Estate of Chad Alexander Burnett v. City of Colorado Springs et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 21-cv-1708-WJM-MDB
ESTATE OF CHAD ALEXANDER BURNETT,
Plaintiff,
v.
CITY OF COLORADO SPRINGS;
JOSEPH DAIGLE, in his individual capacity;
MICHAEL INAZU, in his individual capacity;
MATTHEW FLEMING, in his individual capacity; and
CAROLINE BARTH, in her individual capacity,
Defendants.
ORDER DENYING INDIVIDUAL DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
The Estate of Chad Alexander Burnett (“the Estate”) brings this action under 42
U.S.C. § 1983 for alleged violations of Burnett’s constitutional rights against Officer
Joseph Daigle, Sergeant Michael Inazu, Officer Matthew Fleming, and Officer Caroline
Barth individually (the “Officers” or the “Individual Defendants”) and the City of Colorado
Springs (the “City”) (collectively, “Defendants”).
Before the Court is the Individual Defendants’ Motion for Summary Judgment
(“Motion”). (ECF No. 77.) The Estate filed a response. (ECF No. 89.) The Officers
filed a reply. (ECF No. 101.) For the reasons explained below, the Motion is denied in
its entirety.
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I. BACKGROUND 1
A. 	Officers Respond to 911 Call
At approximately 9:55 a.m. on May 24, 2020, the Colorado Springs Police
Department (“CSPD”) received a 911 call concerning a “weapons display” involving
Burnett. (ECF No. 89 at 9 ¶ 1.) The 911 call was placed by Burnett’s elderly neighbors.
(ECF No. 77 at 1 ¶ 2.) At approximately 9:58 a.m., CSPD dispatched Officers Mathew
Fleming and Joseph Daigle to the Broadmoor neighborhood where Burnett resided. (Id.
at 2 ¶¶ 3-4; ECF No. 89 at 9 ¶ 1.)
When Officers Fleming and Daigle arrived on scene, Burnett was inside his
home. (ECF No. 89 at 9 ¶ 2.) They first spoke with a Broadmoor Information and
Security (“BIS”) officer who told them that, that morning, Burnett had approached a
neighbor, raised a knife over his head, and threatened him. (ECF No. 77 at 2-3 ¶¶ 6,
12; ECF No. 89 at 2 ¶ 12.) The BIS officer said it had been an “ongoing situation” with
Burnett, who had “some family dispute issues.” (ECF No. 77 at 2 ¶¶ 6, 11.) As the BIS
officer put it, the “entire complex ha[d] been harassed by [Burnett] for the last two
months” and two residents were seeking a restraining order against Burnett. (Id. at 2
¶ 11.) The BIS officer told Officer Fleming that no one else was in the house with
Burnett but cautioned that Burnett possibly had firearms in his house. (Id. at 3 ¶ 13;
ECF No. 89 at 9 ¶ 3.)
Sergeant Michael Inazu joined Officers Fleming and Daigle on scene shortly after
1 The following factual summary is based on the parties’ briefs on the Motion and
evidence submitted in support thereof. The facts set forth herein are undisputed unless
attributed to a party or source. All citations to docketed materials are to the page number in the
CM/ECF header, which sometimes differs from a document’s internal pagination.
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their arrival. (ECF No. 77 at 2 ¶ 7.) Sergeant Inazu was aware that a Crisis Response
Team (“CRT”)—comprised of a mental health clinician, medically trained firefighter, and
police officer—had been to Burnett’s residence on a prior occasion, and that Burnett
had refused services and/or refused to communicate with CRT. (Id. at 2 ¶¶ 8-9.)
Sergeant Inazu was also aware that there had been prior calls for service and a Be-On-
The-Look-Out (“BOLO”) associated with Burnett and his address. (Id. at 3 ¶ 14.)
After speaking with the BIS officer, Officer Daigle interviewed three of Burnett’s
neighbors: John Shaw, Carolyn Shaw, and Linda Silver. (Id. at 3 ¶ 15.) They informed
Officer Daigle that the incident began when neighbors saw Burnett’s dog roaming the
neighborhood alone. (Id.) Silver retrieved the dog from an unidentified neighbor and
took her to the Shaws’ house, who she believed to have a good relationship with
Burnett. (Id.) Around the same time that Silver was delivering the dog to the Shaws,
Burnett approached. (Id. at 3 ¶ 16.) Burnett tried to hand Shaw “a stack of valuable
family items” which he declined to accept. (Id. at 3 ¶¶ 16-17.) Burnett became upset,
pulled out a knife, raised it over his head, and threatened Shaw. (Id.) While Officer
Daigle was interviewing the neighbors, Officer Fleming observed Burnett throwing items
out of his house. (Id. at 3 ¶ 18.)
