Bleck v. City of Alamosa, Colorado et al

Filing 233

ORDER: re: 130 Defendants' Motion for Judgment on the Pleadings and for Summary Judgment 38 and Plaintiff's Motion for Summary Judgment Pursuant to Federal Rule of Civil Procedure 56. That judgment shall enter on behalf of defendant, The City of Alamosa, Colorado, and against plaintiff, The Estate of Steven Wayne Bleck, by Joanna Churchill, Personal Representative for Steven Wayne Bleck, deceased, on plaintiff's sole remaining cause of action against the City for failure to train; That the City is awarded its costs, to be taxed by the clerk of the court in the time and manner prescribed in Fed. R. Civ. P. 54(d) and D.C.COLO.LCivR 54.1. By Judge Robert E. Blackburn on 5/12/15. (kfinn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 10-cv-03177-REB-KMT
THE ESTATE OF STEVEN WAYNE BLECK, by Joanna Churchill, Personal
Representative for Steven Bleck, deceased,
Plaintiff,
vs.
CITY OF ALAMOSA, COLORADO,
Defendant.

ORDER
Blackburn, J.
This matter is before me on remand from the Tenth Circuit for further
consideration of the arguments raised originally in (1) Defendants’ Motion for
Judgment on the Pleadings and for Summary Judgment [#38],1 filed August 15,
2011; and (2) Plaintiff’s Motion for Summary Judgment Pursuant to Federal Rule
of Civil Procedure 56 [#130], filed January 20, 2012. The parties have submitted
supplemental briefs on the issues implicated by the Tenth Circuit’s remand order [##226
& 227]. Having considered the Tenth Circuit’s opinion, the arguments raised and
authorities cited in the original and supplemental briefs, and all relevant evidence
submitted in connection therewith, I find and conclude that defendant is entitled to
judgment as to plaintiff’s sole remaining claim for failure to train.

1
“[#38]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

I. JURISDICTION
I have jurisdiction over this matter pursuant to 28 U.S.C. § 1331 (federal
question).
II. STANDARD OF REVIEW
Both plaintiff and defendant have moved for summary judgment.2 Summary
judgment is proper when there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp.
v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute
is “genuine” if the issue could be resolved in favor of either party. Matsushita Electric
Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356,
89 L.Ed.2d 538 (1986); Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir.
1994). A fact is “material” if it might reasonably affect the outcome of the case.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d
202 (1986); Farthing, 39 F.3d at 1134.
A party who does not have the burden of proof at trial must show the absence of
a genuine fact issue. Concrete Works, Inc. v. City & County of Denver, 36 F.3d
1513, 1517 (10th Cir. 1994), cert. denied, 115 S.Ct. 1315 (1995). By contrast, a movant
who bears the burden of proof must submit evidence to establish every essential
element of its claim or affirmative defense. See In re Ribozyme Pharmaceuticals, Inc.

2

The mere fact that the parties have filed cross-motions for summary judgment does not
necessarily indicate that summary judgment is proper for either party. See Atlantic Richfield Co. v.
Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000); James Barlow Family Ltd.
Partnership v. David M. Munson, Inc., 132 F.3d 1316, 1319 (10th Cir. 1997). See also Buell Cabinet
Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979) (“Cross-motions for summary judgment are to be
treated separately; the denial of one does not require the grant of another.”).

