Guy v. Jorstad et al

Filing 130

ORDER granting 96 Defendant's Motion for Summary Judgment. Plaintiff's claims against Defendant Nathan Jorstad are dismissed. Entered by Judge Raymond P. Moore on 11/9/2015. (cpear)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore

Civil Action No. 12-cv-01249-RM-KMT
KATHRYN GUY,
as mother, next of kin and executor of the estate of James Guy, deceased,
Plaintiff,
v.
NATHAN JORSTAD,
Defendant.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I.

INTRODUCTION

This matter arises from a police shooting the occurred at approximately 8:12 am on April
22, 2011, which Plaintiff alleges resulted in “deprivation under color of law, of Plaintiff’s rights
under the 4th and 5th amendments to the United States Constitution and for tortus [sic] behavior
under Colorado State Law.” (ECF No. 33, p.1, ¶ 2;pp.4-5). Plaintiff Kathryn Guy is “the
mother, next of kin and executor of the estate of James William Guy, deceased.” (ECF No. 33,
p.2, ¶ 5).
Defendant, Nathan Jorstad (Defendant) is an officer of the Colorado Springs Police
Department (CSPD) and is being sued for his actions “undertaken in the regular course of his
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employment . . . .”, which resulted in the death of James William Guy (Decedent). (ECF No. 33,
p.2, ¶ 6; pp. 4-5). Kathryn Guy (Plaintiff) seeks compensatory damages and attorney fees, costs
and funeral and burial expenses. (ECF No. 33, p.8).
Pursuant to Fed.R.Civ.P. 56, Defendant moves for summary judgment and dismissal of
Plaintiff’s claims against him. (ECF No. 96). Defendant argues that: (1) Plaintiff has failed to
comply with this court’s Civil Practice Standards, Section IV.B.2.b, despite the court’s invitation
to do so; (2) there is no genuine dispute as to any material fact and (3) Defendant’s use of force
was reasonable as a matter of law and he is therefore entitled to qualified immunity from suit.
(ECF Nos. 96; 116).
II
A.

FACTUAL BACKGROUND

Undisputed Facts

Plaintiff failed to file a separate statement disputing Defendant’s material facts despite
this court’s explicit invitation to do so. (ECF No.115). After careful review of the entire record,
the court considers the following to be undisputed facts.
Decedent’s next door neighbor located at 1714 Auburn Drive, called Colorado Springs
Police (CSPD), early on the morning of April 22, 2011 1, to report that the Decedent was firing
rounds from a handgun from his back yard at 1718 Auburn Drive. (ECF Nos. 96, p.2; 97, pp.12; 97-4, p.1). This address is located in a densely occupied residential neighborhood. (ECF Nos.
97-3, p.2; 97-6). Officer Jeremy Tidwell was dispatched as a result of that call. (ECF No. 97,
pp1-2; ECF Nos. 97-1, p.2; 97-2, p.4; 97-5, p.2).

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The entire incident occurred within a total of approximately 24 minutes (from 7:48 am to 8:12 am). See e.g., (ECF
Nos. 97, p.1; 97-2, p.7).

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That same morning CSPD Officers Farrow and Jorstad (Defendant) were working in
motorcycle traffic enforcement at a location near the neighborhood from which the incident was
reported. (ECF No. 96; ECF Nos.97, p.1; 97-1, p.1; 97-2, pp.2-3; 97-4). They heard the call for
cover and responded along with the dispatched officer. (ECF Nos. 97-1, pp.2-4; 97-4, p.1; ECF
No. 110, Ex.A, pp.8-9).
While on their way, the officers received further notice from the dispatcher that another
party had called in from the neighborhood and reported that seven shots had been fired. (ECF
No. 97-4, p.1). The dispatcher also relayed to the responding officers that last year there had
been a T.E.U 2. incident at the 1718 Auburn Drive address. (ECF No. 97-3, pp.2-3).
The officers met at the corner of the street to develop a plan before approaching the
address. (ECF Nos. 97-1, pp.3-5; 97-3, p.3; 97-4, pp.1-2; 97-5, p.4). While getting back to their
vehicles to approach the suspect house, Officer Tidwell reported to dispatch (at approximately
8:03 am), that he heard two more shots fired. (ECF No.97-4, p.2; 97-5, p.4). At this time the
neighborhood had not been evacuated. (ECF Nos. 97, p.5; 97-3, p.3).
The three officers parked their vehicles south of 1714 Auburn Drive and approached
1718 Auburn Drive on foot. (ECF No. 97-1, p.5; 97-2, pp. 6-7; 97-5, pp. 4-5). Officer Farrow
requested and received a description of the suspect shooter. (ECF No. 97-4, p.2). As the officers
reached the front yard of 1714 Auburn Drive they heard more gunshots coming from the
backyard of 1718 Auburn Drive. (ECF No. 97-1, p.5; 97-2, p.8; 97-4, p.3; 97-5, p.8).
The six-foot privacy fence and shed that occupies the space between the 1714 and 1718
Auburn Drive houses obstructed the officers’ view of the 1718 Auburn Drive backyard. (ECF
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T.E.U. refers to the Tactical Enforcement Unit which is a special weapons and tactics (SWAT) team used in highrisk circumstances. (ECF Nos. 97-3, p.3; 97-4, p.2).

