Valdez v. Derrick, III et al
Filing
124
ORDER ON 82 DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Motion for summary judgment is GRANTED as to John Macdonald, dismissing him from this civil action based on qualified immunity; and DENIED as to Robert Motyka, Jr., and the City and County of Denver, by Judge Richard P. Matsch on 4/17/2019. (ktera)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior District Judge Richard P. Matsch
Civil Action No. 15-cv-00109-RPM
MICHAEL VALDEZ,
Plaintiff,
v.
JOHN MACDONALD, Denver Police Officer, in his individual capacity;
ROBERT MOTYKA, JR., Denver Police Officer, in his individual capacity;
CITY AND COUNTY OF DENVER,
Defendants.
_____________________________________________________________________
ORDERS ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
_____________________________________________________________________
During the morning of January 16, 2013, the Denver Police Department (DPD)
received calls reporting a domestic violence incident in Thornton and two separate
shooting incidents in Aurora and Montbello, all involving a red Dodge pickup truck.
Later in the day, Michael Valdez got into the bed of that truck having accepted the offer
of the driver, Johnny Montoya, to give him a ride to go to the house of Valdez’ brother.
Chuck Montoya was in the bed with a load of “junk.” Jude Montoya sat in the passenger
seat and Alyssa Moralez sat in the middle. Valdez knew the Montoya brothers. He did
not know Moralez and he had no knowledge of any of the incidents involving the truck
that morning. Valdez did not have a gun.
During the afternoon a DPD officer spotted the red truck in northwest Denver and
broadcast his observation on the radio. Many officers responded. Officer Derrick
encountered the truck, was shot at and narrowly avoided a collision with it. Officer Olive
located the truck and began a pursuit. Sgt. Motyka heard the radio calls as he was
entering the District One station. He joined in the chase, driving a “slick top” police car.
It did not have the roof top lights but did have a siren and wig-wag lights on the
dashboard. The truck made many turns and maneuvers on the streets to avoid the
police. At one point Motyka was immediately behind the truck and was being fired at.
He saw the shots being fired by a man in the bed of the truck and a man leaning out of
the passenger window. Several shots went through his windshield. One of them struck
his left shoulder causing him to pull over to assess the wound. At that time, Olive
moved in front of Motyka and became the lead car in the pursuit. Motyka rejoined the
chase following in behind Olive. The truck was emitting smoke from a flattened right
front tire.
The driver lost control and the truck crashed into a tree at the edge of Columbus
Park at 39th Avenue and Osage Street. Olive was first to arrive at the scene. He got out
of his patrol car and stood behind the front door to assess the situation. No shots were
being fired by anyone at that time. Motyka arrived within moments and took up a
position behind and to the right of Olive’s car using it as cover. Jude Montoya, wearing
a white “hoodie” was seen running away, having come out of the passenger door of the
truck. Other people were coming out that door rapidly. The driver’s door was jammed
in the crash.
There are many factual disputes about the sequence of events and the conduct
of the officers and occupants of the truck. There are also inconsistent statements and
testimony from those present in depositions, interviews and in the trial of Chuck
Montoya.
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Without judging the credibility of these witnesses, the following narrative is a
version of events that a reasonable jury could find drawing all inferences in favor of
Valdez.
Motyka started shooting immediately on arrival at his position. He fired a burst of
six or seven rounds. After a brief pause he fired another burst. Lt. Macdonald arrived in
moments and started firing in the same direction as Motyka. He shot six times. In his
interview with DPD Motyka said that “probable cause is in my shoulder” suggesting he
was acting out of revenge and anger at having been shot.
Chuck Montoya stayed in the truck bed. During the police pursuit and hearing
gunshots, Valdez had crawled up into the cab through the rear window and crouched
down above Moralez who was curled up on the floor.
Valdez and Moralez testified that they went out the passenger door immediately
after Jude and went down to the ground in a prone position between the truck and a
tree, facing into the park.
During the bursts of gunfire by Motyka and Macdonald Valdez was hit in a finger
and in his back. The bullet that hit him in the back, causing serious injury, came from
Motyka’s gun. It was not possible to determine whether the bullet that hit his finger
came from the shooting by Motyka or Macdonald. During the DPD investigation
multiple bullets were found in the lower part of the tree and one on the grass near where
Valdez had lain.
It is apparent that the area was sprayed with bullets permitting the inference that
the officers were firing without aiming at a clear target.