2

Securities Litigation, 209 F.Supp.2d 1106, 1111 (D. Colo. 2002). In either case, once
the motion has been supported properly, the burden shifts to the nonmovant to show by
tendering depositions, affidavits, and other competent evidence that summary judgment
is not proper. Concrete Works, 36 F.3d at 1518. All the evidence must be viewed in
the light most favorable to the party opposing the motion. Simms v. Oklahoma ex rel
Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326
(10th Cir.), cert. denied, 120 S.Ct. 53 (1999). However, conclusory statements and
testimony based merely on conjecture or subjective belief are not competent summary
judgment evidence. Rice v. United States, 166 F.3d 1088, 1092 (10th Cir.), cert.
denied, 120 S.Ct. 334 (1999); Nutting v. RAM Southwest, Inc., 106 F.Supp.2d 1121,
1123 (D. Colo. 2000).
III. ANALYSIS
The facts of this case are well known to the parties and recited at length both in
this court’s prior order, see Bleck v. City of Alamosa, 839 F.Supp.2d 1149, 1151-52
(D. Colo. 2012), and the opinion of the Tenth Circuit on appeal, Estate of Bleck ex rel.
Churchill v. City of Alamosa, Colorado, 540 Fed. Appx. 866, 867-868 (10th Cir. Nov.
4, 2013). They therefore need not be repeated here, except in the context of
addressing the issues that remain for determination following remand.
The Tenth Circuit concluded, contrary to this court’s decision, that plaintiff,
Steven Bleck,3 was seized when Officer Martinez attempted to push Mr. Bleck down on

3

Although Mr. Bleck died while this case was pending on appeal, and the personal
representative of his estate was substituted as the appellant, see Estate of Bleck, 540 Fed. Appx. at 866
n.*, for convenience I nevertheless continue to refer herein to Mr. Bleck himself as the plaintiff. In
addition, although it appears that there was some suggestion at the appellate level that the substitution

3

the bed by going “hands on” without first reholstering his duty weapon. Although Officer
Martinez was found to have qualified immunity as to Mr. Bleck’s claims against him, the
case was remanded to consider Mr. Bleck’s claim for failure to train against the City of
Alamosa, which enjoys no such immunity from suit. See Starkey ex rel. A.B. v.
Boulder County Social Services, 569 F.3d 1244, 1263 n.4 (10th Cir. 2009). To prove
this claim, Mr. Bleck must establish “(1) that a municipal employee committed a
constitutional violation, and (2) that a municipal policy or custom was the moving force
behind the constitutional deprivation.” Estate of Bleck, 540 Fed. Appx. at 874 (citation
and internal quotation marks omitted). Because I conclude that Mr. Bleck can satisfy
neither of these elements, the City is entitled to judgment.
As to the first element, the question whether Officer Martinez committed a
constitutional violation is only partially answered by the Tenth Circuit’s determination
that Mr. Bleck was seized when “Officer Martinez intentionally accomplished the
termination of [his] freedom of movement through the tandem action of the hands-on
technique and the display of his gun.” Id. at 876. As the Tenth Circuit noted, “[t]hat
does not end the constitutional analysis, however. Then, the pivotal question becomes
whether the seizure was reasonable.” Id. (citation and internal quotation marks
omitted). See also Brower v. County of Inyo, 489 U.S. 593, 599, 109 S.Ct. 1378,
1382-83, 103 L.Ed.2d 628 (1989) (“‘Seizure’ alone is not enough for § 1983 liability; the
seizure must be ‘unreasonable.’”).

affected the scope of relief available, see id., any such issues have not been presented to me for
consideration and resolution.

4

“Claims of excessive force are analyzed under the objective reasonableness
standard of the Fourth Amendment.” Medina v. Cram, 252 F.3d 1124, 1131 (10th Cir.
2001). “Determining whether the force used to effect a particular seizure is ‘reasonable’
under the Fourth Amendment requires a careful balancing of the nature and quality of
the intrusion on the individual's Fourth Amendment interests against the countervailing
governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct.
1865, 1871, 104 L.Ed.2d 443 (1989) (citation and internal quotation marks omitted).
The ultimate question is “whether, from the perspective of a reasonable officer on the
scene, the totality of the circumstances justified the use of force.” Estate of Larsen ex
rel. Sturdivan v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008). This fact-intensive inquiry
is informed by a number of non-exclusive factors, including:
(1) whether the officers ordered the suspect to drop his
weapon, and the suspect's compliance with police
commands; (2) whether any hostile motions were made with
the weapon towards the officers; (3) the distance separating
the officers and the suspect; and (4) the manifest intentions
of the suspect.
Id. See also Graham, 109 S.Ct. at 1872 (relevant factors “includ[e] the severity of the
crime at issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or attempting to evade
arrest by flight”). In assessing these and all other relevant considerations, the court
must bear always in mind that “‘because police officers are often forced to make
split-second judgments – in circumstances that are tense, uncertain, and rapidly
evolving – about the amount of force that is necessary in a particular situation,’ the
reasonableness of the officer's belief as to the appropriate level of force should be
5

