Valverde v. Dodge

• Decision Date: 30 July 2020
• Docket Number: No. 19-1255,19-1255
• Parties: ESTATE OF Joseph VALVERDE, BY AND THROUGH Isabel PADILLA, as personal representative, Plaintiff - Appellee, v. Justin DODGE, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

967 F.3d 1049

ESTATE OF Joseph VALVERDE, BY AND THROUGH Isabel PADILLA, as personal representative, Plaintiff - Appellee,

v.Justin DODGE, Defendant - Appellant.

No. 19-1255

United States Court of Appeals, Tenth Circuit.

FILED July 30, 2020

Michele A. Horn (Wendy J. Shea and Conor D. Farley, with her on the briefs), Denver City Attorney's Office, Denver, Colorado, for Defendant-Appellant.

Eric Valenzuela (Dale K. Galipo, with him on the brief), Law Offices of Dale K. Galipo, Woodland Hills, California, for Plaintiff-Appellee.

Before HARTZ, MATHESON, and CARSON, Circuit Judges.

HARTZ, Circuit Judge.

Denver Police Sergeant Justin Dodge fatally shot Joseph Valverde after he saw Valverde pull out a gun as a SWAT team arrived to arrest him after an undercover drug transaction. Plaintiff Isabel Padilla, as personal representative of Valverde's estate, sued Dodge under 42 U.S.C. § 1983, asserting that Dodge used excessive force in violation of Valverde's Fourth Amendment rights. Dodge moved for summary judgment on the basis of qualified immunity, but the district court denied the motion. It said that (1) a reasonable jury could find that Valverde had discarded the gun and was in the process of surrendering before Dodge shot him and (2) the use of deadly force in that situation would violate clearly established law.

Dodge appeals. We have jurisdiction under 28 U.S.C. § 1291 and reverse the denial of summary judgment. Dodge is entitled to qualified immunity because he had only a split second to react when Valverde suddenly drew a gun. He did not violate the Fourth Amendment by deciding to shoot without waiting to see whether Valverde was merely taking the gun from his pocket to toss away rather than to shoot an officer. And to the extent that Plaintiff is arguing that Dodge should be liable because he recklessly created the situation that led to the apparent peril, Dodge is entitled to qualified immunity because he did not violate clearly established law.

I. BACKGROUND

A. The Shooting

On the afternoon of July 2, 2014, Valverde planned to buy two kilograms of cocaine at Overland Public Park in Denver, Colorado, from a man to whom he had previously sold guns (including AK-47s) unlawfully. Unbeknownst to Valverde, this man was undercover detective Fabian Rodriguez with the Adams County Sheriff's Office, who was working with the Metro Gang Task Force (MGTF), a multi-agency law-enforcement organization targeting gang members in the Denver area. During their last gun transaction Valverde had told Rodriguez that he was a cocaine dealer but that his drug supplier had disappeared, and he asked Rodriguez if he knew anyone who could provide cocaine. Rodriguez stated that he knew some people in the cocaine business, and they arranged for a purchase of two kilograms—setting in motion the July 2 meeting, at which the MGTF planned to arrest Valverde. (An operation in which an undercover officer sells contraband to a suspect is called various names, including reverse buy-bust.)

A Denver Police Department (DPD) SWAT unit was assigned as the arrest team. The unit typically deploys in high-risk situations, such as when the suspect is known to be violent, a higher-level drug dealer, or the target of a bust operation. Dodge was the team supervisor for the assigned SWAT unit, which included five other officers, one of whom was a K-9 officer with his dog.

The SWAT team met a few hours before the operation to go over the details of the tactical plan. The plan called for the SWAT team to enter the parking lot in an unmarked van and then move in quickly to take Valverde into custody once he attempted to buy the cocaine from Rodriguez and Rodriguez gave the bust signal. Dodge was to be the driver and would have a semi-automatic carbine and a "less-lethal" 40-millimeter gun available as an option. The K-9 officer's primary responsibility was the dog, also a less-lethal option. Three of the other four officers were armed with M4 carbines and one carried a pistol. These four officers were to deploy out of the van first, in two 2-man teams. They would move toward Valverde and pin him in from different sides, with the lead officers of each two-man team approaching with their weapons drawn. The tactical plan provided for the possibility that Valverde would decide to flee (the team would deploy the canine) or stay put in his vehicle (Dodge would block Valverde in with the SWAT van), or if the situation unfolded in some other unexpected way. The SWAT team was told during the briefing that Valverde had a gang affiliation, had previously been involved in illegal gun sales, and was known to carry a weapon and might be armed that day.

