Morris v. Opsahl et al
MEMORANDUM OPINION AND ORDER: Defendant Sheriff of Summit County's Motion for Summary Judgment 32 is granted. The Clerk will enter judgment dismissing the Sheriff from this civil action, by Judge Richard P. Matsch on 2/21/2014. (rpmcd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Richard P. Matsch
Civil Action No. 12-cv-2134-RPM
DEPUTY SHERIFF NATHAN OPSAHL, in his individual capacity; and
SHERIFF OF SUMMIT COUNTY, COLORADO, in his official capacity,
MEMORANDUM OPINION AND ORDER
Plaintiff Darwin Morris was seriously injured on April 26, 2011 when a police canine
under Defendant Nathan Opsahl’s control bit Morris’ neck. Opsahl is a Deputy Sheriff in
Summit County; he has been sued in his individual capacity. Morris has also sued Opsahl’s
employer, the Sheriff of Summit County (“the Sheriff”), in his official capacity. Morris
alleges that the Sheriff is liable because the Sheriff’s deliberately indifferent policies,
training, and customs concerning the use of police canines, as well as his ratification of
Opsahl’s conduct, caused Morris’ injuries. The Sheriff has moved for summary judgment,
asserting that municipal liability does not attach here.
The Sheriff treats the allegations in this paragraph as true for the purposes of this Motion.
Morris alleges that on the evening of April 26, 2011, Summit County Communications
received a call of a burglary and assault at a residence in Silverthorne. The culprits were
reported as armed and fleeing on foot. Four law enforcement officers, including Opsahl,
were dispatched to investigate; Opsahl took the lead along with his German Shepherd K-9
Unit dog, “Bobby,” whom Opsahl commanded to engage in a track. Bobby was on a 30-foot
leash. Bobby led the officers to a car parked a short distance away from the residence.
Three men were inside, one of whom was Morris. The officers drew their weapons and
ordered the men out of the vehicle. Morris then exited the car with his hands in the air.
Opsahl ordered Morris to get down on the ground. Morris got on his knees and was reaching
his hands out to prostrate himself, at which point Bobby charged Morris and sunk his teeth
into Morris’ neck.1 Bobby continued to bite Morris’ neck even though Opsahl used a release
command twice. In trying to get control of Bobby, Opsahl accidentally discharged his
firearm into the ground; the bullet did not strike anyone. Morris was then taken to the
hospital, where he was treated for severe neck injuries. He was hospitalized from April 27
through May 11, 2011.
The following facts are material and not in genuine dispute. Following the incident with
Morris, Summit County Sheriff John Minor asked the District Attorney with jurisdiction over
Summit County to review the incident and placed Opsahl on paid administrative leave until
the completion of that review. [See Doc. 37, Ex. 15 at 5 (restricted).] Following his
investigation, the District Attorney determined that Opsahl used reasonable and appropriate
force in deploying Bobby, and declined to file charges against Opsahl. [See Doc. 32, Ex. G.]
The Sheriff did not conduct an internal affairs investigation into Opsahl’s use of Bobby,
though he did assign Captain Jaime FitzSimons to investigate Opsahl’s accidental discharge
The parties dispute whether Bobby bit Morris because Opsahl released Bobby on a track and failed to give a
countermanding order for Bobby not to bite; or because Opsahl commanded Bobby to attack Morris once the track
ended when they came upon the car.
of his firearm. FitzSimons concluded that although Opsahl’s discharge was negligent, he did
not violate Sheriff’s policy.
[See Doc. 37, Ex. 15 at 15-16 (restricted).]
recommended that Opsahl attend a 4-hour remedial tactical canine deployment training class
[id. at 16], which included: assessing whether a canine deployment complies with the law
and applicable policy; developing a tactical plan with other officers before deploying a
canine; and training Bobby to work around gunfire and other distractions [Doc. 37, Ex. 16 at
On July 29, 2011, the Sheriff gave Opsahl a written warning and required him to
attend the class. [See id. at 17.]