judged from that on-scene perspective.” Estate of Larsen, 511 F.3d at 1259-60
(quoting Saucier v. Katz, 533 U.S. 194, 205, 121 S.Ct. 2151, 2158, 150 L.Ed.2d 272
(2001)). See also Graham, 109 S.Ct. at 1872 (“The ‘reasonableness' of a particular
use of force must be judged from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.”).
Mr. Bleck argues that it was not objectively reasonable for Officer Martinez to
employ deadly force in connection with his seizure. This argument misses the mark,
however, because there is no evidence to suggest that Officer Martinez’s firing of the
weapon was anything other than accidental. A violation of the Fourth Amendment
presupposes intentional conduct – mere negligence is insufficient to make out a viable
constitutional claim. See Sevier v. City of Lawrence, Kansas, 60 F.3d 695, 699 n.7
(10th Cir. 1995). See also Scott v. Harris, 550 U.S. 372, 384 n.10, 127 S.Ct. 1769,
1778 n.10, 167 L.Ed.2d 686 (2007) (noting that “[c]ulpability is relevant, however, to the
reasonableness of the seizure”) (emphases in original). Thus, the proper focus is not
on the shooting itself, but rather on whether it was objectively unreasonable for Officer
Martinez to enter the room with his weapon drawn and/or to fail to reholster his gun prior
to going hands on. See Watson v. Bryant, 532 Fed. Appx. 453, 457-58 (5th Cir. Feb. 4,
2013); McCoy v. City of Monticelllo, 342 F.3d 842, 848-49 (8th Cir. 2003); Tallman v.
Elizabethtown Police Department, 167 Fed. Appx. 459, 464 (6th Cir. Jan. 23, 2006)
Pleasant v. Zamieski, 895 F.2d 272, 276 (6th Cir.), cert. denied, 111 S.Ct. 144 (1990);
Stamps v. Town of Framingham, 38 F.Supp.3d 146, 153-54 (D. Mass. 2014); Speight
v. Griggs, 13 F.Supp.3d 1298, 1321-22 (N.D. Ga. 2013), vacated in part on other

6

grounds, 579 Fed. Appx. 757 (11th Cir. Sept. 2, 2014).
I have little difficulty in concluding that Officer Martinez’s decision to enter the
room with his gun drawn was objectively reasonable. In analyzing this issue, the court
must consider whether the surrounding circumstances suggest that the officer
reasonably could have feared an immediate threat to his personal safety or the safety of
others. Estate of Larsen, 511 F.3d at 1260. Although officers were called to Mr.
Bleck’s hotel room on a welfare check, the information available to them was that Mr.
Bleck had been drinking and that he was armed and had threatened to “blow his head
off.” Whether these facts ultimately were borne out is irrelevant. See Graham, 109
S.Ct. at 1872. The court must account for “the practical difficulties of attempting to
assess the suspect's dangerousness,” Tennessee v. Garner, 471 U.S. 1, 20, 105 S.Ct.
1694, 1705. 85 L.Ed.2d 1 (1985), and remember that “[a] reasonable officer need not
await the glint of steel before taking self-protective action,” Estate of Larsen, 511 F.3d
at 1260 (citation and internal quotation marks omitted). From that perspective, it was
not objectively unreasonable for Officer Martinez to enter the room with his duty weapon
drawn.4
Although it is a closer question whether the failure to reholster the gun before
going hands on was reasonable, ultimately I find that no reasonable jury could conclude
otherwise. On the one hand, Mr. Bleck was not suspected of criminal activity and he
4

