Estate of Reat v. Rodriguez, 15-1001

• Decision Date: 31 May 2016
• Docket Number: No. 15-1001,15-1001
• Citation: 824 F.3d 960
• Parties: Estate of Jimma Pal Reat; James Pal Reat; Rebecca Awok Diag; Ran Pal; Changkuoth Pal; and Joseph Kolong, Plaintiffs–Appellees, v. Juan Jesus Rodriguez, individually, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

824 F.3d 960

Estate of Jimma Pal Reat; James Pal Reat; Rebecca Awok Diag; Ran Pal; Changkuoth Pal; and Joseph Kolong, Plaintiffs–Appellees

v.Juan Jesus Rodriguez, individually, Defendant–Appellant.

No. 15-1001

United States Court of Appeals, Tenth Circuit.

FILED May 31, 2016

As Amended on Rehearing in part August 12, 2016

Reconsideration En Banc Denied August 12, 2016^*

Eric M. Ziporin (Jennifer F. Kemp with him on the briefs), Senter Goldfarb & Rice, L.L.C., Denver, Colorado, for Appellant.

Erica Grossman (John R. Holland with her on the brief), Holland, Holland Edwards & Grossman, P.C., Denver, Colorado, for Appellees.

Before TYMKOVICH, Chief Judge, MURPHY, and BACHARACH, Circuit Judges.

TYMKOVICH

, Chief Judge.

This case arises out of the fatal shooting of Jimma Pal Reat at a Denver intersection. Reat was killed after Denver 911 operator Juan Rodriguez directed him back into the path of his armed assailants. His estate sued the 911 operator, alleging civil rights claims pursuant to 42 U.S.C. § 1983

and various state law claims.

Rodriguez moved for summary judgment on all claims against him on the basis of qualified immunity. The district court granted summary judgment in his favor on all constitutional claims except for a Fourteenth Amendment substantive due process claim based on a theory of state- created danger. Under that claim, Reat's Estate contends Rodriguez used his governmental authority to subject him to the callous shooting that caused Reat's death.

We conclude the law was not clearly established such that a reasonable 911 operator would have known his conduct violated Reat's constitutional rights. Because we decide only that the law was not clearly established, we do not opine on whether Rodriguez violated Reat's constitutional rights. We therefore reverse and remand for entry of summary judgment in favor of Rodriguez.

I. Background

The facts of this case are tragic. At 4:12 a.m. on April 1, 2012, Ran Pal called 911 to report that several men had thrown a bottle and broken the rear windshield of the car he was driving. He told Operator Rodriguez that although the attack had occurred at Tenth Avenue and Sheridan Boulevard in Denver, he and his passengers had fled to safety in the nearby city of Wheat Ridge on the west side of Sheridan Boulevard.

For reasons that remain unclear, Rodriguez told Pal that because the attack had occurred in Denver, he needed to return to the city in order to receive help from the police. At first, Pal refused to return. He told Rodriguez he was in a state of shock, needed time to recover, and did not want to drive. Pal pleaded with Rodriguez to send help to his current location. Over the course of the fourteen-minute call, Pal told the operator at least six times that he was injured, in shock, and afraid. Still, Rodriguez insisted the police could not help unless he returned to Denver. About three minutes into the call, Pal finally agreed. He remained on the phone with Rodriguez as he drove.

On his way back to Denver, Pal fleshed out the details of the assault on the call. He explained that he, his brother, cousin, and a friend had been driving through Denver when a red jeep pulled up next to them. While both cars were stopped at a red light, the men in the jeep threw bottles and bottle rockets at Pal's car, breaking the windshield. Shards of glass injured Pal's hand and face. He told Rodriguez he had gotten a partial license plate number as the assailants sped off northbound on Sheridan Boulevard. Pal continued to tell the operator he was in shock. Rodriguez asked where Pal was, and Pal replied that he was crossing Sheridan on Twenty–Ninth Avenue. Rodriguez instructed him to stop there, and continued to ask questions to determine whether an ambulance was necessary. Rodriguez failed to dispatch an ambulance or the police at this time.