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No.97-1, p.6; 97-2, p.9; 97-7; 97-8, p.1). Officer Farrow moved to the 1718 Auburn Drive’s
garage where, unable to see anyone through the garage windows, he determined he needed to go
around the northeast corner of 1718 Auburn Drive to neighboring 1722 Auburn Drive in order to
view the suspected shooter. (ECF No. 97-1, pp.9-10; 97-2, p.11; 97-5, p.6; 97-7).
Upon climbing onto the fender of a boat parked at 1722 Auburn Drive, Officer Farrow
was able to view the Decedent stumbling about in an intoxicated manner in the 1718 Auburn
Drive backyard. Officer Tidwell stayed at the front of 1714 Auburn Drive behind the tree near
the property line to control onlookers while the Defendant entered the reporting party’s home at
1714 Auburn Drive. (ECF No. 97-1, pp.9-12; 97-3, p.4; 97-5, pp.6-7).
After instructing the reporting party to sequester herself and her dogs in an interior room
with the door closed, Defendant looked out the kitchen window of 1714 Auburn Drive, and saw
the Decedent sitting at a table in his backyard. (ECF No. 97-1, p.12). Defendant observed
Decedent put his gun within arm’s reach and then hunch over and appear to re-load the
magazine. (ECF Nos. 97-1, pp.12-14; 97-4, p.4; 110, p.2). At this time, Decedent’s gun was
empty and not in a firing position. Id.
Defendant radioed his fellow officers that he thought the Decedent was re-loading and
that the reporting party had disclosed that she believed the Decedent was shooting straight ahead
(to the west), rather than in the air. (ECF No. 97-4, p.4). Defendant asked Officer Farrow if he
“had eyes on also?” (ECF Nos.97, p.13; 97-4, p.4). Officer Farrow reported that he did and that
he was in the 1722 Auburn Drive backyard behind cover. Id. Defendant disclosed his position
at the 1714 Auburn Drive kitchen window to Officer Farrow and stated that he believed they
were in a crossfire position. (ECF Nos. 97, p.14; 97-4, p.4). Officer Farrow did not disagree.

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Id. Defendant then told Officer Farrow that he was “going to try to position myself so that . . .
fired shots would be going toward the suspect house.” (ECF No.97-4, p.4). Officer Farrow
“copie[d].” Id.
Defendant was in the reporting party’s house for approximately ninety seconds before
exiting the kitchen to crouch behind the wooden fence separating the two properties. (ECF Nos.
110, pp.2-3; 116, p.2). Within seconds of Defendant exiting the kitchen, his radio received a
loud, audible transmission. (ECF Nos. 97, p.15; 97-1, p.20).
Immediately after the transmission, Defendant saw (through the fence slats), the
Decedent stand up, grab his gun and walk toward the sound of the radio transmission. (ECF
Nos. 97, p.16; 97-1, pp.20-21). Defendant did not announce his presence or issue any commands
or warnings to the Decedent. (ECF Nos. 97, p.17; 97-1, p.24; 97-3, p.7; 110, pp.2-3).
Both Defendant and Officer Farrow had their guns raised and pointed at the Decedent as
he walked approximately six feet from the table toward the fence behind which Defendant
crouched. (ECF Nos. 97, pp.18-19; 97-1, p.20; 97-2, p.14; 97-3, p.8). Decedent raised his gun
to a level position pointing it toward the direction of the radio transmission while slowly
scanning it horizontally in a one to two foot arch. Id. Decedent was not facing Defendant when
Decedent raised his gun. (ECF Nos. 110, pp.3-4; 116, p.2).
Defendant aimed at the center mass of Decedent and fired a single shot through the fence.
(ECF Nos. 97, p.19; 97-1, pp.20, 24-25). Officer Farrow saw the Decedent immediately fall to
the ground and mistakenly radioed dispatch that the Decedent had shot himself at 8:12 am. (ECF
Nos. 97, p.20; 97-1, pp.24-25; 97-2, p.16; 97-4, p.4). Immediately after firing the single shot,