Mr. Bleck’s expert opines that the officers on the scene “had no information that Steven Bleck
was a threat to, or had made a threat to, anyone other than himself.” (Plf. Motion App., Aff. of Daniel
Montgomery ¶ 22 at 5 [#47-2], filed September 15, 2011.) This is a far cry from suggesting that it was
unreasonable for Officer Martinez to have his duty weapon drawn as he entered the room, and the model
standards to which Mr. Montgomery refers prescribe no such condition either. The fact that officers
reasonably believed that Mr. Bleck was armed justified them in having their weapons at the ready as they
entered the room, pending further clarification of Mr. Bleck’s intentions.

7

had not overtly or explicitly threatened the officers. Nevertheless, Officer Martinez’s
undisputed testimony is that, because Mr. Bleck’s back was to the door as officers
entered the room, he could not see Mr. Bleck’s hands, and Mr. Bleck did not respond to
an order to show his hands. Nor did Mr. Bleck respond to the officer’s directive to lie on
the floor, but instead may have attempted to stand, prompting Officer Martinez’s
decision to go hands on in an attempt to bring him under control.
The fact that Officer Martinez violated department policy in so doing without first
reholstering his duty weapon is not dispositive. “It is irrelevant that [the officer] may
have neglected to follow best practices by attempting to handcuff a suspect while
holding a gun, however tragic the result. The failure to use ‘proper procedure’ does not
prove excessive force.” Watson v. Bryant, 532 Fed. Appx. at 458. See also Smith v.
Freland, 954 F.2d 343, 347 (6th Cir.) (“Under § 1983, the issue is whether [the officer]
violated the Constitution, not whether he should be disciplined by the local police
force.”), cert. denied, 112 S.Ct. 1954 (1992). Instead, the relevant question is whether
any such failure to follow the procedure is itself of constitutional dimension, and that
question ultimately returns to a determination whether the officer’s actions were
reasonable in light of the situation in which he found himself and the totality of the
circumstances he faced.
Those circumstances included that Mr. Bleck was suicidal, intoxicated, and most
relevantly, armed. In addition, although not manifestly aggressive, Mr. Bleck had not
unequivocally surrendered and had failed to follow commands which would have
clarified whether he was armed. See Watson, 532 Fed. Appx. at 458; Tallman, 167

8

Fed. Appx. at 466; Reese v. Anderson, 926 F.2d 494, 501 (5th Cir. 1991); Pleasant,
895 F.2d at 276. Cf. Walker v. City of Orem, 451 F.3d 1139, 1160 (10th Cir. 2006)
(use of deadly force not reasonable where, inter alia, officer should have been able to
see that suspect was unarmed, and suspect was not resisting arrest); Stamps, 38
F.Supp.3d at 153 (use of force not reasonable where, inter alia, suspect cooperated
with police commands and officers had been specifically advised that suspect posed no
threat to their safety); Johnson v. City of Milwaukee, 41 F.Supp.2d 917, 924-26 (E.D.
Wis. 1999) (genuine dispute of material fact as to reasonableness of officer’s actions
existed where suspect had surrendered). Based on these circumstances, Officer
Martinez was not required to “await the glint of steel” before his decision to go hands on
could be considered reasonable. Estate of Larsen, 511 F.3d at 1260 (citation and
internal quotation marks omitted).
Of course, his decision to do so prior to reholstering his weapon admittedly was
ill-advised at best. Yet the court also is mindful that these actions all occurred within a
span of mere seconds, in cramped quarters, and in a tense and uncertain atmosphere.
Officer Martinez’s own safety – not to mention that of the other officers, other persons in
the vicinity, or indeed, Mr. Bleck himself – might have been jeopardized had he taken
the time to reholster his gun before reacting to Mr. Bleck’s perceived intransigence.
See Pleasant, 895 F.2d at 276-77 (although officer should have been aware that fleeing
suspect did not pose a threat, he “had little time to react” and “[h]ad he taken the time to
put his gun away, [the suspect] would have escaped”). Regardless whether Mr. Bleck
was only passively resisting – or indeed, simply had not heard the command – “no right

