Archuletta et al v. City of South Salt Lake et al

Filing 50

MEMORANDUM DECISION granting 31 Motion for Summary Judgment; denying as moot 35 Motion to Strike. Signed by Judge Tena Campbell on 10/14/14 (alt)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

LEO A. ARCHULETTA, and VIOLA E.
ARCHULETTA,
Plaintiffs,

ORDER
AND

vs.

MEMORANDUM DECISION

CITY OF SOUTH SALT LAKE; UNIFIED
POLICE DEPARTMENT; DARREN CARR;
OFFICER LOVATO; CHAD LEETHAM;
JAKE PARKER; JOSEPH STUDSTRUP;
JOSEPH SUTERA, and JOHN DOES 1-10,

Case No. 2:12-CV-703-TC

Defendants.

Defendants Unified Police Department and Officer Luis Lovato (the only remaining
defendants in this Section 1983 civil rights suit) (collectively, “Defendants”) have filed a motion
for summary judgment on Plaintiff Leo Archuletta’s claims for illegal entry, illegal search,
excessive force, municipal liability, assault and battery, and respondeat superior. For the reasons
set forth below, the court holds that (1) Officer Lovato’s entry into the house was justified
because he reasonably relied on the presence and representations of officers already at the scene;
(2) his search of the crawl space was a valid protective sweep; (3) Officer Lovato’s use of a
police dog to find and secure Mr. Archuletta in the attic crawl space was a reasonable level of
force under the circumstances; and (4) the court does not have jurisdiction over Mr. Archuletta’s
state law claim. Because the court finds that Officer Lovato did not violate Mr. Archuletta’s

constitutional rights, neither Officer Lovato nor his employer, the Unified Police Department, is
liable to Mr. Archuletta, and so the Defendants’ motion for summary judgment is GRANTED.
FACTUAL BACKGROUND1
Plaintiff Leo Archuletta claims that his constitutional rights were violated by Officer Luis
Lovato during events that occurred on April 12, 2012, at Mr. Archuletta’s home in the City of
South Salt Lake. Officer Lovato is a police officer employed by Co-Defendant Unified Police
Department (UPD). He handles a police dog named Aldo and is sometimes referred to as a “K9
officer.”
On April 12, 2012, Officer Lovato received a call from the South Salt Lake (SSL) Police
Department (through police dispatch) requesting his assistance and the assistance of his patrol
dog Aldo. They called him to a house where, according to the dispatch operator, a rape suspect
(Robert Maestas) was “barricaded.” (Dep. of Vincente Luis Lovato at 30.) That house was Mr.
Archuletta’s house.
The SSL police officers2 were searching for Mr. Maestas, who was accused of sexually
assaulting two minor girls. They received a tip that Mr. Maestas was staying at a house located
at 3555 South 1300 East in South Salt Lake.
When they arrived at the house, Mr. Maestas and Mr. Archuletta were both there
(although the police officers did not know that at the time). As soon as the officers knocked on
the door, Mr. Maestas and Mr. Archuletta (who was not suspected of any crime) hid in a crawl

1

The court finds that there are no genuine disputes of material facts.

2

Some of those officers, as well as the City of South Salt Lake, were Co-Defendants of
Officer Lovato, but they have since been dismissed from the case.
2

space in the attic. Mr. Archuletta’s wife, Viola,3 answered the door and the officers entered the
house without a warrant. For purposes of analysis, the court assumes, without deciding, that the
SSL police officers illegally entered the house. No UPD officer participated in the initial entry
into Mr. Archuletta’s home. (Decl. of SSL Police Officer Jake Parker (Ex. 3 to Defs.’ Mem.
Supp. Mot. Summ. J.) ¶ 4; Decl. of SSL Police Officer Darren Carr (Ex. 2 to Defs.’ Mem. Supp.
Mot. Summ. J.) ¶ 16.)
The officers entered the home to look for Mr. Maestas. They called out to anyone in the
house and threatened to use a police dog if the person did not come out of hiding. Eventually
they found Mr. Maestas hiding in the crawl space after he flinched and revealed his location.
Mr. Maestas surrendered and the officers took him into custody. When they asked him
whether anyone else was hiding in the attic, Mr. Maestas responded, “Not that I know of.”
(Parker Decl. ¶ 11.) According to one of the SSL police officers, “Because Mr. Maestas did not
simply tell me ‘no,’ I believed that at least one more individual was hiding in the crawl space.”
(Id. ¶ 12.)
All of this happened while Officer Lovato and Aldo were on their way to the house. As
Officer Lovato traveled to the house, he listened to his radio to follow events. “I heard someone
on the radio saying that they were challenging the suspects. So by the time I arrive there, I just
figured everything was pretty much over.” (Lovato Dep. at 32.) Officer Lovato arrived at the
house about ten to fifteen minutes after receiving the call for assistance. He took Aldo to the
backyard where other officers were waiting and “established a containment position just in case