At approximately 10:29 a.m., Sargeant Inazu and Officer Fleming approached
Burnett’s front door. (ECF No. 89 at 3 ¶ 4.) According to the Officers, Burnett came to
the front door with a beer in hand. (ECF No. 77 at 3 ¶ 19.) Burnett told them, among
other things, that he was a Roman Catholic priest, a member of the Dutch army, and a
member of Van Halen. (Id. at 4 ¶ 22.) Sergeant Inazu and Officer Fleming asked
Burnett to open the door, let them come in, or to come out and talk to them
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approximately 45 times during this exchange. (ECF No. 89 at 9 ¶ 5.) Burnett
repeatedly declined to do so. (Id. at 9 ¶ 6.) At some point, Burnett picked up and
opened one of two retractable knives sitting on his entryway table. (ECF No. 77 at 4
¶ 20.) The Officers’ briefing also suggests that Burnett had switched to drinking Scotch
by the end of their interaction. (Id. at 4 ¶ 24.) Believing his behavior to be escalating,
Sergeant Inazu and Officer Fleming eventually decided to end the interaction with
Burnett. (Id.)
After leaving Burnett’s property, Sergeant Inazu and Officer Daigle discussed
whether they had probable cause to arrest Burnett for felony menacing. (Id. at 4 ¶ 25.)
At that time, they decided they did not. (Id.) Sergeant Inazu and Officer Fleming then
reapproached Burnett’s front door. (Id. at 4 ¶ 26.) They again asked Burnett to come
out and told him they were going to ticket him in an effort to coerce him to do so. (Id. at
4 ¶ 26; ECF No. 89 at 11 ¶ 18.) Burnett again refused, and the Officers left the
property. (ECF No. 77 at 4 ¶ 26.) Based on the parties’ citations to the relevant video
evidence, this initial interaction appears to have lasted approximately 20 minutes. (See
ECF No. 89 at 9 ¶ 5; ECF No. 77 at 4 ¶ 26.)
Sergeant Inazu then went to speak with the Shaws, from which he learned that
Burnett’s alleged crime happened on the Shaws’ property. (ECF No. 77 at 4 ¶ 27; ECF
No. 89 at 9 ¶ 9.) The Officers seemingly then convened in the cul-de-sac around
Burnett and his neighbors’ homes. (ECF No. 77 at 4 ¶ 27.) As they stood there,
Burnett reemerged from his house. (Id. at 4-5 ¶ 28.) The Officers state he threatened a
neighbor who was walking by with her dog, threw knives of out of his house, and
threatened the Officers with a dowel rod. (Id.) Burnett also instructed the Officers to get
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off his property (ECF No. 89 at 9 ¶ 7) and, at some point, called 911 to demand that the
Officers get off his property. (Id. at 9 ¶ 8.)2 The Estate contests that Burnett made any
threat, noting, for instance, that Officer Fleming can be heard stating in the body-worn
camera (“BWC”) footage that Burnett was shouting “random nonsense” and that he
perceived the “dowel rod” to be a “stick.” (ECF No. 89 at 3 ¶ 28.) Moreover, when
Sergeant Inazu asked Officer Fleming whether Burnett threatened him, Officer Fleming
responded: “Eh. He told me to get off his property or he was gonna . . . I don’t know
exactly what he said. Mostly just to get off his property.” (Id.)
After Burnett ran back into his house, the Officers collected the knives from
Burnett’s front yard before again exiting the property. (ECF No. 77 at 5 ¶ 29.) Officer
Daigle and Officer Fleming then recontacted Maytag at her house and explained their
charging decision. (Id. at 5 ¶ 30.) Maytag expressed shock over the Officers’ inability to
arrest Burnett and concern that Burnett would eventually come out with a gun and kill
someone. (Id.) The conversation with Maytag was again interrupted when Burnett
exited his house “ranting.” (Id. at 5 ¶ 31.) The parties dispute whether Burnett had a
“fire poker in hand” when he did so. (Id.; ECF No. 89 at 3 ¶ 31.)