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Defendant radioed that shots were fired and the “suspect down; still alive.” (ECF 97-4, p.4).
Medical support was dispatched immediately. Id.
Later, Detective Gysin’s examination of the 1718 Auburn Drive back yard located 18
expended .40 caliber cartridge casings and one .40 caliber Springfield Armory pistol. (ECF Nos.
97, p.20; 97-9, p.2). He also observed three defects, one in a tree and two in the fence
surrounding 1718 Auburn Drive, consistent with fresh projectile (bullet) impact; the defects’
locations indicated that they were fired at an approximately horizontal angle from within the
1718 Auburn Drive backyard. (ECF Nos. 97, pp.20-21; 97-9, p.2).
III.

LEGAL STANDARD

Summary judgment is appropriate only if there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569
(10th Cir. 1994); Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). Whether
there is a genuine dispute as to a material fact depends upon whether the evidence presents a
sufficient disagreement to require submission to a jury or conversely, is so one-sided that one
party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49 (1986);
Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Zwygart v. Board of County
Comm’rs, 483 F.3d 1086, 1090 (10th Cir. 2007).
A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is
“genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable party
could return a verdict for either party. Anderson, 477 U.S. at 248. The court must resolve
factual ambiguities against the moving party, thus favoring the right to a trial. Houston v. Nat=l
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General Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987); Quaker State Mini-Lube, Inc. v. Fireman=s
Fund Ins. Co., 52 F.3d 1522, 1527 (10th Cir. 1995).
IV.

DISCUSSION

Plaintiff in her Amended Complaint alleges that Defendant violated her Fourth
Amendment rights and Colorado State law when he “intentionally, negligently and with
complete and deliberate indifference . . .us[ed] a degree of force that was unreasonable under the
circumstances and in violation of [Decedent’s] right to be free from unreasonable seizures under
the 4th Amendment.” (ECF No. 33, pp.1, 6). Defendant moves for summary judgment arguing
that he is entitled to qualified immunity against plaintiff’s excessive force claim because his use
of deadly force did not violate clearly established law. (ECF No. 96, p.4).
A.

Officer Liability:

Qualified immunity shields public agents not only from liability at trial, but also from the
burdens associated with preparing for trial. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). This
protection enables governmental officials to act in their official capacities without fear of
unwarranted litigation. Davis v. Scherer, 468 U.S. 183, 195 (1984). Thus, the question of
whether qualified immunity protects a particular defendant is properly ruled on well in advance
of trial. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1986).
When a defendant asserts a qualified immunity defense, the burden of proof shifts to the
plaintiff who must establish that the defendant's actions violated (1) a constitutional or statutory
right that, (2) was clearly established. Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir.
1995); Scull v. New Mexico, 236 F.3d 588, 595 (10th Cir. 2000). In determining whether the
right was clearly established, the court assesses the objective legal reasonableness of the action at
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the time of the alleged violation and asks whether “the right [was] sufficiently clear that a
reasonable officer would understand that what he is doing violates that right.” Wilson v. Layne,
526 U.S. 603, 615 (1999).
Summary judgment based on qualified immunity is appropriate if the law did not put the
officer on notice that his conduct would be clearly unlawful or if the plaintiff fails to satisfy
either part of the two-part inquiry. Albright, 51 F.3d at 1535. If the plaintiff does establish a
clearly established right was violated then the burden shifts to the defendant, who must prove
that no genuine issues of material fact exist so he or she is entitled to judgment as a matter of
law. Id. In other words, although the court reviews the evidence in the light most favorable to
the nonmoving party, the record must clearly demonstrate that the plaintiff has satisfied his or
her two-part burden or, the defendant is entitled to qualified immunity.” Medina v. Cram, 252
F.3d 1124, 1128 (10th Cir. 2000)(quotation omitted).
B. Fourth Amendment Excessive Force Claim:
It is well established that excessive force claims are subject to the Fourth Amendment’s
reasonableness requirement. Graham v. Conner, 490 U.S. 386, 395 (1980). In this instance it is
undisputed that in firing the shot that killed the Decedent, the Defendant used deadly force 3 and
thus a Fourth Amendment seizure occurred.
In evaluating an excessive force claim particularly in the context of use of deadly force,
courts must consider the totality of the circumstances since not all use of deadly force is
unconstitutional. Saucier v. Katz, 533 U.S. 194, 205 (2001). The objective reasonableness of an
officer’s use of force must be assessed considering the totality of the specific circumstances and
3

Deadly force is that which the actor uses with the purpose of causing or that he knows to create a substantial risk
of causing, death or serious bodily harm i.e., purposely firing a firearm in the direction of another person constitutes
deadly force. Ryder v. City of Topeka, 814 F.2d 1412, 1416 n.11 (10th Cir.1987)(approving Model Penal Code
definition).