3

Viola Archuletta, who was a plaintiff in this case, has since passed away.
3

somebody was still in the house and tried to flee.” (Id.) But he was told by another officer to go
inside the house because the officers needed Officer Lovato’s (and Aldo’s) assistance. He went
inside the house and was directed upstairs to the loft area. He announced that he was bringing
his dog up to the loft. When he arrived at the area near the crawl space, he saw four or five
officers waiting. The officers had their weapons drawn.
Officer Lovato was “advised that they had two in custody and they believed that there
was a third person in the attic. I was told they had been making K9 announcements since they
had called for me and that they needed to clear the crawl space.” (Lovato Dep. at 37.)4 None of
the officers told Officer Lovato about Mr. Maestas’s statement or why they had a suspicion that
at least one more person might be in the crawl space. (Id. at 39.)
The officers told Officer Lovato that the rape suspect had been hiding in the crawl space
and that if another person was hiding in the crawl space (and they suspected there was), the
officers were going to charge him with felony obstruction. Officer Lovato “was also advised
of . . . the officers’ safety concerns.” (Id. at 46.) The record does not disclose whether the nature
of those “safety concerns” was ever articulated to Officer Lovato. No one told him that they
feared that a person in the crawl space was armed.
But Officer Lovato apparently, and unsurprisingly, filled in the blanks based on his own
experience and assessment of the situation he confronted. He indicated during his deposition that
the crawl space posed a danger to any officer who entered the space without knowing what lay

4

Plaintiff makes a hearsay and foundation objection to the Defendants’ use of statements
made to Officer Lovato. (See Pl.’s Opp’n Mem. (Docket No. 33) at 17.) The objection is
overruled because the statements are not offered to prove the truth of the matter but rather to
paint a picture of what Officer Lovato experienced and the backdrop for his actions.
4

ahead: “Based on the nature of the crawl space, if officers believed someone else was in there in
the blind corners, the low lighting, the fact officers would have to be on their knees, a police
service dog was the safest way to clear the attic.” (Lovato Dep. at 81.) He stated that there were
no sensible alternatives to using a police dog to clear the attic.
Q.

. . . [W]ere there alternative means of clearing the attic? I assume there
would be.

A.

Officers.

Q.

Okay. The officers could go in their [sic] themselves?

A.

Yes.

Q.

Which is potentially more dangerous to the officers?

A.

Considerably more dangerous to the officers.

Q.

Are there other techniques or methods that are typically deployed in a
situation like that?

A.

I assume they could use a pole camera or maybe a robot, something to that
effect.

Q.

What about capsicum or pepper spray?

A.

It’s not really an option in a situation like that because you saturate the
attic with OC spray. You still have to go in and clear it, and generally
speaking, patrol officers don’t have gas masks in their vehicles.

Q.

What about flash grenades, things like that, are they ever used in a
situation like that, in your training or experience?

A.

By tactical teams. But not to clear an attic. That’s not something we
would use a flash grenade for.

(Id. at 82-83.) He also acknowledged that if someone in the crawl space had a gun, that person
could fire the gun into the area where the officers were waiting.

5

He did not know how long Mr. Maestas had been in custody or where he was at the time.
Officer Lovato had no information about the nature of the rape charges. He did not know where
or when the alleged rape occurred, or under what circumstances. When asked why he did not
just leave if he knew that the rape suspect was already in custody, he said he did not consider that
possibility. Instead, he said, “I assumed there was going to be continued police activities in the
house, and I relied on the officers on the scene, just based on what they were asking me to do,
that they were going to continue to be in the house and that the attic needed to be cleared. And I
was there to support them with my K9.” (Lovato Dep. at 80-81.)
Before Officer Lovato sent Aldo into the crawl space, he stood at the threshold of the
crawl space and made additional announcements that he was going to send in a police dog if the
person did not call out and surrender. He also announced that if the person did not come out, the
dog would find him and bite him. This was standard procedure.
Aldo, a “patrol dog,” is certified as an apprehension dog and is trained “in a detain
method, which means that he would not bite someone unless they were either fleeing or resisting
in some way.” (Lovato Dep. at 10-11, 30, 46.) Aldo was trained to bite if the suspect moved or
upon command from the officer. Once the dog is cued to know that it is in apprehension mode,
if the dog is “off line” (meaning off his leash) and the officer is not present or the dog cannot
hear the officer give a command to hold or bite, the dog will bite the suspect if he moves. (Id. at
24.) According to Officer Lovato’s description of the training process, the dog treats the
situation as a game. (Id. at 76-77.) As he said, there is no “enemy.” “[M]ovement is what he
responds to. Movement is an invitation for him to play the game.” (Lovato Dep. at 77.) The dog
is trained to hold on until released (physically or by command) by the K9 officer.
6