9

is guaranteed by federal law that one will be free from circumstances where he will be
endangered by the misinterpretation of his acts.” Young v. City of Killeen, Texas, 775
F.2d 1349, 1353 (5th Cir. 1985). Any mistake by Officer Martinez in reading the
situation, while regrettable, was not objectively unreasonable given the circumstances
then confronting him.
Nevertheless, even if I were to find that genuine disputes of material fact existed
as to the objective reasonableness of Officer Martinez’s conduct, Mr. Bleck has failed to
establish the other remaining element of his section 1983 claim – that a municipal policy
or custom was the moving force behind the constitutional deprivation.
Mr. Bleck alleges that the City was deliberately indifferent for allegedly failing to
train officers in procedures for dealing with mentally ill and/or suicidal suspects.
In order to prevail on a claim against a municipality for failure
to train its police officers in the use of force, a Plaintiff must
first prove the training was in fact inadequate, and then
satisfy the following requirements:
(1) the officers exceeded constitutional limitations on
the use of force; (2) the use of force arose under
circumstances that constitute a usual and recurring
situations with which police officers must deal; (3) the
inadequate training demonstrates a deliberate
indifference on the party of the city toward persons
with whom the police officers come into contact, and
(4) there is a direct causal link between the
constitutional deprivation and the inadequate training.
Carr v. Castle, 337 F.3d 1221, 1228 (10th Cir. 2003) (citation and internal quotation
marks omitted). However, Mr. Bleck has failed to offer evidence sufficient to create a
genuine dispute of material fact as to the adequacy of the training officers received, nor
has he established same on the issues of deliberate indifference and causation. The
10

City therefore is entitled to judgment in its favor.
It is axiomatic that there is no vicarious liability under section 1983, and thus a
municipality may not be held liable merely because one of its employees has inflicted an
injury. Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010), cert.
denied, 131 S.Ct. 3030 (2011). A municipality may be liable only when its own
unconstitutional or illegal policy or custom “is the moving force behind the injury
alleged.” Board of County Commissioners of Bryan County v. Brown, 520 U.S.
397, 404, 117 S.Ct. 1382, 1388, 137 L.Ed.2d 626 (1997). For this reason,
[p]laintiffs who seek to impose liability on local governments
under § 1983 must prove that “action pursuant to official
municipal policy” caused their injury. Official municipal policy
includes the decisions of a government's lawmakers, the
acts of its policymaking officials, and practices so persistent
and widespread as to practically have the force of law.
These are “action[s] for which the municipality is actually
responsible.”
Connick v. Thompson, – U.S. –, 131 S.Ct. 1350, 1359, 179 L.Ed.2d 417 (2011)
(internal citations omitted; alteration in original). Thus, “municipal liability under § 1983
attaches where – and only where – a deliberate choice to follow a course of action is
made from among various alternatives by city policymakers.” City of Canton, Ohio v.
Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 1205, 103 L.Ed.2d 412 (1989) (citation and
internal quotation marks omitted).
Given this requirement, “[a] municipality's culpability for a deprivation of rights is
at its most tenuous where a claim turns on a failure to train.” Connick, 131 S.Ct. at
1359. Nevertheless, “[i]n limited circumstances, a local government's decision not to
train certain employees about their legal duty to avoid violating citizens' rights may rise
11