B. 	Officers Reevaluate Probable Cause
Sergeant Inazu and Officers Fleming and Daigle again convened in the cul-de-
sac near Maytag’s driveway, where they “discussed their understanding of the
underlying interaction and, specifically, the location of the incident.” (ECF No. 77 at 5 ¶
33.) At this point, the Officers had been on scene for approximately one hour. (ECF
2 According to the Officers, Burnett told the 911 dispatcher that there were fake police
trying to evacuate a Chad Burnett, but he was Chad Borchert. (ECF No. 101 at 2 ¶ 8.)
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No. 89 at 10 ¶ 11.)
Sergeant Inazu told Officers Fleming and Daigle:
We’re pretty much at hot pursuit to a certain extent.
Although this has been somewhat of a stalemate, so I don’t
think we can articulate it as well. I told him he’s going to be
under arrest for something. He’s obstructing it with the
doorway. We’ve got a million different ways we can go with
this. I think we’ve got time. I don’t think we need to go hit
the door right now and grab him, but at the same time, I think
he’s coming with us.
(Id.) Sergeant Inazu instructed Officers Fleming and Daigle to conduct separate
interviews of the Shaws “to better understand the incident between Burnett and the
Shaws.” (ECF No. 77 at 5 ¶ 35.) He emphasized the significance of finding probable
cause for felony menacing: “[I]f we do [find probable cause], that absolutely changes
the game in how our approach is going to be with [Burnett].” (Id. at 5 ¶ 34.) Sergeant
Inazu and Officers Fleming and Daigle agreed that they would use a taser on Burnett as
soon as he was within 21 feet. (ECF No. 89 at 10 ¶ 15.) Sergeant Inazu added:
I would love to say we have some sort of hot pursuit. He’s
been told he’s under arrest and then we kind of . . . move on
him, and then he retreats back into the house. But I think
because of the time we’ve been here, the courts would not
look too happily upon that because we’ve kind of established
a status quo for our interaction with him. So, I think all said
and done, we’re probably going to need to get a warrant to
go in there and grab him if he doesn’t fall prey to one of our
tricks. So, we are probably going to be here a while.
(Id. at 10 ¶ 16.)
While Officers Fleming and Daigle were interviewing the Shaws, Sergeant Inazu
repositioned his patrol vehicle in the middle of the cul-de-sac and readied his shotgun
and ballistic shield. (Id. at 6 ¶ 36.) He also requested one additional police unit under
“Code 4.” (Id.; ECF No. 89 at 12 ¶ 29.) “Code 4” indicates there is not an immediate or
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imminent threat. (ECF No. 77-19 (Barth Dep.) at 37:3-19.)
As Sergeant Inazu prepared to arrest Burnett, Burnett again exited his house
with a bicycle and engaged Sergeant Inazu in conversation. (ECF No. 77 at 6 ¶ 37.)
Burnett told him, “I’m not a criminal.” (Id.) He then pushed the bicycle into the front
yard and picked up a knife but dropped it after Sergeant Inazu asked him to do so. (Id.
at 6 ¶ 38.) Burnett then ran back into his house. (Id.) Sergeant Inazu moved the bike
Burnett had left outside closer to the street, hoping to coerce Burnett into coming out of
his house by moving his bicycle further away from the door. (Id. at 6 ¶ 39; ECF No. 89
at 11 ¶ 17.)
A short time later, Officer Caroline Barth arrived on scene. (ECF No. 77 at 6
¶ 41.) Sergeant Inazu instructed her to be on the left of Burnett’s house and to have her
taser ready if Burnett came out of the house. (ECF No. 89 at 11 ¶ 19.) By that time,
Officer Fleming had completed his interview with Carolyn Shaw. (Id. at 7 ¶ 44.) He
learned that, when Burnett approached, Carolyn Shaw and Silver met Burnett two feet
into the cul-de-sac, near the mailboxes. (Id. at 6-7 ¶ 43) When they declined the items
Burnett had attempted to hand to them, Burnett became angry and threw them. (Id.)
He then walked over to Maytag’s house and threw something at her window, breaking it.