Two Sheriff’s Department policies are relevant to Morris’ municipal liability claim. The
Sheriff’s “505 Use of Force” policy (“Policy 505”) provides:
VI. Use of Force:
A. Law enforcement situations are dynamic, rapidly evolving, and unpredictable. The
Officer permits deputies to use any method they may choose to defend themselves or
another person or affect an arrest or reasonably believed by the deputy, given the facts
and circumstances known at the time, to be the amount of force necessary. Deputies shall
not use more force than is reasonably necessary to subdue and apprehend a suspect.
Appropriate medical attention shall be rendered following the use of physical force,
chemical agents, impact weapons, less-lethal weapons and deadly weapons.
B. A deputy is justified in using reasonable and appropriate physical force upon another
person when and to the extent that he/she reasonably believes it necessary:
1. To effect an arrest, detain or to prevent the escape from custody of an
arrested person, unless the deputy knows that the arrest is unauthorized, or
2. To defend the deputy or a third person from what he/she reasonably believes
to be the use of imminent use of physical force while effecting or attempting to
effect such as arrest, or while preventing or attempting to prevent such an
escape. (CRS 13-1-707)
[Doc. 32, Ex. B at 2, § VI.A.-B.]
Policy 505 identifies and categorizes different levels of force. “Artificial Incapacitators”
such as chemical agents and stun guns are the lower level of force.
Police dogs are
considered “Intermediate Weapons” along with batons, improvised weapons, and vascular
neck restraints. “Deadly Force” is naturally the highest level. [See id. at 3, § VI.C.]
Policy 505 establishes reporting requirements related to the use of force [see id. at 3,
§VI.D.] and the use of excessive force [see id. §VI.E.].2 If an officer witnesses the use of
excessive force by another officer, the witnessing officer must report the incident
immediately to his/her supervisor and write a memorandum within ten days describing the
use of force and the attending circumstances. The supervisor receiving the excessive force
report and memorandum then initiates a review of the incident. Failure to report excessive
force is a class-one misdemeanor and subjects the officer to administrative sanctions. [See
id. at §VI.E.1-3.]
The Sheriff’s “935 Canine Program” policy (“Policy 935”) requires police canines to be
certified by an independent trainer and undergo initial training of up to 14 weeks and then
have routine maintenance training thereafter. [See Doc. 32, Ex. C at 2, § III.E.] Consistent
with that policy, Bobby was initially trained for 14 weeks at Von Liche Kennels in Indiana,
trains roughly 15-20 hours per month with Opsahl, and is re-certified on a yearly basis by
state and national certification organizations. The other canine in Summit County, Tommy,
who is handled by Sergeant Brian Smith, the Department’s K-9 Supervisor, receives
equivalent training. Opsahl received initial K-9 training in the police academy and then
attended 40 hours of K-9 SWAT school in 2009. He was certified as a canine handler by the
Colorado Canine Police Association in April 2011. Plaintiff’s expert on police practices and
standards, Ernest Burwell, acknowledged that Opsahl was trained that it is impermissible to
“Force” is defined under the Policy as “[a]ny action taken to alter, impede, disrupt, or stop the actions of another.”
“Excessive Force” means “[p]hysical force which exceeds the degree of physical force permitted pursuant to section
18-1-707 to a person who has been rendered incapable of resisting arrest.”
use force on a fully compliant suspect. [See Doc. 32 at 7 (quoting Burwell Dep., Ex. D at
Policy 935 explicitly identifies the circumstances in which canines may be used, as
G. Summit County canines shall not be deployed off-leash to apprehend persons
except when the handler has probable cause to believe that one of the following
circumstances is present:
1. The suspect is actively resisting arrest;
2. The canine is being assaulted;
3. A person is attempting to evade arrest by flight, who is suspected of a
felony or of a misdemeanor when the misdemeanor offense involves an act or
threatened act of violence; or
4. To prevent any person from assaulting the canine handler, another policy
officer, deputy, or citizen.
I. When determining whether to deploy a canine, the canine handler shall consider the
following three criteria:
1. The severity of the crime involved;
2. Whether the suspect poses an immediate threat to the safety of law
enforcement or citizens; and
3. Whether the suspect is actively resisting arrest or attempting to escape from
J. When practical, an audible canine warning shall be given before the beginning of
an off-leash search.