The reverse-buy-bust operation began as planned. Valverde arrived at the park's parking lot as expected and attempted to purchase the cocaine from undercover detective Rodriguez. Once Rodriguez gave the bust signal the SWAT team moved in to arrest Valverde, pulling up by the sidewalk in an unmarked white van. But less than seven seconds after the first SWAT team members exited the van, Valverde had been shot by Dodge and was on the ground.

The FBI conducted aerial aircraft surveillance of Valverde that recorded video footage, without sound, of the operation. That footage is included in the record. Also, Rodriguez was wired with a sound recording device during the transaction, and another detective prepared a recording that synchronized the audio and video recordings. That recording is also part of the record on appeal. To the extent that the synchronized video unmistakably establishes facts, we are to apply them, even if they are contrary to other evidence, such as testimony. See Thomas v. Durastanti , 607 F.3d 655, 659 (10th Cir. 2010) ("While a court considering a summary judgment motion based upon qualified immunity usually must adopt the plaintiff's version of the facts, that is not true to the extent that there is clear contrary video evidence of the incident at issue." (brackets, ellipses, and internal quotation marks omitted)).

Rodriguez had parked his SUV in a parking space perpendicular to the sidewalk bordering the park, with a vacant parking space between his car and the closest parked car. (Valverde had arrived with his girlfriend in a white pickup truck, and she parked it on the other side of the lot across from where the shooting occurred.) The two men were on the sidewalk bordering the vacant space. From their vantage point facing the parking lot, a sedan was in the parking space to their left and Rodriguez's SUV in the space to their right. The police van arrived from their right. Valverde said "who's that" to Rodriguez as the van drove toward them, and Rodriguez responded that he did not know. Dodge was not able to hear any of Valverde's conversation with Rodriguez because the SWAT team had real-time access only to the FBI's aerial video feed, not the audio from Rodriguez's wire. But Dodge could see that Valverde was looking at the van as it pulled up.

As the van slowed and came to a stop between the sedan and the SUV, the SWAT team officers began deploying. The following diagram shows the position of the vehicles, Valverde, and Rodriguez:

Two of the officers exited from the passenger-side sliding door, heading toward the far side of the sedan. The K-9 officer and his dog immediately followed them. The lead officer threw a flash-bang device while exiting. According to Dodge, the purpose of the noise and smoke of the flash bang was "to try to prevent shootings"— to "distract the suspect away from any ill intent or trying to obtain a weapon and then use that weapon ...." Aplt. App., Vol. I at 209; see also id. at 226 (testimony of SWAT team member Bollwahn) (purpose of flash bang is "to distract the intended person or persons to gain compliance from them, so they don't think about pulling a gun or shooting a gun or anything [else] dangerous"). The front two officers approached Valverde from his left, going around the passenger side of the sedan, while the K-9 officer and his dog trailed behind.

The other two-man team exited from the back of the van about a second after the first team, just as the flash bang went off and billowed white smoke. They approached from Valverde's right, beginning to circle around the driver's side of the SUV. Rodriguez had scrambled away from Valverde and thrown himself face down on the ground in front of the SUV.

About the same time, Dodge exited the van from the driver's side door (the side closest to the two parked cars and Valverde). He had armed himself with his semi-automatic carbine, as opposed to the less lethal 40-millimeter gun, because he believed Valverde would have a gun.

As Dodge exited, one or more of the other officers ordered Valverde, who was facing the van, to raise his hands. Valverde did not immediately comply; he appeared to flinch or jump slightly backward in reaction to the flash bang. Dodge headed directly toward Valverde, moving through the empty parking space between the parked SUV and sedan.

None of the officers identified themselves as police. The officers were wearing green SWAT uniforms rather than the typical blue DPD uniforms. Their vests did, however, have a DPD badge and the word "Police" across the chest.

Although officers surrounded Valverde and yelled at him to put his hands up and get down, he moved slightly forward and then slid to his left, in front of the right front tire of the parked sedan. He stood angled toward Dodge, who was next to the driver's side door of the sedan. Dodge said that he saw Valverde keep grabbing for something in his pocket or waistband area. The two-man team circling the sedan and Rodriguez, who had turned over on the ground so that he could face Valverde, also observed Valverde reaching for something in his shorts. Valverde then pulled out a gun with his right hand, at waist level. Directly facing Valverde from across the hood of the sedan, Dodge saw the muzzle of a gun. Rodriguez and the lead officer coming from the left, around the...