Coronado et al v. Olsen et al
Filing
49
MEMORANDUM DECISION AND ORDER DENYING MOTION TO DISMISS IN PART-granting in part and denying in part 18 Motion to Dismiss for Lack of Jurisdiction ; granting in part and denying in part 18 Motion to Dismiss for Failure to State a Claim. See Order for details. Signed by Judge Clark Waddoups on 2/15/19. (jmr)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
FERNANDO CORONADO and
TABETHTHA CORONADO,
MEMORANDUM DECISION AND
ORDER DENYING MOTION TO
DISMISS IN PART
Plaintiffs,
vs.
Case No. 2:18-cv-83
K. OLSEN and JACOB HILL, West Valley
City Police Officers, and WEST VALLEY
CITY, a political subdivision,
Judge Clark Waddoups
Defendants.
Before the court is the motion to dismiss by the defendants K. Olsen, Jacob Hill, and
West Valley City (“Defendants”), which seeks to dismiss all claims that the plaintiffs, Fernando
Coronado and Tabeththa Corondao (“Plaintiffs”) have filed against them. The motion has been
fully briefed, and this court heard argument on the same on January 24, 2019. Having reviewed
the pleadings and materials submitted and considered the arguments of counsel, the court now
enters this order DENYING in part and GRANTING in part Defendant’s motion to dismiss.
BACKGROUND 1
On August 3, 2016, Tabeththa Coronado (“Mrs. Coronado”) and her husband, Fernando
Coronado (“Mr. Coronado”) were having marital difficulties. Am. Compl. at ¶¶ 13–14, ECF No.
3. On that date, Mr. Coronado was depressed, “inebriated, disorientated, and in emotional distress”
1
The facts presented herein are synthesized from Plaintiff’s amended complaint and video footage captured
by a body camera worn by one of the named defendants. This video is referenced in Plaintiffs’ amended complaint
(see ECF No. 3 at ¶ 36), was submitted to this court as an exhibit to Defendants’ motion to dismiss (see ECF No. 181), and was played in its entirety by both Plaintiffs and Defendants at oral argument on Defendants’ motion. As such,
this court may consider it without converting Defendants’ motion to dismiss into a motion for summary judgment.
and had threatened suicide, and Mrs. Coronado called 911 for assistance. Id. at ¶¶ 13–16, 24.
Officers from West Valley City’s Special Weapons and Tactics (“SWAT”) unit, including
Defendants K. Olsen and Jacob Hill (the “Defendant Officers”), responded to Plaintiffs’ residence,
a fourth floor apartment. Id. at ¶¶ 17–18. Plaintiffs’ apartment is accessed by an open-air cement
landing, and open-air stairwells are located on the landing’s north and south ends. Id. at ¶¶ 19, 34;
see also Footage of Coronado Encounter, ECF No. 18-1, at 0:00–0:26. Up to a dozen officers in
full armor and SWAT equipment positioned themselves on both stairwells. ECF No. 3 at ¶ 19.
Officers spoke to Mr. Coronado through his closed apartment door for a period of time, and
eventually Mr. Coronado exited his apartment and came out onto the landing. Id. at ¶ 18. When
Mr. Coronado exited this apartment, he wore only a pair of shorts; he was barefoot, naked from
the waste up, and clearly unarmed. Id. at ¶¶ 20, 22. Once Mr. Coronado exited his apartment, the
officers began giving him overlapping orders, which he did not follow. Id. at ¶¶ 21, 23–27; see
ECF No. 18-1 at 0:00–0:49. Mr. Coronado was never told that he was under arrest. ECF No. 3 at
¶ 28; see ECF No. 18-1 at 0:00–0:49.
While Mr. Coronado was conversing with officers positioned on the stairwell closest to his
apartment, the Defendant Officers came onto the landing via the opposite stairwell. See ECF No.
18-1 at 0:20–0:49. The Defendant Officers approached Mr. Coronado on the landing with their
Tasers out and ready to deploy. ECF No. 3 at ¶ 31; see ECF No. 18-1 at 0:20–0:49. The
overlapping events that commenced over the next five seconds serve as the basis for Plaintiffs’
amended complaint and govern Defendants’ motion to dismiss. See ECF No. 18-1 at 0:44–0:49.