Officer Lovato repeated his warnings and announced that he was giving a final warning.
There was no response or noticeable movement.
At that point, Officer Lovato sent Aldo in. The crawl space had two blind corners. Aldo
indicated that no person was on the right side of the crawl space. So Officer Lovato focused on
the left section of the crawl space. Aldo was not on a leash at that point, and Officer Lovato
could not see what was around either of the corners. Aldo, however, found Mr. Archuletta, who
was lying down with his feet toward Aldo. Aldo bit him in the leg. Officer Lovato did not give
any command to Aldo to bite, although he did give a command that put Aldo in “apprehension
mode.” As noted above, if the officer is not present or the dog cannot hear the officer give a
command to hold or bite, the dog will bite the suspect if he moves. (Id. at 24.)
Nothing in the record indicates what occurred right before Aldo bit Mr. Archuletta. But
when Aldo did bite Mr. Archuletta, Officer Lovato, holding on to Aldo’s harness, pulled Aldo
and Mr. Archuletta from the crawl space. At that time, Officer Lovato saw Mr. Archuletta trying
to pry Aldo’s mouth from his leg. Officer Lovato called that “fighting” with the dog and said
that when that happens, the dog is not going to let go and will probably tighten its hold. In fact,
Aldo did not release his hold on Mr. Archuletta’s leg until Officer Lovato and fellow officers had
secured Mr. Archuletta’s hands and Officer Lovato had performed a “standard release” move on
Aldo (i.e., a move creating a gag reflex in the dog that releases the dog’s jaws). There was
nothing procedurally unusual about the release of Mr. Archuletta by Aldo. (Id. at 95 (it was a
“standard release”).) Officer Lovato called this apprehension procedure a “tactical release” (the
dog bites the suspect, the handler pulls the dog and suspect back, and as soon as the suspect’s
hands are secure, the handler uses the “standard release” move which physically forces the dog to
7

release his grip on the suspect). (Id. at 67.)
Mr. Archuletta suffered a serious leg injury from Aldo’s bite. He was treated at the
hospital that day for deep puncture wounds, and that treatment was followed by two separate
surgeries on his leg.
ANALYSIS
Mr. Archuletta asserts that Officer Lovato entered the house and searched the crawl space
without a valid warrant or other legal justification, and that he used his dog in a manner that
constituted excessive force. He brings Section 1983 claims against Officer Lovato for illegal
entry, illegal search, and use of excessive force.5 He also brings a municipal liability claim

5

Mr. Archuletta asserts a separate tort claim of assault and battery against Officer Lovato.
The parties do not address that claim in their briefs, perhaps in part because UPD and Officer
Lovato are apparently immune under the Utah Government Immunity Act, Utah Code Ann.
§ 63G-7-101 et al. (UGIA), from liability for the tort claim. The UGIA “governs all claims
against governmental entities or against their employees or agents arising out of the performance
of the employee’s duties, within the scope of employment, or under color of authority,” with
limited (and inapplicable) exceptions. Utah Code Ann. § 63G-7-101(2)(b) (emphasis added).
The Unified Police Department is run by the Salt Lake County Sheriff’s Office, and was formed
by Salt Lake County, the Salt Lake County Sheriff’s Office, and certain municipalities in
unincorporated Salt Lake County. As such, it falls within the UGIA’s definition of
“governmental entity.” See Utah Code Ann. §§ 63G-7-102(3), -102(7) (defining “governmental
entity” as the State of Utah and its political subdivisions). Officer Lovato, as an employee of the
UPD who was acting within his scope of employment at the time of the incident, is also protected
by the UGIA. See §§ 63G-7-101(2)(b), -102(2)(a), -201(1).
Mr. Archuletta’s assault and battery claim fails for two reasons. First, nothing in the
record shows that he gave the requisite statutory notice to Officer Lovato or UPD under the
UGIA. Notice is required before the court has subject matter jurisdiction over the Mr.
Archuletta’s assault and battery claim. See Wheeler v. McPherson, 40 P.3d 632, 635 (Utah
2002) (strict compliance with UGIA notice requirements is necessary to give court subject matter
jurisdiction). Second, even if Mr. Archuletta gave sufficient notice, the UGIA does not waive
UPD’s or Officer Lovato’s immunity from suit for assault, battery, or violation of civil rights.
§§ 63G-7-201(1), -301(5)(b). Accordingly, the court dismisses Mr. Archuletta’s claim of assault
and battery.
8