[Id. at 3, § IV.G., I., J.] In reference to Policy 505, the canine policy states:
The deployment of a Summit County canine by its handler in the performance of his/her
duties may, depending upon the circumstances, be considered a use of force. When
Summit County canines are utilized to neutralize an assault, overcome resistance of
suspects or arrestees in the defense of personnel or another person, or to locate and
apprehend a suspect attempting to elude capture, the use of force policy shall apply.
[Id. at 1, § II (underline added).] Each canine handler must maintain a canine working
manual, which contains daily logs and other detailed information concerning the use of
canines. [Id. at 2, § III.C.]
“A municipality may not be held liable under §1983 solely because its employees
inflicted injury on the plaintiff,” Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir.
2010) (quotations omitted); only “its own unconstitutional or illegal policies” can supply the
basis for liability, Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998). For municipal
liability to attach, a plaintiff must establish the following elements: “(1) official policy or
custom, (2) causation, and (3) state of mind.” Schneider v. City of Grand Junction Police
Dep’t, 717 F.3d 760, 769 (10th Cir. 2013).
Proof of an official policy or custom may take the form of:
(1) a formal regulation or policy statement; (2) an informal custom amoun[ting] to a
widespread practice that, although not authorized by written law or express municipal
policy, is so permanent and well settled as to constitute a custom or usage with the
force of law; (3) the decisions of employees with final policymaking authority; (4) the
ratification by such final policymakers of the decisions—and the basis for them—of
subordinates to whom authority was delegated subject to these policymakers’ review
and approval; or (5) the failure to adequately train or supervise employees, so long as
that failure results from deliberate indifference to the injuries that may be caused.
Bryson, 627 F.3d at 788 (alteration in original) (quotations omitted).
“To establish the causation element, the challenged policy or practice must be closely
related to the violation of the plaintiff’s federally protected right.” Schneider, 717 F.3d at
770 (quotations and citation omitted). This requirement is satisfied “if the plaintiff shows
that ‘the municipality was the ‘moving force’ behind the injury alleged.’” Id. (quoting Bd.
of County Comm’rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 404 (1997)).
To meet the state of mind requirement, the plaintiff “must demonstrate that the municipal
action was taken with ‘deliberate indifference’ as to its known or obvious consequences.”
Schneider, 717 F.3d at 770 (quoting Brown, 520 U.S. at 407). This standard “may be
satisfied when the municipality has actual or constructive notice that its action or failure to
act is substantially certain to result in a constitutional violation, and it consciously or
deliberately chooses to disregard the risk of harm.” Barney, 143 F.3d at 1307.
Morris premises his municipal liability claim against the Sheriff on four theories: (1)
unconstitutional policies, (2) inadequate training, (3) informal customs and practices, and (4)
ratification. [See Doc. 37 at 2.]
1. The Sheriff’s policies
Morris argues that the Sheriff’s use of force and canine deployment policies are
constitutionally deficient because: (a) they provide misleading and incorrect instruction with
respect to where a canine falls on the use-of-force continuum; (b) the policies allow K-9
handlers to exercise complete discretion on deployment, while simultaneously providing
inadequate information and guidance regarding proper deployment procedures, tactical plans,
or instructions to other officers when working around canines, and (c) the policies also allow
for handlers to have their gun drawn (rather than holstered) while their canine is deployed.
[Id. at 17-18.]
In Morris’ view, characterizing a dog as only an “intermediate weapon,” as Policy 505
does, is a constitutionally deficient policy. In support, Morris cites the report of D.P. Van
Blaricom, his expert in police practices, which states that the use of canines should be
“placed above an impact weapon (baton strikes or impact projectiles) and just below deadly
force as it is likely to cause permanent disfiguring injury.” [Id. at 18 (quoting Ex. 9 at 10).]
Morris also points out that the International Association of Chiefs of Police (“IACP”), the
“industry standard” regarding police practices, places canine bites as a “high level of force –
one that is a step below deadly force on the force continuum.” [Id.]
Policy 505’s classification of canine force is not materially inconsistent with Mr. Van
Blaricom’s report and the IACP’s views. The Policy classifies the use of canines as an
intermediate level of force equivalent to the use of batons, improvised weapons, and vascular
neck restraints; that is a step above chemical agents and stun guns, and a step below the use
of deadly force. [See Doc. 32, Ex. B at § VI.C.4.-6.] In a policy paper that Morris does not
address, the IACP further explained its view of the use of canines, stating:
Deployment of a police canine should be regarded as any other tool in the police officer’s
use-of-force arsenal. On a ‘continuum of force,’ deployment of a police canine should be
considered a force option below that of deadly force and about equal to such less-lethal
tools as the baton, stun gun, and carotid neck restraint.
