Party Name:Keith Clayton BROOKS, Jr., Plaintiff-Appellant, v. Steve GAENZLE, Individually and in His Official Capacity as Deputy; Paul Smith, Individually and in His Official Capacity as Deputy; Terry Maketa, Individually and in His Official Capacity as Sheriff; El Paso County Sheriff's Department; El Paso County, Defendants-Appellees.
Attorney:Paul S. Swedlund of Baker Hostetler LLP, Denver, CO, for Plaintiff-Appellant. Gordon L. Vaughan of Vaughan & DeMuro, Colorado Springs, CO, for Defendants-Appellees.
Judge Panel:Before O'BRIEN, BRORBY, and GORSUCH, Circuit Judges.
Case Date:August 10, 2010
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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614 F.3d 1213 (10th Cir. 2010)

Keith Clayton BROOKS, Jr., Plaintiff-Appellant,

v.

Steve GAENZLE, Individually and in His Official Capacity as Deputy; Paul Smith, Individually and in His Official Capacity as Deputy; Terry Maketa, Individually and in His Official Capacity as Sheriff; El Paso County Sheriff's Department; El Paso County, Defendants-Appellees.

No. 09-1489.

United States Court of Appeals, Tenth Circuit.

August 10, 2010

Page 1214

Paul S. Swedlund of Baker Hostetler LLP, Denver, CO, for Plaintiff-Appellant.

Gordon L. Vaughan of Vaughan & DeMuro, Colorado Springs, CO, for Defendants-Appellees.

Before O'BRIEN, BRORBY, and GORSUCH, Circuit Judges.

BRORBY, Circuit Judge.

Appellant Keith Clayton Brooks, Jr., appeals the district court's grant of summary judgment in favor of Appellees Steve Gaenzle and Paul Smith-deputies with the El Paso County, Colorado Sheriff's Department-in his civil rights actions against them pursuant to 42 U.S.C. § 1983 and his state tort action pursuant to Colorado Revised Statute § 13-80-119.1 The

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crux of Mr. Brooks's appeal centers on his argument Deputies Gaenzle and Smith violated his Fourth Amendment right to be free from unreasonable seizure by use of excessive force when they shot him after he fled the scene of a violent crime-a burglary involving a gun used to shoot close range at the deputies when they responded to a call reporting the burglary. Mr. Brooks claims the district court erred in ruling no Fourth Amendment seizure occurred and, even if a seizure occurred, Deputy Gaenzle acted with objective reasonableness in shooting Mr. Brooks under the circumstances presented. He also contests the district court's grant of summary judgment on his federal action against the deputies for conspiracy and malicious prosecution and his state tort action against them for assault and battery. We exercise jurisdiction under 28 U.S.C. § 1291, affirm the district court's grant of summary judgment on the federal actions, and decline pendent jurisdiction on the state action, thereby reversing and remanding it to the district court with instructions to dismiss it without prejudice.

I. Factual Background

The underlying, undisputed facts surrounding Mr. Brooks's appeal are more fully set forth in the district court's order granting summary judgment in favor of the deputies.2 We summarize only the material, undisputed facts considered for our disposition of this appeal.

On October 17, 2005, Mr. Brooks and Nick Acevedo forcibly broke into a garage in El Paso County, Colorado, with the intent of burglarizing the attached house. Someone in the neighborhood contacted law enforcement, after which Deputies Gaenzle and Smith arrived on the scene. Both deputies heard what sounded like two or three people talking inside, so they announced their presence and entered the garage, where they saw a white male, later identified as Mr. Acevedo, run into the house and block the door with his body. As the officers tried to break down the door, someone from inside the house fired a shot which went through the door, barely missing the officers' heads and shoulders and spraying them with shrapnel. After the deputies left the garage and entered the back yard to ascertain if either of them was injured, they observed a black male flee the house and begin to climb a fence. The fleeing suspect was Mr. Brooks.

Deputy Gaenzle yelled " stop" as Mr. Brooks began to climb the fence.3 As Mr. Brooks continued to climb the fence, Deputy Gaenzle shot and struck him. Despite being shot, Mr. Brooks continued his flight by climbing over the fence and fleeing the scene. He joined Mr. Acevedo, who had also fled, and together they escaped in a car parked nearby. Three days later, law enforcement authorities found Mr. Brooks in a Colorado Springs, Colorado mall parking lot and, after chasing him to a nearby home, apprehended him. Thirteen days later, police shot and killed Mr. Acevedo during a gun fight in which he died holding the gun used to fire through the door during the burglary with Mr. Brooks.