against the Unified Police Department (UPD),6 contending that UPD is liable for having a faulty
policy on the use of police dogs and for failing to properly train Officer Lovato and Aldo. Mr.
Archuletta further states that UPD’s failure was grossly negligent and exhibited deliberate
indifference to his rights.
In response, Officer Lovato contends that he is entitled to qualified immunity because he
did not violate any of Mr. Archuletta’s constitutional rights, but even if he did, his actions were
objectively reasonable and not prohibited by clearly established case law. Officer Lovato
alternatively asserts that even if he is not entitled to qualified immunity, he is entitled to
summary judgment “because Mr. Archuletta’s choice to remain hidden rather than surrender after
multiple warnings was an intervening cause of his injuries.” (Defs.’ Reply (Docket No. 46) at
iii.)
UPD, in its defense, asserts that it is not liable under Section 1983 because Mr.
Archuletta’s constitutional rights were not violated. It further contends that even if Officer
Lovato violated Mr. Archuletta’s constitutional rights, Mr. Archuletta has not submitted evidence
of any offending policy or evidence that the alleged policy (or purported failure to train) caused
the alleged constitutional violation.

6

In addition to his Section 1983 municipal liability claim, Mr. Archuletta asserts a claim
of respondeat superior against UPD. Political subdivisions of the state (such as UPD) are not
liable under the doctrine of respondeat superior for actions of their employees, particularly in the
case of alleged assault and battery. See Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011)
(holding that local governments “are not vicariously liable under § 1983 for their employees’
actions.”) (citing Monell v. NYC Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)); Utah Code
Ann. § 63G-7-301(5)(b) (retaining immunity from suit for injuries arising out of assault and
battery). Accordingly, the court dismisses Mr. Archuletta’s Section 1983 claim under the theory
of respondeat superior.
9

For the reasons set forth below, the court finds that (1) Officer Lovato is entitled to
qualified immunity because no constitutional violation occurred;7 and (2) Defendant Unified
Police Department is not liable under Section 1983 because (a) no constitutional violation
occurred; and (b) Mr. Archuletta has not presented evidence of the existence of an offending
policy or failure to train, much less causation.
Qualified Immunity
Qualified immunity “provides ‘immunity from suit rather than a mere defense to
liability.’” Mecham v. Frazier, 500 F.3d 1200, 1203 (10th Cir. 2007) (quoting Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985)). The doctrine shields law enforcement officers from civil

7

Officer Lovato contends that even if he is not entitled to qualified immunity, a finding of
liability is still foreclosed because certain events superseded Officer Lovato’s alleged tortious
acts. (See Defs.’ Reply at iii.) But the manner in which Officer Lovato is attempting to apply the
superseding causation rule does not translate well in the circumstances here.
A superseding cause may relieve a defendant of liability under Section 1983. Trask v.
Franco, 446 F.3d 1036, 1046 (10th Cir. 2006). But that rule only applies when another act
intervenes after the officer’s conduct has occurred and breaks the chain of causation. Id. That
chain of causation (the reasonably foreseeable intervening events) is broken when there is an
“unforeseen and abnormal intervention.” Warner v. Orange County Dep’t of Probation, 115 F.3d
1068, 1071 n.2 (2d Cir. 1997) (internal quotation marks and citations omitted). Nothing that
occurred in this case fits into that category.
Officer Lovato maintains that “Mr. Archuletta’s choice not to surrender, to hide with
Maestas, and to remain hiding despite public announcements that a police dog would be sent in
were superseding causes to his injuries.” (Pl.’s Mem. Supp. Mot. Summ. J. at xi.) But those
decisions and the corresponding actions are not intervening events, because they occurred before
Officer Lovato arrived at the house.
Moreover, the act allegedly occurring after Officer Lovato sent Aldo into the crawl
space—the movement of Mr. Archuletta—was reasonably foreseeable. A defendant in a Section
1983 suit is “responsible for the natural consequences of his actions.” Malley v. Briggs, 475 U.S.
335, 344 n.7 (1986); see also Warner, 115 F.3d at 1072 (a § 1983 defendant is “liable for
consequences caused by ‘reasonably foreseeable intervening forces.’”). It is completely
foreseeable that a person in hiding might move when approached by a police dog and that the dog
would bite that person, as it was trained to do. For the reasons set forth above, Officer Lovato’s
causation analysis is not persuasive.
10