[Doc. 44, Ex. N at 2.] Policy 505’s classification of canine force is not inconsistent with the
IACP standard, and the Policy is inconsistent with Van Blaricom’s opinion only because Van
Blaricom would classify canines above impact weapons. Given the IACP’s views on this
issue, and Van Blaricom’s own acknowledgement that canines are properly below and less
severe than deadly force, Van Blaricom’s criticism does not create a genuine dispute as to
whether Policy 505 is constitutionally deficient. Even if it could be said that Policy 505
minimally departs from accepted police practices, that is not enough. See Soller v. Moore,
84 F.3d 964, 969 (7th Cir. 1996) (“[W]hether it is wise public policy to allow off-duty
officers to chase latenight [sic] traffic violators is beside the point; the action is not
unconstitutional and, more to the point, it has nothing to do with the key issue of whether the
force used ... is excessive under the circumstances.”).
Morris has also failed to provide evidence that Policy 505’s classification of canine force
caused his alleged constitutional injury. Morris argues that, by downplaying the potential
harm a dog can do, Policy 505 led Opsahl to wrongly believe that deploying Bobby was
warranted. [See Doc. 37 at 19.] But there is nothing in Policy 505 that affirmatively directed
Opsahl to use Bobby in the circumstances. The Policy places canine force in the context of
other uses of force, and, together with Policy 935, establishes guidelines for the use of
canines that handlers must follow while leaving them some discretion to deploy a canine
given the situation confronting them. This is not a situation where Opsahl was carrying out
the express terms of the Policy. Morris’s causation theory is too attenuated from his alleged
injuries to support a finding that Policy 505’s canine classification was the “moving force”
behind the constitutional violation. See City of Okla. City v. Tuttle, 471 U.S. 808, 824 n.8
(1985) (“The fact that a municipal ‘policy’ might lead to ‘police misconduct’ is hardly
sufficient to satisfy Monell's requirement that the particular policy be the ‘moving force’
behind a constitutional violation.”); Brown v. Whitman, 651 F. Supp. 2d 1216, 1228-29 (D.
Colo. 2009) (city policy concerning use of verbal warnings before deploying canine not
“moving force” behind plaintiff’s injuries because policy did not direct the action found to be
Accordingly, municipal liability cannot be premised on Policy 505’s classification of
canines as intermediate force.
Morris also claims the Sheriff’s policies are constitutionally deficient because they are
“completely silent” regarding the proper procedure for deploying canines, including what
crimes are deployable, how to develop tactical plans while using a canine, and providing
instructions to other officers assisting the canine handler. Morris also criticizes the policies
because they do not require the approval of a supervisor before deploying a canine, which, in
his view, gives handlers “unchecked discretion.” [Doc. 37 at 19.]
Policy 935, Section G states that canines “shall not be deployed off-leash” unless the
handler has probable cause to believe that a suspect is actively resisting arrest, the canine is
being assaulted, a felony or violent misdemeanor suspect is attempting to evade arrest by
flight, or deployment is necessary to prevent any person from assaulting the handler, another
policy officer, deputy or citizen. [Doc. 32, Ex. C, supra at 5.] Section I of Policy 935
requires handlers, before deploying a canine, to consider the severity of the crime involved;
whether the suspect poses an immediate safety threat; and whether the suspect is actively
resisting arrest or attempting to escape. [Id.] Policy 505 also applies to the use of canines,
and forbids officers from “[using] more force than is reasonably necessary to subdue and
apprehend a suspect.” [Doc. 32, Ex. B, supra at 3.] Contrary to Morris’ view, these policies
speak directly to canine deployment issues and restrict a handler’s discretion in their use.