(Id.) John Shaw began to pick up the items Burnett had thrown down from a flowerbox
on his property. (Id.) Burnett pulled out a knife from his pocket, raised it up and told
John Shaw, who was crouched down, “I’m going to kill you.” (Id.) Based on this, Officer
Fleming informed Sergeant Inazu that he believed probable cause existed for felony
menacing. (Id.)
C. 	Warrantless Entry
As the three officers spoke in the cul-de-sac, Burnett stepped outside his front
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door and onto his front porch. (ECF No. 89 at 12 ¶ 31.) At that point, it had been
approximately an hour and a half since the Officers first arrived on scene. (Id.) Burnett,
now wearing a Toronto Maple Leafs sweatshirt, told Sergeant Inazu that he played for
the team. (ECF No. 77 at 7 ¶ 48.) Sergeant Inazu asked Burnett if he could see his
shirt as he began to approach the house, telling Burnett to “[c]ome on over.” (Id. at 7
¶ 49; ECF No. 89 at 12 ¶ 32.) Officers Fleming and Daigle followed Sergeant Inazu up
the driveway, and Officer Barth approached from the house to the left. (ECF No. 77 at 7
¶ 50.)
Burnett took a few steps toward the Officers, moving from the front steps of his
house to near the middle of a walkway which ran from the driveway to the front door.
(Id. at 7 ¶ 51; ECF No. 89 at 12 ¶ 33.) Sergeant Inazu attempted to continue engaging
Burnett in “casual conversation.” (ECF No. 77 at 7 ¶ 51.) Burnett then told the Officers
to “stop right there.” (ECF No. 89 at 12 ¶ 34.) When Sergeant Inazu asked Burnett why
they needed to stop, Burnett holding a packaged shirt, responded, “it’s your Miranda as
a San Diego police officer.” (ECF No. 77 at 8 ¶¶ 52-53.)
After confirming with Officer Fleming that his ankle was healthy enough to sprint
towards Burnett, Sergeant Inazu muttered to Officers Fleming and Daigle, “I’m going to
go,” and ran directly at Burnett. (Id. at 8 ¶¶ 54-56.) Officers Fleming, Daigle, and Barth
followed. (Id.) At the sight of the Officers running toward him, Burnett immediately
turned, sprinted into his house, and attempted to close the front door behind him. (Id. at
8 ¶ 57.) Sergeant Inazu used his body to prevent the door from fully closing, and the
Officers chased Burnett into the house. (Id. at 8 ¶ 58.) The Officers did not tell Burnett
that he was under arrest or give him any commands in the moments before forcibly
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entering his house. (ECF No. 89 at 12 ¶ 38.)
D. 	Use of Force
Once inside the house, Burnett continued to run away from the Officers. (ECF
No. 77 at 8 ¶ 59.) The Officers ordered Burnett to “get on the ground” three times. (Id.
at 8 ¶¶ 60, 62.) Burnett, still standing, appeared confused and responded, “Dude, what
are you doing?” and “No, no” in response to the Officers’ commands. (Id. at 8 ¶ 61;
ECF No. 89 at 12 ¶ 39.) Sergeant Inazu, Officer Fleming, and Officer Daigle
surrounded Burnett in an effort to get him to the floor. (ECF No. 77 at 8 ¶ 63.) Without
warning, Officer Barth used her taser on Burnett seconds into the encounter. (Id. at 8
¶ 64; ECF No. 89 at 13 ¶ 41.) Burnett uttered, “Ow,” in response to being tased and fell
to the floor. (ECF No. 77 at 9 ¶ 65; ECF No. 89 at 9 ¶ 65.)
Once on the floor, the Officers instructed Burnett at various points to “put your
hands behind your back,” “stop resisting,” and “give us your hands.” (ECF No. 77 at 9
¶¶ 66, 69.) Burnett said, “kill me, kill me now.” (Id. at 9 ¶ 70). The parties dispute the
extent to which Burnett physically resisted.3 (Id. at 9 ¶¶ 67, 72; ECF No. 89 at 4 ¶¶ 67,
72.) Roughly 20 seconds after Officer Barth initially discharged her taser, she arced her
taser for another second. (ECF No. 77 at 9 ¶ 74.) And then again, for a total of three
discharges. (Id. at 9 ¶¶ 75, 76.) Burnett grunted and stated, “Goddamn it. Fuck you.”