Once the Defendant Officers were on the landing, Mr. Coronado turned to them and took
approximately three steps in their direction. 2 See ECF No. 18-1 at 0:44–0:49. As Mr. Coronado
2
As will be discussed more fully below, the nature of Mr. Coronado’s advance towards the officers is material
to this matter and is hotly disputed between the parties.
2
was taking those steps, the Defendant Officers ordered him to “get on the ground.” See ECF No.
18-1 at 0:45–0:47.
Mr. Coronado did not comply with the Defendant Officers’ first two
commands, and during the third recitation of the command, one of the Defendant Officers
deployed his Taser, which struck Mr. Coronado in the torso. See id.; see also ECF No. 3 at ¶ 71.
The other Defendant Officer deployed his Taser immediately thereafter, which also struck Mr.
Coronado in the torso. See ECF No. 18-1 at 0:47–0:48. Mr. Coronado collapsed and fell forward,
striking his head on the floor of the landing and a door. See ECF No. 18-1 at 0:47–0:49; see also
ECF No. 3 at ¶¶ 72–73. Mr. Coronado suffered serious injuries from the fall.
On February 21, 2018, Plaintiffs initiated this civil rights action against Defendants,
alleging excessive force and unconstitutional policies under 42 U.S.C. § 1983, flagrant violation
of rights under Article I, § 14 of the Utah Constitution, and loss of consortium. Defendants ask
this court to dismiss each of Plaintiffs’ claims.
LEGAL STANDARD
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Emps.’ Ret. Sys. of R.I. v.
Williams Cos., Inc., 889 F.3d 1153, 1161 (10th Cir. 2018) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Free Speech v. Fed. Election Comm’n, 720 F.3d 788, 792 (10th Cir. 2013) (quoting
Iqbal, 556 U.S. at 678). In assessing Defendants’ motion, this court must “accept as true ‘all
well-pleaded factual allegations in a complaint and view these allegations in the light most
favorable to the plaintiff.’” Schrock v. Wyeth, Inc., 727 F.3d 1273, 1280 (10th Cir. 2013)
(quoting Kerber v. Qwest Grp. Life Ins. Plan, 647 F.3d 950, 959 (10th Cir. 2011)).
3
DISCUSSION
A. The Defendants Officers’ use of force was not objectionably reasonable.
Claims of excessive force are evaluated using an objective-reasonableness standard,
where a court must ask “whether the officers’ actions are ‘objectively reasonable’ in light of the
facts and circumstances confronting them, without regard to their underlying intent or
motivation.” Graham v. Connor, 490 U.S. 386, 396–97 (1989). “The ‘reasonableness’ of a
particular use of force must be judged from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight” and “depends on whether the totality of the
circumstances justified the conduct at issue.” Id. at 396 (internal citations omitted). The
Supreme Court has instructed courts tasked with determining the reasonableness of officers’
actions to pay “careful attention to the facts and circumstances of each particular case” and has
provided three factors that should be considered in making the decisions: “the severity of the
crime at issue, whether the suspect poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id.
(citing Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)). Defendants assert that Plaintiffs’ claims
should be dismissed because as a matter of law, the Defendant Officers’ use of a Taser against
Mr. Coronado in this situation was objectively reasonable. This court disagrees.
On a motion to dismiss, this court must accept as true all of Plaintiffs’ well-pled factual
allegations and view those allegations in the light most favorable to Plaintiffs. See Schrock, 727
F.3d at 1280. Thus, for purposes of this motion, the court accepts Plaintiffs’ assertion that “[Mr.]
Coronado neither expressed nor exhibited any aggression toward the officers” and rejects
Defendants allegation that Mr. Coronado “aggressively lunged towards” the officers. Compare
ECF No. 3, at ¶ 37 with ECF No. 18, at p. 5, ¶ 10. Defendants attempt to minimalize the
importance of this distinction, asserting that “[u]ltimately, how the parties characterize [Mr.
4
Coronado’s] actions is not relevant to the motion. As shown in the video and alleged in the
Amended Complaint, [Mr. Coronado] moved towards the officers. That is all that is necessary
for the West Valley Defendants’ motion.” See Defs.’ Reply in Supp. of Mot to Dismiss, ECF
No. 29, at p. 5. This court refuses to find that as a matter of law, it is objectively reasonable for
officers to taser any suspect who moves towards them—such a broad sentiment does not pay
homage to “the facts and circumstances of [a] particular case.” See Graham, 490 U.S. at 396.