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Motyka was in extreme pain from the wound in his shoulder. In an interview with
a DPD investigator on January 18, 2013, he said that the pain was causing him to
nearly faint, saying that he saw a black cloud closing his peripheral vision and after
shooting he backed off to avoid becoming a liability to the other officers. Macdonald
helped him to a car. Motyka was very angry as well and very eager to get the occupant
who shot him. In the same interview he said that he kept thinking about aiming with the
front sight as he had been trained. These statements and the scattered bullets warrant
an inference that Motyka started shooting without making any effort to determine
whether there was any immediate threat to him or others as the occupants of the cab
came out. Johnny Montoya was the last occupant to come out the passenger door. He
was shot dead by other officers after failing to obey their commands several minutes
after Motyka withdrew from the immediate scene.
The shootings by Motyka and Macdonald are actions in sharp contrast to the
conduct of Olive who was there first and who did not assess an immediate threat
requiring shooting for the safety of the officers or anyone else.
Both Motyka and Macdonald have said that they were firing at a man who had a
gun and went to his knee to get into a firing position. Olive did not support that view.
Presumably Johnny had a gun when he was shot.
Three guns were found. DNA testing excluded Valdez as a source of what was
found on them. Johnny Montoya had come out the passenger door and was standing
when Valdez and Moralez were on the ground. He must not have been seen as an
immediate threat by Olive or other officers until he was shot three minutes after Motyka
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and Macdonald were done shooting. They were about three car lengths away from the
occupants when firing.
The defendants argue that there was no seizure of Valdez under the Fourth
Amendment by Motyka and Macdonald prior to the shooting. That is irrelevant. There
can be no doubt that all of the occupants of the truck were seized by DPD officers when
the truck crashed. They were surrounded by police cars and officers. Valdez was shot
and thereby immobilized. It may be true that they did not intentionally shoot at Valdez
while he was on the ground in a surrendering position but that is not required for liability
because the record indicates that there was a hail of gunfire by them which can support
a finding of reckless and unreasonable conduct. A jury could find that Motyka’s conduct
after he had been shot was in itself unreasonable because he was by that time impaired
both physically and emotionally. His subjective motivation is not relevant. The well
established standard for officer conduct in using deadly force is what should be
expected from an objectively reasonable police officer in the same position in perceiving
whether there was probable cause to believe that there was a threat of serious harm to
himself or to others. Tennessee v. Garner, 471 U.S. 1, 11 (1985). There had been a lot
of shooting at the police during the pursuit. Civilians were in danger in the residential
neighborhood where the truck and police cars were speeding.
The crash scene was chaotic and changing fast. Motyka thought that there were
four occupants of the truck, including a man shooting from the truck bed and another
man leaning out of the passenger side window. But no one was actively shooting at the
police when he and Macdonald arrived. Motyka had protective cover from Olive’s
vehicle. One occupant had already run away. A jury could reasonably find that like
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Olive a reasonable officer in Motyka’s position would have waited for the situation to
develop further before shooting at an identifiable threat which Johnny Montoya
presented a few minutes later. Motyka saw Valdez and Moralez go to the ground but
could not tell if that was because they had been shot.
It is recognized that the use of deadly force must be judged from the perceptive
of a reasonable officer on the scene forced to make split second judgments about the
amount of force necessary in a particular situation. But reasonableness depends upon
whether the officers were in danger at the precise moment that they used force. Estate
of Ceballos v. Husk, 919 F.3d 1204, ____ (10th Cir. 2019) (quoting Allen v. Muskogee,
119 F.3d 837, 840 (10th Cir. 1997)).
Here there was a lull in the action which the defendant officers should have
recognized as Olive did.
There was probable cause to arrest all of the occupants of the truck when it
crashed. The question presented is what level of force was required to make that
arrest. The use of deadly force depended upon whether there was an imminent threat
to the safety of the police officers.
Sgt. Motyka began firing immediately on his arrival. He said that he shot at
Valdez believing that he was the occupant who had wounded him. There is a question
of fact as to the position of Valdez when Motyka began firing and when Motyka’s bullet
struck Valdez in the back. It is a reasonable inference that the bullet came from the
second round of shots at which time Valdez was on the ground, given the location of the
bullets found near the place where he was lying. Even if Valdez had been standing
there was no basis to believe that he was a threat in that he was not armed. In fact,
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none of the occupants were seen as an immediate threat to Olive when he arrived
before Motyka. Whatever Motyka thought subjectively, his wild firing was unjustified
because there was no imminent threat that prevented the use of lesser force to contain
the occupants and arrest them. It is to be recalled that the threat posed by Johnny
Montoya resulting in his killing was three minutes after Motyka withdrew and after
repeated commands to him to surrender.