While the guidelines may not exhaustively discuss every circumstance or consideration
attending the use of canines, and may depart in some respects from police practices, Section
G of Policy 935 is identical to the model policy established by the IACP [compare supra at 5
with Doc. 44, Ex. M], Section I restates the use-of-force reasonableness test established by
the Supreme Court in Graham v. Connor, 490 U.S. 386, 396 (1989), and Section 505 states
the general excessive force standard under Supreme Court precedent. Morris’ own expert,
Mr. Van Blaricom, testified that he was “not critical of anything in this K-9 policy,” [Doc.
44, Ex. O at 96:9-97:11]. These policies are not facially unconstitutional.
When a policy is not unconstitutional on its face, a plaintiff attempting to establish
causation must show that the municipality consciously enacted the policy with deliberate
indifference to the rights of its citizens. Brown, 520 U.S. at 407 (quoting City of Canton, Oh.
v. Harris, 489 U.S. 378, 388 (1989)). Here, the rights of Summit County citizens appear to
be protected by the limits on and guidelines regarding the use of canines imposed by the
Sheriff’s policies. Although Morris has offered testimony criticizing the policies as not
going far enough [see Doc. 37 at 20], those criticisms are rooted in public policy, not in the
Accordingly, municipal liability cannot be premised on the Sheriff’s policies regarding
the use and deployment of canines.
Morris also claims that the Sheriff’s canine policies are constitutionally deficient because
they allow a handler to deploy a canine on a leash held in one hand while holding a firearm
in the other. [See id. at 21-22.] In support, he cites the deposition testimony of Mr. Van
Blaricom, who says that having a leash in one hand and a gun in the other is “a formula for
disaster.” [Id., Ex. 13 at 65:21-22.] But it cannot be reasonably said, as Morris does in
conclusory fashion, that “Deputy Opsahl shot his gun off because policy and training allowed
him to be juggling his gun and his dog and the dog’s leash.” [Doc. 37 at 11.] The Sheriff’s
policy essentially left it to Opsahl’s discretion on whether to draw his firearm while
controlling Bobby and the leash, based on whether he was confronted with an immediate
danger. Exercising that discretion, Opsahl drew his gun because he was pursuing three
fleeing men suspected of burglary and assault late at night; he shot his gun off by accident in
chaotic circumstances. A reasonable juror could not conclude that the Sheriff’s policy
concerning the simultaneous handling of a firearm and a canine was the moving force behind
Morris’ alleged constitutional injury.
2. Failure to train
Morris argues that the Sheriff inadequately trains its officers on the use of force and that
the lack of training caused his constitutional injury. [Doc. 37 at 22-25.]
“A municipality's culpability for a deprivation of rights is at its most tenuous where a
claim turns on a failure to train.” Connick v. Thompson, ––– U.S. ––––, 131 S. Ct. 1350,
1359, 179 L.Ed.2d 417 (2011). To establish municipal liability under a failure to train
theory, a plaintiff must show that: (1) the municipality’s training was deficient in a specific
way, Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010); (2) the officers exceeded
constitutional limitations on the use of force; (3) the use of force arose under circumstances
that constitute a usual and recurring situation with which police officers must deal; (4) the
inadequate training demonstrates a deliberate indifference on the part of the city toward
persons with whom the police officers come into contact, and (5) there is a direct causal link
between the constitutional deprivation and the inadequate training. Allen v. Muskogee,
Okla., 119 F.3d 837, 841–42 (10th Cir. 1997).
Morris’ failure to train theory fails at the first element because he has not provided record
evidence pointing to specific deficiencies in the Sheriff’s canine training program. The facts
established by the Sheriff, which Morris does not dispute, demonstrate that the two Summit
County canines were trained at Von Liche Kennels over a 14-week period; are certified in
various types of tracking, searching, criminal apprehension and obedience; and are certified
at the state and national level every year. [See Doc. 32 at 7.] The undisputed facts also
establish that Opsahl received initial K-9 training in his police academy; 40 hours of training
at a K-9 SWAT school in 2009; and was certified by the Colorado Canine Police Association
in 2011. [See id. at 6-7.] It is also undisputed that Opsahl and Bobby train together 15-20
hours per month. [See id. at 8.] Given those undisputed facts, a reasonable juror could not
find that the Sheriff’s canine training program is so deficient as to be of constitutional
magnitude. Morris’ complaints about how the Sheriff trains canine officers [see Doc. 37 at
23-25] are essentially a restatement of his unpersuasive arguments regarding the Sheriff’s
3. Unconstitutional customs and practices
Morris also alleges that he was subjected to excessive force because of the Sheriff’s
informal customs or practices. [See id. at 25-28.] To establish municipal liability on the
basis of custom or practice, a plaintiff must show:
(1) the existence of a continuing,
persistent and widespread practice of unconstitutional misconduct by the municipality's
employees; (2) deliberate indifference to or tacit approval of such misconduct by the
municipality's policymaking officials after notice to the officials of that particular
misconduct; and (3) that the plaintiff was injured by virtue of the unconstitutional acts
pursuant to the custom and that the custom was the moving force behind the unconstitutional
acts. Gates v. Unified Sch. Dist. No. 449, 996 F.2d 1035, 1041 (10th Cir. 1993).