Rather, the reasonableness of the Defendant Officers’ conduct must be determined by analyzing
the specific facts and actions of this situation under the three Graham factors.
The first Graham factor concerns the severity of the crime at issue. See id. Defendants
assert that this factor weighs in their favor because Mr. Coronado was “a threat to himself and
others,” was “drunk, disoriented and mentally disturbed,” “had threatened suicide,” “refused to
comply with repeated instructions by officers to get on the ground and surrender,” and
“subsequently[] pled guilty to threatening with or using a weapon in a fight.” See ECF No. 18, at
p. 9. Clearly, it was not a crime for Mr. Coronado to be disoriented and mentally disturbed, nor
was it a crime for him to be drunk in his own home. Further, because reasonableness of force
“must be judged from the perspective of a reasonable officer on the scene,” only the knowledge
that the officers gained from Mrs. Coronado’s 911 call or from their observations on the scene
are relevant. See Graham, 490 U.S. at 396 (emphasis added). Mr. Coronado’s subsequent guilty
plea to threatening with a weapon could not have been known to the officers at the time they
tased Mr. Coronado and is therefore irrelevant to this analysis. While Mr. Coronado’s refusal to
comply with officers’ instructions may have amounted to a misdemeanor, this minor offense is at
least partially mitigated by the fact that during his interactions with Defendants, Mr. Coronado
was never told that he was under arrest. See ECF No. 3 at ¶¶ 28, 32. While threatening suicide
5
is a serious matter, it is not a crime, and the severity of this offense was diminished by the fact
that Mr. Coronado was clearly unarmed and had no means to actually commit suicide. See id. at
¶¶ 20, 22. Thus, the only crime the officers understood Mr. Coronado to have committed was his
failure to comply with orders. This did not warrant the force used by the Defendant Officers,
and the first Graham factor therefore weighs against Defendants.
The second factor requires this court to determine whether Mr. Coronado posed “an
immediate threat to the safety of the officers or others.” See Graham, 490 U.S. at 396. While
this issue is contested, on a motion to dismiss, this court must accept Plaintiffs’ assertion that Mr.
Coronado “neither expressed nor exhibited any aggression toward the officers.” ECF No. 3, at ¶
37. Defendants contest that this court is not required to accept Mr. Coronado’s assertion because
it is conclusory. The court does not find this statement to be conclusory, as it is supported by the
video of Defendants’ encounter with Mr. Coronado, at least insofar as the same is viewed in “the
light most favorable to the plaintiff.” 3 Thus, under this adoption of facts, it is clear that the
second Graham factor weighs in favor of Mr. Coronado. See Morris v. Noe, 672 F.3d 1185,
1196 (10th Cir. 2012) (finding that the second Graham factor “weighs heavily” in plaintiff’s
favor even though he ‘“walked toward the group of officers’ . . . which might present some
threat,” because he “carried no weapon, made no overt threats, and did not get within reach”).
The third Graham concerns whether Mr. Coronado was actively resisting arrest or
3
This video further shows that Defendants’ assertion that when Mr. Coronado “aggressively lunged towards
them,” they “had their backs to a railing and staircase, four floors above the ground” is exaggerated. First, while it is
clear that Mr. Coronado advanced towards the officers, the court questions whether any reasonable person would
definitively classify his movement as an “aggressive lunge.” Compare ECF No. 18, at p. 9 with ECF No. 18-1 at
0:44–0:49. Further, the video establishes that the Defendant Officers were approximately in the middle of the landing
when Mr. Coronado began advancing towards them and that their backs were far from being against the landing’s
railing or stairs at the time they deployed their Tasers. See ECF No. 18-1 at 0:44–0:49. While the nature of Mr.
Coronado’s advance and their presence on a fourth floor landing are factors that the Defendant Officers may have
considered in determining the risk Mr. Coronado posed, Defendants will not earn the dismissal of Plaintiffs’ claims
by exaggerating the factual support for those factors.
