Estate Of Ceballos v. Husk

• Decision Date: 26 March 2019
• Docket Number: No. 17-1216,17-1216
• Citation: 919 F.3d 1204
• Parties: ESTATE OF Jaime CEBALLOS ; Quianna Vigil; Naveyah Ceballos, through next friend; Jayden Ceballos, through next friend, Plaintiffs - Appellees, v. William HUSK, individually; City of Thornton, Defendants - Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

919 F.3d 1204

ESTATE OF Jaime CEBALLOS ; Quianna Vigil; Naveyah Ceballos, through next friend; Jayden Ceballos, through next friend, Plaintiffs - Appellees,

v.William HUSK, individually; City of Thornton, Defendants - Appellants.

No. 17-1216

United States Court of Appeals, Tenth Circuit.

FILED March 26, 2019

Courtney B. Kramer (Eric M. Ziporin with her on briefs) Senter Goldfarb & Rice, LLC, Denver, Colorado, for Defendants-Appellants.

Erica T. Grossman (Anna Holland Edwards with her on the brief) Holland, Holland Edwards & Grossman, P.C., Denver, Colorado, for Plaintiffs-Appellees.

Before BACHARACH, EBEL, and MORITZ, Circuit Judges.

EBEL, Circuit Judge.

Jaime Ceballos’s wife, Quianna Vigil, called police on an August evening in 2013 to report that her husband was in their driveway with a baseball bat "acting crazy," and that he was drunk and probably on drugs. Vigil further reported that she was afraid and had left the house with their seventeen-month-old; Vigil wanted police to remove Ceballos so she could return home to put the child to bed. Defendant William Husk and several other Thornton police officers responded. Within a minute of their arrival, Officer Husk shot Ceballos to death in the street in front of his home. Ceballos’s estate (also referenced herein as "Ceballos") and his surviving wife and children initiated this litigation against Officer Husk and the City of Thornton. Relevant here, Plaintiffs assert three claims: 1) a 42 U.S.C. § 1983 claim against Officer Husk, alleging he used excessive force in violation of the Fourth Amendment; 2) a § 1983 claim alleging the City failed to train Officer Husk adequately in how to handle situations involving individuals who are emotionally distraught or who have a diminished ability to reason; and 3) a state-law wrongful death tort claim against Husk. In this interlocutory appeal, Defendants challenge the district court’s decision to deny them summary judgment on each of these three claims. We AFFIRM the district court’s decision denying Officer Husk summary judgment on the § 1983 excessive-force claim. We DISMISS for lack of jurisdiction both the City’s appeal from the denial of summary judgment on the § 1983 failure-to-train claim as well as Husk’s appeal involving the state-law wrongful death claim.

I. BACKGROUND

As the district court indicated throughout its decision, there remain numerous disputed issues of material fact underlying the claims at issue in this case. But in this interlocutory appeal from the denial of summary judgment premised in part on Officer Husk’s assertion of qualified immunity, we "take as given the district court’s assessment of what facts a reasonable jury could accept at trial," in light of the summary-judgment record. Walton v. Powell, 821 F.3d 1204, 1208 (10th Cir. 2016) (applying Johnson v. Jones, 515 U.S. 304, 317, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) ). Further, we "view the facts in the light most favorable to the non-moving part[ies] and resolve all factual disputes and reasonable inferences in [their] favor." Knopf v. Williams, 884 F.3d 939, 946 (10th Cir. 2018) (internal quotation marks omitted).

A. The shooting

Ceballos’s wife called 911 at 7:30 p.m. on August 30, 2013, reporting, among other things, that her husband was in the driveway of their home "with two [baseball] bats and acting crazy; that she was afraid and had her 17-month old daughter with her; that Ceballos was drunk and probably on drugs; and that two of Ceballos’ friends were with him." (Aplt. App. 707.) The 911 dispatcher issued a radio call regarding "a high priority disturbance involving a party armed with one or more bats, describing it as a ‘DK [drunk] unwanted party’ and a ‘disturbance.’ " (Id. ) The dispatcher also indicated that Ceballos "is known to have knives." (Id. 214.) "Radio traffic" further reported that Ceballos had been a " ‘walkaway’ from [a nearby medical center] the previous night." (Id. 707.)

The dispatcher sent officers further information about the situation over the "Computer-Aided Dispatch (CAD) system" (id. 707)—including information that Ceballos had threatened his wife with a knife several months earlier and that he was not taking his anti-depression medication. Husk, however, did not look at the CAD.