liability for discretionary actions if “their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982).8
Generally, summary judgment is appropriate if the movant shows that “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(a). Because Officer Lovato raises the defense of qualified immunity, Mr.
Archuletta, the non-movant, bears the burden of demonstrating that the law was clearly
established at the time the conduct occurred and that evidence supports a finding that Officer
Lovato violated that clearly established law. Powell v. Mikulecky, 891 F.2d 1454, 1457 (10th
Cir. 1989); Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 645 (10th Cir.
1988). Only after Mr. Archuletta has satisfied his burden does Officer Lovato “assume the
normal burden of a movant for summary judgment of establishing that no material facts remain
in dispute that would defeat . . . his claim of qualified immunity.” Powell, 891 F.2d at 1457.
Regardless of burden shifting, the court must view the facts in a light most favorable to the nonmoving party. See Lundstrom v. Romero, 616 F.3d 1108, 1118 (10th Cir. 2010); Buck v. City
of Albuquerque, 549 F.3d 1269, 1279 (10th Cir. 2008).
Claim of Illegal Entry
Officer Lovato, who arrived at the scene ten to fifteen minutes after other officers had
entered the house, was entitled to rely on the representations and acts of the officers. “[P]olice
officers may ordinarily rely on determinations made by other officers regarding the constitutional

8

The court may choose the order in which to analyze the “clearly established” and
“constitutional violation” issues. Pearson v. Callahan, 555 U.S. 223 (2009).
11

legitimacy of police procedures.” Marshall v. Columbia Lea Reg’l Hosp., 345 F.3d 1157, 1180
(10th Cir. 2003). So even if the underlying entry was unconstitutional, Officer Lovato’s
reasonable reliance entitles him to qualified immunity.
In Baptiste v. J.C. Penney Co., 147 F.3d 1252 (10th Cir. 1998), the Tenth Circuit
addressed an officer’s contention that she was entitled to qualified immunity because she
reasonably relied on another officer’s determination of probable cause to arrest when she
conducted a pat-down search. Noting that the officer arrived at the scene after the suspect had
been arrested, the court stated that “even if qualified immunity does not apply to the seminal
event [i.e., the arrest and detention],” the officer who arrived at the scene after the arrest “is
independently entitled to qualified immunity if her pat-down search did not violate [the
plaintiff’s] right to be free from a search absent a lawful arrest.” Id. at 1260. The Tenth Circuit
in Baptiste emphasized that “[p]olice work often requires officers to rely on the observations,
statements, and conclusions of their fellow officers. An officer who is called to the scene to
conduct a search incident to arrest is not required to reevaluate the arresting officer’s probable
cause determination in order to protect herself from personal liability.” Id. See also Whiteley v.
Warden, Wyo. State Penitentiary, 401 U.S. 560, 568 (1971) (“Certainly police officers called
upon to aid other officers in executing arrest warrants are entitled to assume that the officers
requesting aid offered the magistrate the information requisite to support an independent judicial
assessment of probable cause.”).
The situation here is similar to the one addressed in Baptiste. Officer Lovato was called
to the scene after crucial events had occurred.
The officers who requested Officer Lovato’s assistance had, at that time, already entered
12