Morris asserts that the Sheriff had a continuing, persistent, and widespread custom of
allowing its handlers to engage in unconstitutional uses of canine force. In support, he
quotes a paragraph of Burwell’s expert report in which Burwell says:
After reading numerous bite reports where Deputy Opsahl and police dog Bobby had bit
suspects, I found that the Sheriff’s Department is allowing Deputy Opsahl to operate
inconsistent of that of the International Association of Chiefs of Police Canine Model
Policy. The police dog is being used to bite persons on traffic stops and incidents that are
not high risk felony suspects. The canine should not be deployed next to an intoxicated
person who is only being questioned. See attached bite #2. The policy and procedures
regarding canine deployments is outdated and does not follow the industry standards for
using a find and bite police canine.
[Doc. 37 at 26 (quoting Ex. 10 at 7).] Regarding the “numerous bite reports” Burwell refers
to, there were in fact three of them from 2008, when Bobby started as a police canine, to
April 26, 2011, when the incident with Morris occurred. Neither side has been forthcoming
about the details of the three prior incidents. The record shows that one incident involved an
intoxicated male suspected of domestic violence who advanced on Opsahl after Opsahl told
him to stay away [Doc. 37, Ex. 13 at 61:1-5]; and another dealt with a noncompliant female
suspect who was in a bush and whom Bobby found, bit and dragged out [id. at 197:20198:11]. The parties have not described the third incident in their pleadings, and the Court
has not been able to find a description of it in the record.
The Sheriff reviewed the three incidents and concluded that Opsahl’s use of Bobby
complied with departmental policies and procedures. [Id. at 196:3-15.] Morris has offered
expert testimony from Ernest Burwell disagreeing with the Sheriff’s conclusions; in
Burwell’s view, Opsahl should not have used Bobby in those situations to begin with.
Burwell’s criticism stops short of saying the prior incidents resulted in constitutional
violations, and the limited facts Morris has presented do not indicate that the use of Bobby
amounted to “unconstitutional misconduct”; to the contrary, both suspects in the two prior
incidents were noncompliant, and there is nothing to suggest that either incident resulted in a
citizen complaint or a lawsuit. In addition, Morris has failed to offer evidence showing that
Sergeant Smith has misused his canine in the past, which undermines any inference that the
Sheriff’s purported practices are “widespread.”
[See Doc. 37, Ex. 9 at 167:7-16.]
Accordingly, Morris has not met his burden of showing a “persistent and widespread practice
of unconstitutional misconduct” by Summit County canine handlers such that the Sheriff is
liable for Morris’ injuries on the basis of custom. See Gates, 996 F.2d at 1041.
Morris also argues that the Sheriff’s response to the incident here demonstrates that the
Sheriff had a custom of tolerating incidents of excessive canine force. [See Doc. 37 at 2830.] A municipality’s post-incident conduct may provide circumstantial evidence regarding
pre-existing customs or practices. See Cordova v. Aragon, 569 F.3d 1183, 1194 (10th Cir.