Husk arrived on scene at the same time as Officer Ward. Because the call occurred in his district, Husk took charge. The two officers

parked near the vehicle in which [Quianna] Vigil had parked with her daughter, several houses down the street from the driveway where Ceballos was located. The officers spoke to Vigil and identified her as the reporting caller, and then began to walk toward Ceballos. As Officers Ward and Husk walked toward the residence, two men who had been with Ceballos, Andrew Castillo and Sergio Martinez, approached and told officers that Ceballos was not acting right and might be on drugs. Castillo and Martinez say that the officers refused to take additional information from them and continued to advance toward Ceballos. Castillo says he was told to "shut the fuck up" and "get back."

(Id. 707-08.)

At that time, two other officers arrived in separate cars; Commander Carbone parked near Husk’s and Ward’s patrol cars, while Officer Snook parked on the other side of Ceballos’s home and began approaching Ceballos from the opposite direction as Husk and Ward. Officer Snook then decided to return to his vehicle to get a beanbag shotgun, which is non-lethal and can be fired at a greater distance than a Taser. Snook testified in his deposition

that he recognized Ceballos from the walkaway incident the night before, and thought from observing him in the driveway that something in his face "didn’t seem right." When Snook turned [to his patrol car] to get his [beanbag] shotgun, he did not think that either his own life or the lives of the other officers were in danger given their respective distances from Ceballos and that he was armed with a baseball bat.

(Id. 709-10.)

Not waiting for Officer Snook to return with the beanbag gun, Officers Husk and Ward continued to approach Ceballos. When they "were approximately 100 yards from the [Ceballos] residence, they saw Ceballos pacing in the driveway, swinging a baseball bat, yelling and throwing his arms in the air." (Id. 708.) There was no one else in the driveway with Ceballos. "By this time, the officers knew that [Ceballos’s wife] and her daughter were parked down the street from Ceballos and that Ceballos’ two friends had also left his immediate vicinity." (Id. ) Furthermore, the officers "did not see any neighbors or other members of the public."¹ (Id. )

Officers Husk and Ward walked in the middle of the street toward Ceballos to keep a clear line of sight. They both repeatedly shouted commands for Ceballos to drop the bat. Instead of doing so, he went into his garage. Either before or after Ceballos went into the garage, Officer Husk drew his firearm and Officer Ward drew his less lethal taser. Ceballos emerged from the garage with the bat in his hand and began walking toward the officers, who had their weapons drawn and continued shouting commands. The evidence is conflicting as to whether Ceballos was walking quickly or slowly toward the officers and whether Officers Husk and Ward continued to advance toward Ceballos or stopped their approach to give him an opportunity to comply with their commands. It is undisputed that he did not comply with their commands, instead responding with comments such as "Fuck you!" and "Or what, Motherfucker?" Officer Husk says he replied, "Or you will be shot," and continued to order him to stop and drop the bat. Officers Husk and Ward have testified that they did not retreat from Ceballos because, in accordance with their training, they wanted to try to contain him and prevent him from running away and endangering the public. They also say they were in fear for their lives.

At some point Officer Ward fired his taser, but again the evidence is conflicting.... From this conflicting evidence a jury could infer that Officer Husk fired his gun at virtually the same time that Officer Ward deployed his taser, if not sooner.

(Id. 708-09.) Officer Snook, who had "sprinted" back to his car to get his beanbag shotgun (id. 709), had not yet returned when Ceballos was killed.

Officer Husk reported, after the incident, that he saw a knife in Ceballos’ other hand as the distance narrowed between the officers and Ceballos. [Ceballos’s friends] Castillo and Martinez say Ceballos was not carrying a knife. Officer Husk admits he never reported seeing this knife to any other officer until after he shot Ceballos, and that his commands to Ceballos were to drop the bat. Officers Ward and Snook and Commander Carbone did not see a knife until after Ceballos had been shot. A responding fire fighter reported seeing a closed pocketknife fall out of Ceballos’ pocket after he had been shot, as responders rolled him over.

(Id. 710.)

B. Officer training

Every Thornton police officer is trained on the proper use of force, including deadly force. As for the use of force "against mentally ill, emotionally disturbed, or individuals in crisis," the City "offers a 40-hour Crisis Intervention Training (CIT) course." (Id. 710.)

CIT is specifically designed to train officers to deal with people in crisis by using techniques such as maintaining safety by using time and distance; taking steps to calm the situation by using quiet voices; avoiding getting too close, too fast; not rushing into the situation; assessing the need for backup; making a plan with fellow officers for the best course of action; gathering information from those on the scene; avoiding escalating the situation; communicating in a calm, non-threatening manner; not having multiple people giving commands at the same time; and containing the subject by establishing a perimeter.

(Id. )

CIT training is not mandatory for the City’s officers and only half of them are CIT-trained. Relevant here, Officer Husk was not CIT-trained, but...