6
attempting to evade arrest by flight. He was not; Mr. Coronado was neither under arrest not told
that he was facing arrest. See ECF No. 3 at ¶ 28; see ECF No. 18-1 at 0:00–0:49. Further,
because officers were located on both stairwells leading to his apartment, there was nowhere for
Mr. Coronado to flee—his only option to avoid the officers was to re-enter is apartment, which
he never attempted to do. See ECF No. 3 at ¶ 19; see ECF No. 18-1 at 0:00–0:49. Nevertheless,
Defendants argue that Mr. Coronado was “actively resisting arrest” because he refused to comply
with repeated instructions to get on the ground. ECF No. 18 at p. 10. Defendants, however, fail
to cite to a single case that recognizes that an individual’s failure to immediately comply with an
order 4 constitutes active resistance of arrest. While the Tenth Circuit has indicated that a
suspect’s noncompliance with an officer’s command to halt, together with the fact that she “may
have had a knife[] and was intent on entering a house where her husband and other officers were
located” could have led a “reasonable officer [to] could conclude in those circumstances that her
resistance justified some level of force,” this is a far cry from the facts here. See Cavanaugh v.
Woods Cross City, 718 F.3d 1244, 1252 (10th Cir. 2013). Mr. Coronado was clearly unarmed,
had not exhibited any aggression toward the officers, and had but a moment or two to comply
with the officers’ commands before he was tased. See ECF No. 3, at ¶ 37; ECF No. 18-1 at
0:44–0:49. Mr. Coronado’s alleged resistance did not justify Defendants’ use of force.
Defendants assert that they used Tasers to subdue Mr. Coronado “rather than engage in a
physical battle on a fourth floor landing or risk being pushed down the stairs” and argue that a
ruling in Plaintiffs’ favor would require “officers to risk bodily injury from a physical
confrontation.” See ECF No. 18, at pp. 2, 10. While the court acknowledges the risk that
4
Less than four seconds elapsed between the time that Mr. Coronado took his first step toward the Defendant
Officers and the deployment of their Tasers. All commands were given in this window of time. See ECF No. 18-1 at
0:44–0:49.
7
officers face and the split-second nature of the decisions that they must make, it refuses to grant
Defendants’ request to find that as a matter of law it is objectively reasonable for an officer to
taser a suspect because he takes a couple of steps towards them. See ECF No. 29, at p. 5.
Rather, when the facts of this situation are viewed in the light most favorable to Plaintiffs and
analyzed under the three Graham factors, they do not justify the Defendants Officers’ use of
force. Defendants’ request to dismiss Plaintiffs’ claims on the basis that the Defendants
Officers’ use of force was objectionably reasonable is denied.
B. Plaintiffs have made a sufficient showing that Defendants are not entitled to
Qualified Immunity.
Defendants next assert that they are protected from Plaintiffs’ claims under a theory of
qualified immunity, and that those claims should therefore be dismissed. “Qualified immunity
not only protects public employees from liability, it also protects them from the burdens of
litigation.” Allstate Sweeping, LLC v. Black, 706 F.3d 1261, 1266 (10th Cir. 2013) (citing
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). “When a defendant asserts a qualified immunity
defense, the burden shifts to the plaintiff” to establish “that the defendant violated a
constitutional right” and “that the constitutional right was clearly established.” Cortez v.
McCauley, 478 F.3d 1108, 1114 (10th Cir. 2007) (internal citations omitted).
Mr. Coronado has a right under the Fourth Amendment to be free from excessive force.
The Defendant Officers’ use of Tasers against him “constitute[d] a severe intrusion on the
interests protected by the Fourth Amendment.” Cavanaugh v. Woods Cross City, 625 F.3d 661,
665 (10th Cir.2010). And because that use of force was not justified under the Graham factors,
it crossed the line into excessive force and constituted a violation of Mr. Coronado’s rights. See
id. at 666; Perea v. Baca, 817 F.3d 1198, 1204 (10th Cir. 2016). Mr. Coronado has therefore
satisfied Cortez’s first requirement of dissolving Defendants’ qualified immunity.
8
Under Cortez’s second requirement, “for a constitutional right to be clearly established,
the contours of the right must be sufficiently clear that a reasonable official would understand
that what he is doing violates that right.” Quinn v. Young, 780 F.3d 998, 1004–05 (10th Cir.