the house. South Salt Lake police officers had already arrested Mr. Maestas and were attempting
to determine whether another person was in the crawl space. When Officer Lovato arrived at the
house, officers were already inside the house and in the yard. An officer in the yard told him he
was needed inside. When he went inside the house, another officer directed him to the loft.
When he arrived at the loft, the officers said they believed, although they were not sure, that
another person associated with the rape suspect was hiding in the crawl space and that they
needed Aldo’s assistance to confirm their suspicions. The officers waiting for him in the loft
conveyed their safety concerns. And it was apparent to Officer Lovato that, if an officer were to
go into the crawl space without knowing what awaited, the officer would be in considerable
danger.
None of the circumstances faced by Officer Lovato would have given him any reason to
question the situation or his fellow officers’ request. As he said during his deposition, “I relied
on the officers on the scene, just based on what they were asking me to do, that they were going
to continue to be in the house and that the attic needed to be cleared. And I was there to support
them with my K9.” (Lovato Dep. at 80-81.) He was not in a position to question the officers’
presence in the house, nor should he be held liable for failing to do so.
For the foregoing reasons, the court finds that Officer Lovato had no reason to believe
that he was in the house illegally. Accordingly, he is entitled to qualified immunity from Mr.
Archuletta’s illegal entry claim.
Claim of Illegal Search
Officer Lovato contends that he conducted a protective sweep when he sent Aldo into the
crawl space. “A protective sweep is a cursory, limited search of a residence or other premises for
13

the sole purpose of securing officers’ safety during an arrest or investigation.” Fishbein v. City
of Glenwood Springs, Colo., 469 F.3d 957, 961 (10th Cir. 2006). Under this exception to the
warrant requirement,
[p]olice are permitted to search a premises without judicial pre-authorization
when they reasonably believe, on the basis of articulable facts, that they face an
imminent threat to their personal safety or that the safety of third parties is
imminently threatened. Maryland v. Buie, 494 U.S. 325, 327, 110 S. Ct. 1093,
108 L. Ed. 2d 276 (1990). Further, the search must not be motivated by an intent
to arrest or seize evidence. Id. at 326 (“Such a protective sweep is not a full
search of the premises, but may extend only to a cursory inspection of spaces
where a person may be found.”); see Roska v. Peterson, 328 F.3d 1230, 1240
(10th Cir. 2003) (holding that a search motivated by exigent circumstances is
lawful only when not motivated by intent to arrest or seize evidence).
Fishbein, 469 F.3d at 961 (emphasis added). The sweep should be “no longer than is necessary
to dispel the reasonable suspicion of danger.” Maryland v. Buie, 494 U.S. 325, 335-36 (1990).
To successfully rely on the protective sweep exception, Officer Lovato “must articulate
specific facts, ‘which, taken together with the rational inferences from those facts, would warrant
a reasonably prudent officer in believing that the area to be swept harbors an individual posing a
danger to those on the arrest scene.’ [Maryland v. Buie, 494 U.S. 325, 334 (1990).]” Fishbein,
469 F.3d at 962 (internal citation omitted). Officer Lovato has done so.
According to the record (as seen from the point of view of a reasonable officer arriving at
the scene after an entry and arrest have occurred), the officers found and arrested a rape suspect
in the house. That suspect had been hiding in the attic crawl space.
Officer Lovato did not know the circumstances of the rape allegations, including whether
the alleged rape had just occurred and whether the house was the alleged crime scene. Nothing
in the record contradicts the reasonable inference that the officers were there to investigate a

14

crime scene. In addition, the presence of multiple officers reasonably suggested to Officer
Lovato that an investigation was about to begin or was ongoing, and so a sweep of the house to
secure the space for the officers was necessary.
The officers expressed concerns to Officer Lovato that another person might be hiding in
the attic, but they also expressed uncertainty. The officers had drawn their guns at the entrance to
the crawl space, a signal that they were concerned for their safety. That visual signal, which
would have been apparent to Officer Lovato or anyone else arriving on the scene at that moment,
was confirmed by officers’ expressions to Officer Lovato about their safety concerns. The
officers specifically told Officer Lovato that they requested his assistance because they believed
that the crawl space needed to be cleared and that they needed a dog, not an officer, to do it.
The fact that the officers told Officer Lovato that anyone they found in the attic would be
charged with felony obstruction does not change the court’s analysis. The record shows that the
officers were not sure that the attic contained another person. They were surmising that any
person hiding in the same space where the rape suspect had been found would have been
harboring the suspect. This does not mean they were seeking to arrest Mr. Archuletta. They did
not know whether anyone, much less a particular individual, was in the attic. And Officer
Lovato had no reason to discount the officers’ assessment of the scene. The search of the crawl
space was not driven by the intent to extract and arrest a suspect who had been accused of felony
obstruction. The officers, by calling Officer Lovato and his police dog to the scene, were
motivated by a desire to clear the space.
Furthermore, the search was limited to the crawl space. The officers reasonably focused
on that area because that is where the rape suspect, Mr. Maestas, had hidden.
15