to the level of an official government policy for purposes of § 1983.” Id. To recover
under this theory, it must be shown that the municipality was deliberately indifferent to
the need for more or better training such that “ failure to train reflects a ‘deliberate’ or
‘conscious’ choice by a municipality.” Canton, 109 S.Ct. at 1205.
To establish this element, Mr. Bleck must show that the City “has actual or
constructive notice that its action or failure to act [was] substantially certain to result in a
constitutional violation, and it consciously or deliberately choose[] to disregard the risk
of harm.” Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998). See also
Brown, 117 S.Ct. at 1391 (“‘[D]eliberate indifference’ is a stringent standard of fault,
requiring proof that a municipal actor disregarded a known or obvious consequence of
his action.”). “[A] city’s policy of inaction in light of notice that its program will cause
constitutional violations is the functional equivalent of a decision by the city itself to
violate the Constitution.” Connick, 131 S.Ct. at 1360 (citation and internal quotation
marks omitted). For this reason, proof of deliberate indifference generally requires
evidence showing a pattern of tortious conduct of which the municipality was or should
have been aware. See Brown, 117 S.Ct. at 1390; Barney, 143 F.3d at 1307. “Without
notice that a course of training is deficient in a particular respect, decisionmakers can
hardly be said to have deliberately chosen a training program that will cause violations
of constitutional rights.” Connick, 131 S.Ct. at 1360.
Mr. Bleck does not argue, much less attempt to establish by offer of evidence,
that such a pattern of prior incidents exists here. Instead, he suggests that this case
presents the exceptional circumstance in which deliberate indifference may be found

12

despite the absence of a pattern of prior unconstitutional behavior. See Barney, 143
F.3d at 1307-08. This class of cases, however, is exceedingly narrow, and liability will
be found only where “a violation of federal rights is a ‘highly predictable’ or ‘plainly
obvious’ consequence of a municipality's action or inaction, such as when a municipality
fails to train an employee in specific skills needed to handle recurring situations, thus
presenting an obvious potential for constitutional violations.” Id. (citing Brown, 117
S.Ct. at 1391).
As a general matter, the Supreme Court has cautioned specifically against
judicial micro-management in this area. “In virtually every instance where a person has
had his or her constitutional rights violated by a city employee, a § 1983 plaintiff will be
able to point to something the city ‘could have done’ to prevent the unfortunate
incident.” City of Canton, 109 S.Ct. a 1206. Thus,
showing merely that additional training would have been
helpful in making difficult decisions does not establish
municipal liability. Proving that an injury or accident could
have been avoided if an employee had had better or more
training, sufficient to equip him to avoid the particular
injury-causing conduct will not suffice.
Connick, 131 S.Ct. at 1363-64 (citation, internal quotation marks, and alterations
omitted). The Supreme Court has made clear that the single-incident exception is
premised on officers’ “utter lack of an ability to cope with constitutional situations,” and
thus “is concerned with the substance of the training, not the particular instructional
format.” Id. at 1363. It therefore is only when officers “have no knowledge at all of the
constitutional limits on the use of [] force” that the exception is potentially is viable. Id.
Despite these substantial barriers, Mr. Bleck suggests that this case presents
13

such an extraordinary instance because the City failed to specifically train officers in
dealing with the mentally ill. In response, the City has presented evidence regarding the
extensive training that both Alamosa Police Department (“APD”) officers generally and
Officer Martinez particularly received. This evidence demonstrates that Officer
Martinez, like all officers in the State of Colorado, is required to be certified under the
Police Officer Standards and Training (“POST”) Act. See §6-2.5-102 & § 24-31-301 et
seq., C.R.S. POST certification in turn requires successful completion of a course of
study at a basic law enforcement academy. The POST Basic Academy Training
Program currently requires 68 course hours in basic legal concepts, including arrest,
search, and seizure, as well as specific instruction on interacting with special
populations and “risk assessment response,” which covers interactions with the
mentally ill. See Post Manual, Appendix C, Basic Academic Training Program §§ I.A.2.
at C-1, II.A. at C-6 III.D. at C-19, & III.E. at C-20.5 Although Officer Martinez admits that
these specific requirements are somewhat different from those that pertained at the time
he was certified more than 20 years ago, his education included course work and
training in use of force, arrest procedures and control, search and seizure, and firearms
and other weapons training. (See Def. Supp. Br. App., Exh. A-25 at 9 [#226-4].)6
Officers who are new to the APD participate in a field training program (“FTO”)
which cover issues including arrest control, use of force, search and seizure, and use of
5