2015) (internal citations and quotations omitted). Mr. Coronado can make this showing by
“identifying an on-point Supreme Court or published Tenth Circuit decision that establishes the
unlawfulness of the defendant’s conduct” or by demonstrating that “‘the clearly established
weight of authority from other courts must have found the law to be as the plaintiff maintains.’”
Id. at 1005 (quoting Weise v. Casper, 593 F.3d 1163, 1167 (10th Cir. 2010)). While a case does
not need to be “directly on point,” to pass this test, “existing precedent must have placed the
statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011). Finally, the clearly established right “must be defined with specificity” and not “‘at a
high level of generality.’” City of Escondido, Cal. v. Emmons, 139 S. Ct. 500, 503 (2019)
(quoting Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018)). This need for specificity “is
especially important in the Fourth Amendment context, where . . . it is sometimes difficult for an
officer to determine how . . . excessive force[] will apply to the factual situation the officer
confronts.” Id. (quoting Kisela, 138 S. Ct. at 1153). Because “[u]se of excessive force is an area
of the law in which the result depends very much on the facts of each case . . . police officers are
entitled to qualified immunity unless existing precedent squarely governs the specific facts at
issue.” Id. (quoting Kisela, 138 S. Ct. at 1153). With these standards in mind, the court turns to
the facts at hand and the cases cited by the parties.
At the time Mr. Coronado was tased by the Defendant Officers, he was guilty of, at the
most, the non-violent misdemeanor offense of not complying with orders. He had not threatened
the Defendant Officers, and he was not attempting to resist arrest or flee. Under Tenth Circuit
9
precedent effective at the time of the facts here, it is “clearly established” that an officer violates
the Fourth Amendment when she “use[s] her Taser against a non-violent misdemeanant who
appeared to pose no threat and who was given no warning or chance to comply with the officer’s
demands.” See Cavanaugh, 625 F.3d at 666–67 (citing Casey v. City of Fed. Heights, 509 F.3d
1278, 1281–82 (10th Cir. 2007) (“Graham stablishes that force is least justified against
nonviolent misdemeanants who do not flee or actively resist arrest.”)).
In Cavanaugh, officers responded to a non-emergency call that Ms. Cavanaugh had left
her home after a domestic dispute “with a kitchen knife” and that she “had consumed alcohol and
pain medication.” Id. at 662–63. An officer encountered Ms. Cavanaugh outside of her home,
but she veered away from him and headed towards her front door. Id. at 663. The officer, who
was approximately six feet away from Ms. Cavanaugh, discharged his Taser into her back
“without warning.” Id. The court determined that the officers’ actions were objectionably
unreasonable under Graham, finding that 1) “to the extent Ms. Cavanaugh was suspected of any
crime, it was minor”; 2) “Ms. Cavanaugh did not pose an immediate threat to [the officer] or
anyone else at the scene”; and 3) “Ms. Cavanaugh was neither actively resisting nor fleeing
arrest,” as she “was not told that she was under arrest.” Id. Thus, under Cavanaugh, the
Defendant Officers were on notice that tasing a non-violent suspect who had only committed a
minor offense and was neither actively resisting arrest nor informed that he is under arrest
amounted to excessive force. See Lee v. Tucker, 904 F.3d 1145, 1150 (10th Cir. 2018)
(“Cavanaugh establishes that the use of a Taser without warning on a non-resisting misdemeant
violates the Fourth Amendment’s excessive force protections.”).
The facts of this case are also eerily similar to those of Cardall v. Thompson, 845
F.Supp.2d, 1182 (D. Utah 2012), and the disposition of that case therefore “squarely governs the
10
specific facts at issue” here. See Emmons, 139 S. Ct. at 503. In Cardall, officers responded to a
call that Mr. Cardall was having a psychiatric episode on the side of a highway. Cardall, 845
F.Supp.2d, at 1188. When officers arrived, Mr. Cardall was completely naked and refused to
comply with instructions. Id. He turned and advanced towards one of the officers, 5 who tased
him twice. Id. at 1188–89. Mr. Cardall was tased approximately forty-two seconds after officers
had first commanded him to get down, and he was never warned that he would be tased. Id. In
determining whether the officers’ use of force was excessive, this court noted that “[c]ase law on
tasings from the Tenth Circuit . . . stresses the importance of whether a warning was given before
the use of the taser” and that the Tenth Circuit and other courts “have stressed that an officer
should hesitate to deploy a taser when the subject is incoherent and he does not appear to
understand the officers’ commands.” See id. at 1191–92 (citations omitted). This court found
that Mr. Cardall “was tased although he was not guilty of any serious crime or attempting to
flee,” and that if all factual disputes are resolved in his favor, he “was not a threat to the officers
who impatiently tased him when, in his confusion, he was slow to comply with their demands.”