2009). But the Sheriff’s response to the incident here cannot reasonably be considered
The Sheriff assigned an investigation to the District Attorney,
placed Opsahl on administrative leave, issued him a written warning, and required him to
attend remedial classes. Although Morris takes issue with the Sheriff’s decision to not
conduct an internal investigation, and to not discipline Opsahl more severely, the fact
remains that the Sheriff did take remedial action following the incident, which precludes any
inference that he believed Opsahl’s conduct complied with municipal customs or practices.3
Morris analogizes to a few cases where a municipal custom was found by the court; each
demonstrates the weakness of his custom theory. In Ortega v. City and County of Denver,
944 F. Supp. 2d 1033 (D. Colo. 2013), the plaintiff presented testimony from Denver
Police’s independent monitor that the Department had a “systemic problem” of not holding
officers accountable for their uses of force, citing “a number of cases” in which Denver’s
Internal Affairs Bureau rejected citizen complaints outright instead of properly investigating
them. Id. at 1039. Here, Morris only has evidence of two prior uses of canine force by
Opsahl that, on this record, do not seem particularly excessive, egregious, or comparable.
While it takes fewer incidents to reasonably find a “systemic problem” in Summit County
versus Denver, these two isolated incidents of questionable relevance are insufficient.
Morris offers the deposition testimony of Captain FitzSimons as evidence that the Sheriff believed “there was no
misconduct” in how Opsahl used Bobby. [See Doc. 37 at 29 (quoting Doc. 37, Ex. 12 at 91:3-7).] FitzSimons is not
competent to testify as to the Sheriff’s beliefs.
Morris also cites to Starstead v. City of Superior, 533 F. Supp. 1365 (W.D. Wisc. 1982),
where the plaintiff alleged a systemic pattern of misuse of police dogs on the basis of five
separate incidents involving seven different people. Id. at 1369-70. Here, the only evidence
of purported misconduct involves Opsahl.
There is no allegation of separate incidents
involving other Sheriff’s deputies like Sergeant Smith misusing canines.
Finally, Morris cites to Kopf v. Wing, where the plaintiff proved the existence of a custom
on the basis of statistics tending to show that a substantial percentage of citizen complaints
regarding the use of excessive force were rejected by the county. 942 F.2d 265, 269 (4th Cir.
1991). Here, Morris provides no evidence on the number of canine deployments that have
resulted in canine bites versus the total number of deployments, the number of internal
investigations the Sheriff has undertaken regarding canine deployments or bites, or any other
facts that would support his custom or practice allegations.
Accordingly, Morris cannot prevail on his municipal liability claim on the basis of
custom or practice.
Morris argues that the Sheriff ratified Opsahl’s conduct by outsourcing an investigation
of the incident to the District Attorney instead of investigating the matter internally, and
because he chose not to discipline Opsahl. [See Doc. 37 at 41-51.] Municipal liability can
be found if a final municipal policymaker ratifies the conduct or decision of a subordinate
and the basis for it. Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1189
(10th Cir. 2010). In Melton v. City of Oklahoma City, 879 F.2d 706, 725 (10th Cir. 1989),
the Court concluded that City Manager ratified the Chief of Police’s firing of the plaintiff
because the Police Chief “met with the City Manager and discussed the proposed dismissal .
. .” and the “City Manager expressly approved such dismissal,” which then occurred. Here,
there is no evidence showing that Sheriff Minor knew of Opsahl’s use of force and expressly
approved it before Opsahl took action. Morris’ ratification theory is essentially that the
Sheriff failed to investigate or discipline Opsahl after the fact, but “basic [principles] of
linear time” prevent a court from finding that conduct occurring after an alleged violation
could have somehow been the cause of it. Cordova, 569 F.3d at 1194; see also Butler v. City
of Norman, 992 F.2d 1053, 1055-56 (10th Cir. 1993) (rejecting argument that supervisor was
liable for officer’s excessive force because supervisor did not discipline officer following
incident); Trujillo v. Campbell, No. 09-cv-03011, 2012 WL 3609747, at *8 (“Although
Plaintiff raises legitimate questions about the thoroughness of Denver's investigation . . ., the
Court is unable to perceive how a lackluster post-shooting investigation could have caused
Officer Campbell to violate Mr. Gomez's Fourth Amendment rights.”).
For the foregoing reasons, it is
ORDERED that Defendant Sheriff of Summit County’s Motion for Summary Judgment
[Doc. 32] is granted. The Clerk will enter judgment dismissing the Sheriff from this civil
Dated: February 21, 2014.
BY THE COURT:
s/Richard P. Matsch
Richard P. Matsch
Senior District Judge
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