The POST Manual itself is available as a PDF file, a link to which is accessible from the POST
Manual FAQ page, available at http://www.coloradoattorneygeneral.gov/post_faq_page_0 (last accessed
May 4, 2015).
6

Prior to attending the basic training academy, Officer Martinez received an Associates Degree
in Applied Science, taking courses in criminal justice and law enforcement, covering, inter alia, issues of
constitutional law and arrest and control techniques. (Def. Supp. Br. App., Exh. A-26 at 10.)

14

firearms. Officer Martinez participated in a fourteen-week FTO program with the APD
when he was hired initially and has since served as an FTO instructor. (Id. at 10-11.)7
Thereafter, APD officers receive additional training throughout their careers.8 Such
training includes on-going firearms qualification, which includes arrest simulations and
shoot/don’t shoot scenarios, as well as control techniques and arrest control training.
(Id. at 8-9 & 16.) In addition,
throughout their career[s], officers are exposed to training
and on-the-job conditions regarding interacting with the
public, to include those persons with mental conditions or
who are otherwise impaired by drugs and/or alcohol. Formal
training is given in the Academy, and then again throughout
an officer's career and usually included within use of force,
arrest control and other such training.
(Id. at 16.)
To counter this evidence, Mr. Bleck points to deposition testimony from Officers
Martinez, Lockwood, and Cooper that they received no written training materials from
the APD addressing dealing with the mentally ill. (See Plf. Motion for Leave To File
Supp. to Plf. Resp (Doc. No. 47) App. Exh. A at 188 [#129-2], Exh. B at Exh. C. at 24

7

In addition, Officer Martinez taught at the Police Academy at the Trinidad State Junior College
from 2006 to 2010. Among various other relevant topics, Officer Martinez taught “problem-oriented
policing,” which dealt with issues relating to the ADA and interacting with the mentally ill. (Def. Supp. Br.
App., Exh. A-26 at 12.)
8

Although the City maintains that such training is mandatory and provided monthly (see Def.
Supp. Br. at 12), the evidence to which it cites does not plainly support that assertion, but instead refers
to other documents and discovery which, if included in the record at all, have not been plainly identified
for the court’s inspection. See Carbajal v. City and County of Denver, 2012 WL 592871 at * 2 (D. Colo.
Feb. 23, 2012) (“Judges are not like pigs, hunting for truffles buried in briefs.”) (quoting United States v.
Dunkel, 927 F.2d 955, 956 (7th Cir. 1991), aff’d, 502 Fed. Appx. 715 (10th Cit. Sept. 25, 2012), cert.
denied, 134 S.Ct. 103 (2013).

15

[#129-4]; Exh. D at 10-11 [#129-5].)9 This evidence is ambiguous at best, and I find and
conclude that it is insufficient as a matter of law to create a genuine dispute of material
fact sufficient to permit a reasonable jury to infer that APD officers in general or Officer
Martinez in particular did not receive any training on how to approach the mentally ill.
Instead, Mr. Bleck focuses primarily on APD’s General Order No. 02510 on use
of force, which he criticizes for not addressing interactions between officers and the
mentally ill. (See Plf. Original Resp. App., Exh. 5 at 13-20 [#47], filed September 15,
2011.) His reliance on this document is inapt, however, because his claim against the
City is for failure to train, not for maintenance of an unconstitutional written policy. The
General Order – a self-described set of “guidelines in the use of force and in the
reporting of the use of force” (id. at 13) – does not itself contemplate or provide for any
particular type of training. Moreover, despite whatever gaps maybe thought to exist
within the use of force policy specific to dealing with mentally ill or intoxicated persons,
nothing therein counters the City’s evidence that officers did in fact receive training