With respect to the most contentiously disputed facts, Mr. Brooks claimed he never used or possessed a weapon during the burglary. However, both Deputies Gaenzle and Smith stated they saw a gun in his

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possession as he fled the house. In addition, the deputies claim they did not know whether the shot was fired by the person blocking the door with his body or someone else in the house, while Mr. Brooks contends it was Mr. Acevedo and they should have known it was him. While the parties dispute these facts, they are immaterial to our disposition on appeal of the issues presented.

Following his arrest, the State of Colorado charged Mr. Brooks with seven counts, including: (1) criminal attempt to commit murder in the first degree, after deliberation, of a police officer; (2) criminal attempt to commit murder in the second degree; (3) assault in the first degree; (4) first degree burglary-assault or menace; (5) first degree burglary-deadly weapon; (6) menacing; and (7) possession of a weapon by a felon. The jury convicted Mr. Brooks of all charges except the count for possession of a weapon by a felon. The jury also found Mr. Brooks did not use or possess a firearm for the purpose of imposing a sentence enhancement.

Thereafter, Mr. Brooks brought the instant civil action against Deputies Gaenzle and Smith. In his second amended complaint, Mr. Brooks raised three claims for damages, including allegations of: (1) a violation of 42 U.S.C. § 1983 based on the deputies' use of excessive force in seizing him by gunshot during the burglary; (2) a violation of 42 U.S.C. § 1983 based on their alleged malicious prosecution and a violation of 42 U.S.C. § 1985 for their alleged conspiracy to make false reports of his possession of a gun; 4 and (3) assault and battery by Deputy Gaenzle constituting an actionable tort under state law. Thereafter, the district court granted the deputies' motion for summary judgment on each claim. Mr. Brooks now appeals. We recount the district court's resolution of each of Mr. Brooks's claims and the issues the parties raise on appeal as follows in our discussion of those issues.

II. Discussion

A. Excessive Force Issue

In his first claim for relief under 42 U.S.C. § 1983, Mr. Brooks asserted Deputies Gaenzle and Smith violated his Fourth Amendment right to be free from unreasonable seizure when they used excessive and deadly force in shooting him as he fled. In ruling on the deputies' motion for summary judgment, the district court held no excessive force occurred based on its determination Mr. Brooks's shooting did not constitute a seizure and its alternative determination the force used was objectively reasonable under the circumstances presented.

In addressing the seizure issue, the district court relied on the Supreme Court's decision in Brower v. County of Inyo, 489 U.S. 593, 595-96, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), for the proposition a seizure only occurs if the government's actions " restrain the movement of the suspect." It further observed:

For a seizure to occur, the government does not have to literally stop the suspect in his tracks or freeze him in place. But, the plain meaning of the word seizure and various Supreme Court interpretations indicate that the government must do something that gives it the opportunity to control the suspect's ability to evade capture or control. See Brower, 489 U.S. at 595-96 [109 S.Ct. 1378] (" Violation of the Fourth Amendment requires an intentional acquisition of physical control." ).... In other words, the government must have substantially

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precluded the suspect's ability to loose himself from the government's control.

Apt.App. at 19. It also observed that in California v. Hodari D., 499 U.S. 621, 628-29, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), the Supreme Court determined no seizure occurred during the course of a foot chase because the government's " ‘ show of authority’ did not produce his stop." Apt.App. at 20. Similarly, it noted in Bella v. Chamberlain, 24 F.3d 1251, 1255 (10th Cir.1994), this court held shooting and striking a helicopter operated by an innocent hostage, but failing to seriously encumber his ability to flee or evade restraint, did not amount to a Fourth Amendment seizure. Applying the holdings of these cases to the instant case, the district court determined no seizure occurred when Deputy Gaenzle shot and struck Mr. Brooks because he managed to continue climbing the fence without the shot " even temporarily halt[ing]" his escape; eluded arrest for three days; and " still had enough spring in his step to evade police in the mall parking lot" before being chased and apprehended at a nearby home. Apt.App. at 21-23.

In making its determination, the district court also considered the cases relied on by Mr. Brooks. It pointed out Mr. Brooks relied on mere dicta in Bella to assert the shooting of a fleeing suspect automatically or per se constitutes a Fourth Amendment seizure. See 24 F.3d at 1255. In addressing the other cases on which Mr. Brooks relied, including Brower , Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985); Cole v. Bone, 993 F.2d 1328 (8th Cir.1993); and Lemery v. Beckner, 323 Fed.Appx. 644 (10th Cir.) (unpublished opinion), cert. denied, __ U.S. __, 130 S.Ct. 416, 175 L.Ed.2d 271 (2009), it pointed out the officers' use of deadly force in those cases actually terminated the fleeing suspects' movement, either by killing them or immediately or momentarily subduing them. It reasoned the holding in those cases would likely have been different if the fleeing suspects had, like Mr. Brooks, survived their respective encounters with the police and eluded...

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