Given Motyka’s violation of the Fourth Amendment, the issue controlling the
application of qualified immunity depends on a finding that this was contrary to clearly
established law as set in a prior opinion of the Supreme Court or the Tenth Circuit Court
of Appeals. The recent opinion of the appeals court in Estate of Ceballos, supra, is
relevant because in the opinion affirming denial of qualified immunity for Officer Husk
the court found a sufficient precedent in Allen v. Muskogee, 119 F.3d 837, 839-41 (10th
Cir. 1997). That case is also applicable here. The defendants seek to distinguish it
because there was no exchange of gunfire involved in that case.
That argument misses the fact that at the time of Motyka’s arrival there were no
shots being fired at any officers. There was a lull in the action after the truck crashed.
The law requires an imminent threat and there was none unless the testimony of the
defendants is believed that they saw Valdez with a gun. That testimony has been
sufficiently challenged in this record to discount it at this summary judgment stage,
leaving it for the jury at trial.
The claims against defendant Lt. Macdonald are different. It would be too
speculative to find that the bullet that struck the plaintiff’s finger came from Macdonald’s
gun. He cannot be held liable for that wound.
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The plaintiff contends that as the ranking officer Macdonald had a duty to
intervene and prevent Motyka’s shooting. The evidence from Macdonald’s own
testimony is that he started firing because Motyka was shooting. The claim then is that
he should have ordered Motyka to stop firing. That would have been difficult in this
chaotic noisy environment. What he did wrong was his immediate acceptance of
Motyka’s perception of an imminent threat to officer safety. There is no clearly
established law that his conduct violated the Fourth Amendment. Lt. Macdonald has
qualified immunity.
The plaintiff asserts municipal liability of the City and County of Denver for failure
to train the defendant officers and the ratification of their conduct after the fact.
There is no evidence concerning the DPD training policy with respect to police
responding to a community threat by pursuing a vehicle whose occupants are firing at
the police which ends with a crash and the occupants coming out of the passenger door
with no shooting. The plaintiff’s counsel sought to obtain a Rule 30(b)(6) deposition to
discover DPD training. This Court denied that motion at a conference during which the
Court commented that if the defendants are liable then Denver is liable. That was an
unfortunate comment which the plaintiff’s counsel understood to be a ruling on
municipal liability
It was not a ruling.
The material produced with the summary judgment motion is sufficient to submit
to a jury the issue of ratification of the shootings by the City. Exhibit 28 is a public
statement of the then Manager of Safety with the following conclusion:
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After a careful review and analysis of this case, the Manager of Safety
concludes that Sergeant Motyka, Corporal Roller and Technician Motz
acted in accordance with the law, the Department’s policies and their
training.
In closing, the Manager would like to assure the public and the members
of this Department that it has reviewed and analyzed this case carefully.
The conclusions that were reached by this office are consistent with those
of the District Attorney’s Office, the Chief of Police and the OIM. These
consistent conclusions are supported by the facts. The Department
always has concern when officers use deadly force. However, in many
instances, such as in this case, the actions of the person against whom
force was used have precipitated that use of force by their egregious
behavior. Throughout this encounter, the involved officers took action and
utilized tactics which they reasonably believed were necessary to protect
their own lives, as well as the lives of others. These officers acted
appropriately and reasonably to stop the imminent threat posed by
Michael Valdez and John Montoya.
In reaching this conclusion the City conflated the conduct of John Montoya and
Michael Valdez as threats requiring lethal force. Motyka’s shooting of Valdez is equated
with the shooting of John Montoya by Corporal Roller and Technician Motz.
That is contrary to what a jury may find from the proposed evidence that has
been submitted with the defendants’ motion for summary judgment. In this Court’s
Order Denying Motion to Dismiss [Doc. 26] it accepted as plausible the allegations that
suggested that the detectives signing probable cause affidavits for the arrest warrant
and criminal charge were in a conspiracy to cover up unlawful conduct. It will be for the
jury to decide whether there was any imminent threat to officer safety by the actions of
Valdez and whether the investigation and vindication of Motyka’s shooting were valid.
It does not excuse this public ratification to say that the officers involved misled
the supervisors. Either because of inadequate investigation or distorting information
provided, it is the fact that the City expressly informed the public that the shooting of
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Valdez was justified and that Motyka complied with established policy and training. No
case has been cited to support the legal conclusion that this is ratification of
unconstitutional conduct but the City does not have the defense of qualified immunity
and this case may be the first of its kind.
Upon the foregoing, it is
ORDERED that the motion for summary judgment is GRANTED as to John
Macdonald, dismissing him from this civil action based on qualified immunity; and
DENIED as to Robert Motyka, Jr., and the City and County of Denver.
DATED: April 17, 2019
BY THE COURT:
s/Richard P. Matsch
________________________________
Richard P. Matsch, Senior District Judge
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