And although at least ten to fifteen minutes passed before the search of the crawl space
occurred, the passage of time is easily explained by the unique problem the crawl space presented
and the need to wait for a patrol dog. There is no evidence that any other search was occurring in
the house. And as soon as Officer Lovato and Aldo arrived, they swept the crawl space. Use of a
police dog, and the unavoidable delay to wait for the dog to arrive, was “necessary to dispel the
reasonable suspicion of danger.” Maryland v. Buie, 494 U.S. 325, 335-36 (1990).
The officers were facing an unknown. If another person was hiding in the crawl space, it
was reasonable to infer that the person was allied with the rape suspect. If that individual was
armed and left alone, he could either shoot through the ceiling or walls or come out of hiding and
ambush the officers. As in Fishbein v. City of Glenwood Springs, Colo., 469 F.3d 957 (10th Cir.
2006), Officer Lovato “relied on various bits of circumstantial evidence to inform [his] judgment
that a hostile party might be present.” Id. at 962 (describing the case as analogous to protective
sweep cases “where an accomplice is lurking on the premises” and recognizing “that
unaccounted-for third parties with access to firearms may present a grave danger to arresting
officers”). The case of United States v. Soria, 959 F.2d 855 (10th Cir. 1992), is also instructive.
In Soria, the appellate court affirmed the lower court’s finding that a warrantless search was a
protective sweep. There, the officers quickly searched an auto body shop associated with a
suspect who had been arrested nearby. The court held that the officers reasonably believed that
accomplices may have been hiding in the auto body shop and that they, if present, posed a danger
to the officers investigating the drug trafficking crime. Id. at 857.
Officer Lovato was there to assist in a situation the other officers had already assessed
was unsafe. He reasonably relied on the officers’ representations and the uncertainty of the
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situation. The Tenth Circuit noted that its protective sweep case law “requires officers to have
some articulable basis for their suspicion of danger – not certain knowledge.” Fishbein, 469 F.3d
at 963.
For all of these reasons, the court concludes that Officer Lovato’s search was not
motivated by an intent to arrest or gather evidence and that he engaged in a legal protective
sweep.
Claim of Excessive Force
The question of whether Officer Lovato, by releasing Aldo into the crawl space, used
excessive force on Mr. Archuletta9 is whether Officer Lovato’s actions were “‘objectively
reasonable’ in light of the facts and circumstances confronting [him], without regard to [his]
underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989), quoted in
Thomson v. Salt Lake County, 584 F.3d 1304, 1313 (10th Cir. 2009). “Reasonableness is
evaluated under a totality of the circumstances approach, which requires that [the court] consider
and balance the following factors: ‘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
arresting or attempting to evade arrest by flight.’” Thomson, 584 F.3d at 1313 (quoting Graham,
490 U.S. at 396). The court must determine the reasonableness of the use of force by looking at
the circumstances “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.

9

Mr. Archuletta filed an objection and motion to strike the declaration of Kenneth
Wallentine, who opines on the reasonableness of Officer Lovato’s use of Aldo. (See Docket No.
35.) The court does not need to consider Mr. Wallentine’s declaration to make its decision, and
so that motion is denied as moot.
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To begin, to the extent Mr. Archuletta suggests that the use of Aldo was unreasonable
deadly force (counsel for Mr. Archuletta asserted during the hearing that the case law is in
conflict about whether use of a police dog is deadly force), the court disagrees.10 Importantly, the
Tenth Circuit has expressly declined “to deem a police dog’s ability to bite and hold to be
sufficient to make [the dog’s] release, alone, an act of deadly force. To hold otherwise could
result in nearly every release of a police dog being considered deadly force.” Thomson v. Salt
Lake County, 584 F.3d 1304, 1315 (10th Cir. 2009). “Deadly force is such force that ‘create[s] a
substantial risk of causing death or serious bodily harm.’” Id. at 1314. The “bite and hold”
training of Aldo does not necessarily require a finding of a risk of serious bodily harm. “We see
no need to deprive police officers of the benefit of these useful tools (i.e., police dogs) solely
because they carry the potential to cause serious harm.” Id. at 1316.
Mr. Archuletta does not point to any case where the use of a police dog in the fashion
Aldo was used would rise to the level of deadly force. And he unsuccessfully attempts to inflate
the danger allegedly posed by Aldo by contending, without supporting evidence, that Aldo was
improperly trained. As in Thomson, 584 F.3d at 1316, such speculation does not support a
finding that the release of a “bite and hold” dog was use of deadly force.
Looking at the three Graham factors and the circumstances facing Officer Lovato, the
court concludes that the release of Aldo into the crawl space was not an excessive use of force.