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with the understanding that “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.” Graham, 490 U.S. at 396-97.
The court must also analyze whether the officer’s own reckless or deliberate conduct
during the seizure unreasonably created the need to use such force. Sevier v. City of Lawrence,
60 F.3d 695, 699 (10th Cir. 1995)(following Graham, 490 U.S. at 395). In doing so only those
events immediately connected with the actual seizure are considered. Sevier, 60 F.3d at 699. An
officer’s negligent actions precipitating a confrontation are not actionable. Daniels v. Williams,
474 U.S. 327, 333 (1986)(“injuries inflicted by governmental negligence are not addressed by
the United States Constitution . . .”).
In assessing the degree of threat facing officers, the court considers the following nonexclusive factors: (1) whether the officers ordered the suspect to drop his weapon and whether
the suspect complied with that order; (2) whether any hostile motions were made with the
weapon toward the officer; (3) the distance between the officer and the suspect; and (4) the
manifest intentions of the suspect. Estate of Larsen v. Murr, 511 F.3d 1255, 1260 (10th Cir.
2008).
There is no dispute that the Defendant did not give a force warning or identify himself to
the Decedent before the application of force occurred. Nor is there any dispute that Defendant
was in the kitchen of 1714 Auburn Drive for approximately 90 seconds during which time he
intermittently looked through a closed window which was partially obscured by a blind.
Similarly it is undisputed that Defendant had been alerted by dispatch that a T.E.U./Swat Team
had been dispatched to 1718 Auburn Drive on a previous occasion. And it is undisputed that the

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Decedent had fired his gun multiple times sometimes in a horizontal direction, endangering his
immediate neighbors; that he was staggering and appeared drunk; appeared to be reloading the
gun’s magazine just prior to hearing the Defendant’s radio transmission, that upon hearing the
transmission, he immediately picked up his gun, and advanced toward that sound while leveling
his gun and scanning it back and forth horizontally.
In the totality of these circumstances I find that a reasonable officer would in this
instance, have probable cause to believe that the Decedent was an imminent threat to both the
officer observing him and to his neighbors engaged in their routine early morning activities. The
use of deadly force was therefore both reasonable and constitutional.
Even assuming that deadly force was necessary, I must still consider the question posed
by plaintiff whether the Defendant’s behavior in failing to identify himself to the Decedent
before exiting the 1714 Auburn Drive kitchen, coupled with his lack of a force warning was not
only inconsistent with CSPD policy but reckless. (ECF No. 110, pp.2-3). Plaintiff argues that in
the ninety seconds in which Defendant was in the neighboring kitchen, he should have opened
the kitchen window and announced his presence to give the Decedent a chance to drop his
weapon. Id. Plaintiff further contends that Defendant’s decision to leave the relative safety of
the kitchen to crouch behind the wooden fence was deliberate and reckless. Id. However
plaintiff does not support these allegations with any admissible evidence of either specific facts
or opinion. She instead relies heavily on an unsworn expert report and unauthenticated
documents conventionally filed on a flash drive – all filed without any supporting affidavits.
(ECF No.111).

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Defendant responds that plaintiff’s lack of a separately filed dispute to any material facts
together with her reliance on incompetent evidence (the unsworn report and other
unauthenticated documents), are fatal to her claim against the Defendant. (ECF No.116, pp.1-4).
Defendant also asserts that for the following seven reasons, his decision not to issue a pre-force
warning or command from the 1714 Auburn Drive kitchen was objectively reasonable and not
reckless. (ECF No.116, pp.5-6).
First, Defendant states that during his 90 seconds in the kitchen he was collecting
information regarding the Decedent’s position and actions, ascertaining his fellow officer’s
whereabouts; securing the safety of the neighboring reporting party and communicating with his
fellow officers. Id. He did not fire his gun while in the kitchen and nothing about his brief
presence in the kitchen later caused Decedent to pick up his gun and walk toward the radio’s
sound with his gun raised, so Defendant’s time in the kitchen is not immediately connected to his
later application of deadly force . (ECF No. 116, p.6).
Second, Defendant did not believe that the Decedent could hear anything he might say
through the closed kitchen window. Id. While in the kitchen, Defendant observed that Decedent
was within arm’s reach of his gun. Id.
Third, Defendant believed that if he alerted the Decedent to the police presence and
Decedent began firing again, the surrounding houses would provide only concealment not cover 4
so that the neighbors and he would be endangered. (ECF No. 116, pp.6-7).