Id. at 1194. It ultimately held that “Tenth Circuit case law, as well as authority from other
jurisdictions, explicitly holds that tasing under similar circumstances violated clearly established
Fourth Amendment law.” Id. The similarity of Cardall’s facts to this situation—namely that
Mr. Coronado was clearly psychologically distressed and confused, had only committed a minor
offense, and was not a threat—put the Defendant Officers on notice that tasing him amounted to
excessive force in violation of his Fourth Amendment rights.
Defendants assert that Mr. Coronado’s continued failure to comply with the Defendant
Officers’ orders justified their use of force. However, the Tenth Circuit has also clearly
5
Like the parties here, the plaintiff and defendant in Cardall disagreed as to the nature of this advance.
Plaintiff asserted that he “took one small step” toward the officer, but defendants argue he “charged” at him. Id.
11
established that force can only be applied to a suspect who is actively resisting arrest, and that
force cannot be excessive. See Perea v. Baca, 817 F.3d 1198, 1204 (10th Cir. 2016) (“It is . . .
clearly established law in the Tenth Circuit that the use of disproportionate force to arrest an
individual who is not suspected of committing a serious crime and who poses no threat to others
constitutes excessive force.”) In Perea, officers were called to perform a welfare check on Mr.
Perea after he was involved in a verbal fight. Id. at 1201. They were informed that the
individual “suffered from mental illness” and “may have been on drugs,” but that he did not have
a weapon. Id. After chasing Mr. Perea on his bicycle, during which chase Mr. Perea violated
traffic offenses, officers “pushed Mr. Perea off his bicycle,” and a physical struggle broke out to
detain him. In the struggle, officers tased Mr. Perea ten times in a span of less than two minutes.
Id. The Tenth Circuit determined that the three Graham factors weighed against the officers’ use
of force, namely because 1) they had no suspicion that Mr. Perea “had committed a crime prior
to finding him,” 2) Mr. Perea was not a danger “to anyone other than himself before they
attempted to effect an arrest,” and 3) although the officers were entitled to use “some force
during the period in which [Mr.] Perea was resisting [arrest],” the actual force the officers used
was unreasonable and excessive. Id. at 1202–04. Perea therefore puts the Defendant Officers on
notice that force should not be used on a non-violent or non-threatening suspect unless that
suspect is actively resisting arrest, and even then, the force used should be no more than is
necessary to subdue the suspect. Thus, the Defendant Officers should have known that it was
excessive to taser Mr. Coronado when he did not pose a threat to their, or anyone else’s, safety,
was only guilty of refusing to comply with their orders, and was not actively resisting arrest.
Defendants offer a number of cases to support their argument that the Defendant
Officers’ use of their Tasers against Mr. Coronado was permissible, but in each the officers’ use
12
of force was justified because they were either threatened by or physically engaged with the
suspect. Material to the Eleventh Circuit’s holding in Draper v. Reynolds, 369 F.3d 1270, 1273
(11th Cir. 2004) was the fact that the officer interpreted the plaintiff’s actions as “threatening”
and put him “on the defensive.” 6 Similarly, in Brown v. Cwynar, 484 F. App’x 676, 680 (3rd
Cir. 2012), while the Third Circuit held that the officers did not use excessive force in tasing the
suspect, it noted that the force was applied after the officer “had been informed by two dispatch
calls that a police officer was in need of assistance” and after “he personally observed [the
suspect] scuffling with police officers in a car.” In Holgers v. South Salt Lake, 2013 WL
6155298, *8 (D. Utah Nov. 22, 2013), this court found that use of a Taser was appropriate, at
least in part because the suspect “presented a risk of harm to the officers.” Finally, in Youngquist
v. Board of County Commissioners for Curry County, New Mexico, 2016 WL 9725196, *6 (D.