10

The standard of reasonableness is heightened when analyzing the propriety of using
deadly force. “If a particular use of force is considered deadly force, then an officer’s use of that
force is reasonable only ‘if a reasonable officer in Defendants’ position would have had probable
cause to believe that there was a threat of serious physical harm to themselves or to others.’”
Thomson, 584 F.3d at 1314 (emphasis in original) (internal citations omitted).
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Felony obstruction is not a violent crime (the court does not believe that the analysis should
focus on the alleged rape, because Mr. Maestas was the only rape suspect and he was arrested
before Officer Lovato arrived). That factor does not weigh strongly in Officer Lovato’s favor.
But, as discussed above, the officers’ concerns were less about whether a person had obstructed
the apprehension of a rape suspect and more about whether an unknown person, if he was indeed
hiding in the crawl space, was armed and dangerous and posed a risk to the officers. It would be
unreasonable to expect the officers, who had just arrested a rape suspect who was attempting to
avoid arrest, to walk away with suspicions unresolved. And it would be unreasonable to expect
Officer Lovato to second-guess the officers’ safety assessment. He was summoned to do what he
is trained to do.
The crawl space was dark, had blind corners, and was cramped. The officers had already
found someone (the rape suspect) hiding there. If another person was hiding in the crawl space,
that person was also attempting to evade the police. As Officer Lovato testified, there was no
reasonable alternative to the use of Aldo to search the crawl space. Sending in an officer posed
too much danger.
There is no evidence that Aldo would not do what he was trained to do, but if he did not
follow his training at that particular moment, Officer Lovato could not have prevented it. Aldo
was trained and certified and Officer Lovato had positive experience with the dog. There is
nothing in the record to suggest that Aldo had strayed from his training before and so there was
nothing to concern Officer Lovato. Given Aldo’s unremarkable track record, a reasonable officer
would have reasonably expected the dog to follow his training. Accordingly, the release of Aldo
into the crawl space was reasonable under the circumstances.
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Claim of Municipal Liability
“A plaintiff suing a municipality under section 1983 for the acts of one of its employees
must prove: (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.” Myers
v. Okla. County Bd. of County Comm’rs, 151 F.3d 1313, 1318 (10th Cir. 1998) (citing Monell v.
Dep’t of Social Servs., 436 U.S. 658, 694 (1978)). The plaintiff must also demonstrate that the
municipality’s action amounted to “deliberate indifference to the rights of persons with whom the
police come into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989) (emphasis added),
quoted in Myers, 151 F.3d at 1318; see also Bd. of County Comm’rs of Bryan County v. Brown,
520 U.S. 397, 404 (1997) (“As our § 1983 municipal liability jurisprudence illustrates, . . . a
plaintiff must show that the municipal action was taken with the requisite degree of culpability
and must demonstrate a direct causal link between the municipal action and the deprivation of
federal rights.”) (emphasis added).
The court has already found that no constitutional right was violated. But even if Officer
Lovato had violated Mr. Archuletta’s constitutional rights, Mr. Archuletta does not provide any
evidence that UPD improperly trained, much less failed to train, Officer Lovato or Aldo. Mr.
Archuletta’s assertions about the need to track dog-bite ratios, which are not supported by any
expert witness testimony or facts, do not establish the existence of any offending policy that
would have been a moving force behind any constitutional right violation.
For these reasons, the court finds that the Unified Police Department is not liable to Mr.
Archuletta under Section 1983.

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ORDER
For the reasons set forth above, the court holds that Officer Lovato is entitled to qualified
immunity on Mr. Archuletta’s § 1983 claims of illegal entry, illegal search, and excessive force.
The court also holds that the Unified Police Department is not liable under Section 1983 for the
events that occurred on April 12, 2012. Accordingly, the Motion for Summary Judgment filed by
Defendants Unified Police Department and Officer Luis Lovato (Docket No. 31) is GRANTED.
In addition, because the court did not rely on the Declaration of Kenneth Wallentine to make its
decision, the Plaintiffs’ Motion to Strike that declaration (Docket No. 35) is DENIED AS
MOOT.
The Clerk of Court is hereby directed to close this case.
SO ORDERED this 14th day of October, 2014.
BY THE COURT:

TENA CAMPBELL
U.S. District Court Judge

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