4

Defendant explained (and plaintiff did not dispute this definition) that cover is used to describe something that will
stop bullets whereas concealment is something that merely obscures/hides your position. (ECF Nos.97, p.10; 97-1,
p.19).

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Fourth, Defendant, upon learning of Officer Tidwell’s location, was concerned that they
were in a dangerous crossfire situation. (ECF No. 116, p.7).
Fifth, Defendant argues, that even ignoring those safety concerns, he would not have
been able to safely respond to any shooting that might occur in response to a warning because in
order to open the window he would have to raise the blinds to unlock and slide the window open
which would mean he would not have control of his weapon. Id.
Sixth, Defendant notes that the Decedent was not yet contained on the west side of his
yard and so could have fled into the neighborhood in response to a warning thereby further
endangering the neighbors. Id.
Finally, Defendant did not know if there was anyone else inside 1718 Auburn Drive who
might also be armed and ready to open fire upon a police warning. (ECF No. 116, pp.7-8).
In this instance, Defendant’s actions just prior his “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.”
Graham 490 U.S. at 396. It is well established that, “so long as a reasonable officer could have
believed his conduct was justified, a plaintiff cannot avoid summary judgment by simply
producing an expert’s report that an officer’s behavior leading up to the deadly confrontation was
imprudent, inappropriate or even reckless.” City and County of San Francisco, Calif. v.
Sheehan, 135 S.Ct. 1765, 1777(quotation omitted). In the face of an imminent threat, a warning
is not inevitably required even before the use of deadly force. Thompson v. Salt Lake County,
584 F.3d 1304, 1321 (10th Cir. 2009).
To be imminent, the threat must be more than a mere possibility. Cordova v. Aragon,
569 F.3d 1183, 1190 (10th Cir. 2009). The undisputed facts in this instance are that the
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neighborhood had not been evacuated; that the Decedent was intoxicated; that Defendant
believed (and later investigation confirmed), that the Decedent had fired his gun in a level or
horizontal trajectory rather than simply up in the air; and that upon hearing the transmission of a
police radio, the Decedent did not leave his weapon on the table and walk away from it to
investigate but rather, immediately picked up his gun (the magazine of which he had previously
appeared to re-load), and advanced toward the area where he heard the Defendant’s radio
transmission.
While doing so the Decedent moved his gun back and forth in a horizontal fashion
leading the Defendant to reasonably believe the Decedent was scanning for a target and therefore
making a hostile motion at a close range. A reasonable officer in the Defendant’s position would
therefore have feared not only for his own life but that of the Decedent’s neighbors and have
believed the threat posed to be actual and imminent.
Therefore while Decedent James Guy’s death is a regrettable tragedy, given Plaintiff’s
lack of competent support for her assertion that Defendant’s actions were reckless, the absence
of any argument or evidence that raises a genuine issue of fact regarding that claim, and after
careful consideration of the volatile situation confronting Defendant, I find that Defendant had
sufficient reason to believe he used the amount of force necessary in this particular situation.
Graham, 490 U.S. at 396-97, see also Estate of Larsen, 511 F.3d at 1260 (“reasonable officer
need not await the glint of steel before taking self-protective action; by then, it is often . . . too
late . . . .”)(quotation omitted).

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Finally, Plaintiff’s claim based on violations of state law or police procedures is not
actionable under Section 1983. Romero v. Bd. of County Comm’rs, 60 F.3d 702, 705 (10th Cir.
1995)(violations of state law and police procedure generally do not give rise to a §1983 claim).
Considering the totality of the circumstances and undisputed facts in this matter, I
therefore find that a reasonable officer would have had probable cause to think there was an
immediate threat of serious physical harm to him and/or others. Under the proscribed qualified
immunity analysis I find that Plaintiff has failed to meet her initial burden and Defendant is
entitled to qualified immunity from all liability in this matter.
V. CONCLUSION
Based on the foregoing, Plaintiff’s claims against Defendant Nathan Jorstad are
dismissed. Defendant’s Motion for Summary Judgment on Plaintiff ‘s claims against Defendant
Jorstad (ECF No.96), is GRANTED.
IT IS SO ORDERED
DATED this 9th day of November, 2015.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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