N.M. Dec. 13, 2016), the District Court for the District of New Mexico found that the officer’s
use of a Taser was reasonable after the suspect “resisted less forceful attempts to induce
compliance.” Here, Mr. Coronado neither threatened nor physically engaged with the Defendant
Officers. As such, the cases cited by Defendants are materially distinguishable and do not
establish as a matter of law that the Defendant Officers’ use of force was permissible. Rather, on
August 3, 2016, it was clearly established in the Tenth Circuit, and the Defendant Officers
should have known, that tasing a non-violent suspect who was not actively resisting arrest and
was only guilty of failing to comply with orders constituted excessive force. The Defendants are
not entitled to qualified immunity.
C. Plaintiffs’ State Law Claims Are Dismissed.
Finally, Defendants argue that Plaintiffs’ state law claims should be dismissed because
6
The Tenth Circuit has even distinguished this case, stating “[w]e are not sure that we would have come to
the same conclusion on those facts . . . .” See Casey v. City of Fed. Heights, 509 F.3d 1278, 1286 (10th Cir. 2007).
13
Plaintiffs have failed to comply with the notice requirements of the Governmental Immunity Act
of Utah and because they fail as a matter of law. Because the Defendant Officers’ actions were
not objectionably reasonable, the Plaintiffs’ state law claims do not fail as a matter of law.
Plaintiffs argue that because his state law claim of excessive force arises from a self-executing
constitutional clause, he is not required to comply with the notice requirement of the
Governmental Immunity Act of Utah. The court agrees. 7 See Heughs Land, L.L.C. v. Holladay
City, 2005 UT App 202, ¶ 7, 113 P.3d 1024.
However, that claim is nevertheless dismissed because Mr. Coronado has an alternative
remedy to redress his injury. Under Utah law, “there is no express statutory right to damages for
one who suffers a constitutional tort,” and as such, “a Utah court’s ability to award damages for
[a] violation of a self-executing constitutional provision rests on the common law.” Spackman v.
Board of Educ. of the Box Elder County Sch. Dist., 2000 UT 87, ¶ 20, 16 P.3d 533. Because
Utah law only permits damages for constitutional violations “under appropriate circumstances,”
a plaintiff attempting to recover such damages must establish three specific elements before
proceeding with a private suit for damages for violation of a self-executing constitutional
provision: (1) that he or she suffered a flagrant violation of his or her constitutional rights; (2)
that existing remedies do not redress his or her injuries; and (3) that equitable relief, such as an
injunction, was and is wholly inadequate to protect the plaintiff's rights or redress his or her
injuries. See id. at ¶¶ 22–25.
Because Mr. Coronado’s state law claim for excessive force under Article 1, Section 14
of the Utah Constitution mirrors his federal claim for excessive force under 42 U.S.C. § 1983—
7
The parties disagree as to whether the fact that Mrs. Coronado’s loss of consortium claim is derivative
means that it also cannot be limited by the Governmental Immunity Act of Utah. Because the court determines that
Mrs. Coronado’s claim should be dismissed on other grounds, this decision need not resolve that dispute.
14
he claims the same damages for the state causes of action as he does for his § 1983 claim—he
cannot establish that existing remedies do not provide redress for his injuries. As such, under
Spackman, Mr. Coronado’s state-law claim for excessive force must be dismissed.
This dismissal also requires that Mrs. Coronado’s state law claim of loss of consortium
be dismissed. Under UTAH CODE § 30-2-11(5), a “spouse’s action for loss of consortium shall be
derivative from the cause of action existing in behalf of the injured person and may not exist in
cases where the injured person would not have a cause of action.” Because Mrs. Coronado’s
claim is tied to Mr. Coronado’s state law injury claim, it cannot survive the latter’s dismissal.
CONCLUSION
For the reasons stated above, the court DENIES in part and GRANTS in part
Defendant’s motion to dismiss (ECF No. 18). Plaintiffs’ state law claims of “Loss of
Consortium” under and “Flagrant Violation of Rights” are dismissed, and Defendants have 14
days from the date of this order to answer the remaining claims of Plaintiffs’ amended complaint,
after which the timelines and requirements of the District of Utah Local Rules will take effect.
DATED this 15th day of February, 2019.
BY THE COURT:
_________________________________
Clark Waddoups
United States District Judge
15
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