9

Mr. Bleck also suggests that Officer Martinez was never trained by the APD in how to approach
a mentally ill person. That assertion is based on the following testimony:
Q: Were you ever trained in how to approach a mentally ill person?
A: With possibly a weapon.
Q: Were you ever trained in how to approach that person – . . . by the
Alamosa Police Department?
....
A: No.
(Plf. Motion for Leave To File Supp. to Plf. Resp (Doc. No. 47) App. Exh. A at 251-252 [#129-2].) Even
if this evidence constituted more than a mere scintilla as to the issue whether Officer Martinez himself
received such specific training from the APD, nothing therein counters the City’s evidence that such
training was available within the realm of other relevant law enforcement training the APD offered. In
fact, Chief Jackson testified that, although there was no “formal outlined training” on dealing with mentally
ill or intoxicated persons, the APD worked frequently with the San Luis Valley Mental Health Center and
had included representatives of that organization in APD’s regular training sessions at various times,
such that APD officers had “talked about [the issue] many times.” (Id., Exh. B at 99-100 [#129-3].)

16

sufficient to equip them to engage and deal with the mentally ill. Nor has Mr. Bleck
made any other effort to demonstrate that the training APD officers do receive is so
lacking in relevant substance that a constitutional violation was the “obvious
consequence” of the failure to provide more specific training. Brown, 117 S.Ct. at
1391.10 See also Barney, 143 F.3d at 1308; Kyker v. City of Oklahoma City, 2006
WL 3333838 at *4 (W.D. Okla. Nov. 14, 2006).
More importantly, however – and regardless whether officers were trained to deal
with the mentally ill vel non – the most salient fact remains that Officer Martinez’s
decision to go hands on with his duty weapon still in his hand was directly contrary to
his training in the use of this control technique. (See Plf. Motion for Leave To File
Supp. to Plf. Resp (Doc. No. 47) App. Exh. A at 253-254 [#129-2], Exh. B at 210-211
[#129-3], Exh. D at 79.) It was this action that directly and proximately caused the
injuries Mr. Bleck suffered. The City was not the “moving force” behind this injury,
however, because the APD had trained its officers not to attempt hands on control while
still armed, regardless of the mental status of the person sought to be controlled. See
Brown, 117 S.Ct. at 1388.
In the absence of vicarious liability, the City may not be held liable based on a
single instance in which an officer acted contrary to the specific dictates of his training.
Thus, Mr. Bleck’s failure to train claim ultimately fails, and the City is entitled to
summary judgment.

10

This is not to say that prior training per se will insulate a municipality from liability for failure to
train. The training officers do receive itself may be constitutionally inadequate. See Hobart v. City of
Stafford, 784 F.Supp.2d 732, 754 (S.D. Tex. 2011). Mr. Bleck simply has failed to demonstrate that such
is the case here.

17

IV. ORDERS
THEREFORE, IT IS ORDERED as follows:
1. That judgment shall enter on behalf of defendant, The City of Alamosa,
Colorado, and against plaintiff, The Estate of Steven Wayne Bleck, by Joanna Churchill,
Personal Representative for Steven Wayne Bleck, deceased, on plaintiff’s sole
remaining cause of action against the City for failure to train;
2. That the City is awarded its costs, to be taxed by the clerk of the court in the
time and manner prescribed in Fed. R. Civ. P. 54(d) and D.C.COLO.LCivR 54.1; and
3. That this case is closed.
Dated May 12, 2015, at Denver, Colorado.
BY THE COURT:

18