About eight minutes into the call, Pal revealed to Rodriguez that the assailants had brandished a gun. Rodriguez asked questions about the size, color, and type of gun. He also asked more questions about the attackers, including their race and what they had been wearing. Pal told the operator that four or five Hispanic men had gotten out of the car and hurled forty-ounce beer bottles at his vehicle. He told Rodriguez he had fled the scene when his brother urged him to do so because the attackers were armed. After questioning the victims about whether they had been drinking, Rodriguez confirmed that Pal was still at Twenty-Ninth Avenue and Sheridan Boulevard. He told Pal to pull over and wait there for the officers whom he would dispatch. Rodriguez also instructed Pal to turn on his hazard lights so that the police could easily locate the vehicle.

About ten minutes into the call, another man in the car picked up the phone. The man repeated that they were all in shock and scared, and asked whether police were on their way to provide help. Though Rodriguez indicated he had sent the police, he in fact had not. Rodriguez asked that the phone be handed back to Pal. Rodriguez then had Pal confirm that his hazard lights were on, and reiterated that Pal needed to wait at that location. He warned Pal, “if you see them come back, I need you to call us right away at 911.” Aplt. App., Vol. III, at 281.

Seven seconds later, Pal shouted, “They're back, they're back[!]” Id. at 262. Pal handed the phone to someone else, who told Rodriguez that the men were shooting. Pal picked the phone back up to report that his brother had been shot. Over Pal's screams, Rodriguez continued to ask what was happening. Someone else picked up the phone and repeated the information. Rodriguez asked who had been shot, where they were located, and whether the attackers were still there. The speaker told Rodriguez that Reat was about to die and asked whether he could send an ambulance. Rodriguez continued to ask questions about the victim. Officers were dispatched to the scene about one minute after the shooting. Reat died of his injuries.

II. Analysis

Reat's Estate brought federal claims pursuant to 42 U.S.C. § 1983

and various state law claims against Rodriguez and the City and County of Denver. The defendants claimed they were protected by qualified immunity, arguing they did not violate Reat's rights under clearly established law. The district court dismissed the claims against the City and County. Only claims against Rodriguez proceeded.

A. Qualified Immunity

1. Clearly Established Law

Qualified immunity exists to protect government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Dodds v. Richardson , 614 F.3d 1185, 1191 (10th Cir. 2010)

(quoting Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). Qualified immunity is not only a defense to liability, but immunity from suit; thus, “it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth , 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

Accordingly, in qualified immunity cases at the summary judgment stage, a “plaintiff must demonstrate on the facts alleged (1) that the defendant violated his constitutional or statutory rights, and (2) that the constitutional right was clearly established at the time of the alleged unlawful activity.” Swanson v. Town of Mountain View , 577 F.3d 1196, 1199 (10th Cir. 2009)

. In our review, “we need only find that the plaintiffs failed either requirement” to establish qualified immunity. Id. Because there are cases where we can more readily decide the law was not clearly established before reaching the more difficult question of whether there has been a constitutional violation, we may exercise discretion in deciding which prong to address first. See

Pearson , 555 U.S. at 236, 129 S.Ct. 808.

This is such a case. We therefore confine our analysis of qualified immunity to the second prong, inquiring only whether the law at the time of the incident was “sufficiently clear that a reasonable official would have understood that his conduct violated the right.” Currier v. Doran , 242 F.3d 905, 923 (10th Cir. 2001)

.

A right is clearly established when it is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Reichle v. Howards , ––– U.S. ––––, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012)

(internal quotation marks and alteration omitted). To make this determination, we consider “either if courts have previously ruled that materially similar conduct was unconstitutional, or if a general constitutional rule already identified in the decisional law [applies] with obvious clarity to the specific conduct at issue.” Buck v. City of Albuquerque , 549 F.3d 1269, 1290 (10th Cir. 2008)

(emphasis added). Usually, this requires either “a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Cordova v. City of Albuquerque , 816 F.3d 645, 658 (10th Cir. 2016) (quoting Clark v. Wilson , 625 F.3d 686, 690 (10th Cir. 2010) ).

But an earlier decision need not be “materially factually similar or identical to the present case; instead, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Thomas v. Kaven , 765 F.3d 1183, 1194 (10th Cir. 2014)

. We look to see if “existing precedent ... placed the statutory or constitutional question beyond debate.” Ashcroft v. al–Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). “The dispositive question is whether the violative nature of particular conduct is clearly established,” Mullenix v. Luna , ––– U.S. ––––, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam) (emphasis in original) (internal quotation marks omitted), so that “it would be clear to a reasonable officer that his conduct was...