(Id. at 10 ¶ 83.) As the Court understands it, the logs from Officer Barth’s taser later
showed she interfered with wires during the first arc (id. at 10 ¶ 80), the second arc
lasted one second and the log showed some connection (id. at 10 ¶ 81), and the third
3 According to the Officers, Sergeant Inazu saw Burnett reaching for Officer Fleming’s
firearm. (ECF No. 77 at 9 ¶ 68; see also ECF No. 89 at 4 ¶ 68 (disputing).)
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arc lasted five seconds but the taser probes “only had a good connection for one
second” (id. at 9-10 ¶¶ 77-79). Officer Barth abandoned her use of the taser because
she did not believe that it was having any effect on Burnett. (Id. at 10 ¶ 82.) She
requested a medical response to the taser deployment. (Id. at 10 ¶ 86.)
Roughly one minute into their efforts to arrest Burnett, the Officers were able to
place Burnett’s arms behind his back and handcuff him. (Id. at 10 ¶¶ 88-90.) According
to the Estate, Officer Daigle continued to lay on Burnett and placed significant pressure
on Burnett’s back and neck as he lay prone. (ECF No. 89 at 13 ¶ 43; ECF No. 101 at 4
¶ 43 (disputing).) The Officers brought Burnett to his feet and attempted to walk him
toward the front door. (ECF No. 77 at 11 ¶ 91.) Burnett responded “No, you’re not
taking me out of my house. You’re not taking me out of my house. No, you’re not. No,
you’re not! This is my house! Fuck you!” (Id.) He became stiff-legged and pushed
back against the Officers’ efforts to walk him outside the house. (Id. at 11 ¶¶ 92-94.)
Burnett, along with Officers Fleming and Daigle and Sergeant Inazu, toppled and landed
on the front porch. (Id. at 11 ¶ 95.) Burnett fell face first onto the concrete and began
bleeding from his head. (ECF No. 89 at 13 ¶ 44.) The Estate asserts that, after they fell
over, Officer Daigle laid on Burnett and placed significant bodyweight on Burnett’s back
and neck as he lay prone. (Id. at 13 ¶ 45; ECF No. 101 at 4 ¶ 45 (disputing).) Burnett
can be heard telling the Officers, “Let me, ugh . . . Let me . . . Let me breathe!” (ECF
No. 89 at 13 ¶ 46.)
Sergeant Inazu grabbed gloves and flex cuffs from his patrol vehicle. (ECF No.
77 at 11 ¶ 98.) In the meantime, Officer Fleming attempted to calm Burnett down,
telling him to “breathe and catch your breath. Getting amped up is not going to help
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you. I want you to take deep breaths. Slow everything down. Alright? Help us keep
this low key for you.” (Id. at 11 ¶ 99.) Officers Fleming and Daigle then attempted to
bring Burnett to his feet for the second time. (Id. at 11 ¶ 100.) As they did so, Burnett
stated “Just so you know, you’re not getting me out of my house. It’s my house. No.
Chad Burnett’s house.” (Id. at 12 ¶ 101.) The Officers assert Burnett then “launched”
back inside the house. (Id. at 12 ¶ 102; ECF No. 89 at 5 ¶ 102 (disputing).)
At the point Burnett forced himself back inside, roughly four minutes had passed
since the Officers chased Burnett into his house. (See ECF No. 77 at 12 ¶ 103.)
Officer Fleming, while on top of Burnett, stated, “I told you to relax, didn’t I? Didn’t I?
You didn’t want to listen, did you? So now we’re gonna do it our way! The easy way is
over with!” (Id. at 12 ¶ 104; ECF No. 89 at 13 ¶ 47.) Officers Fleming and Daigle
attempted to control Burnett’s body above his waist. (ECF No. 77 at 12 ¶ 105.) Officer
Barth used some of her weight on Burnett’s legs between his knees and below his hips
to control Burnett’s legs while Sergeant Inazu attempted to secure his legs in flex cuffs.
(ECF No. 77 at 12 ¶ 110.) Officer Fleming ordered Burnett to stop resisting and
delivered two knee strikes to Burnett’s torso. (ECF No. 77 at 13 ¶¶ 114, 118; ECF No.
89 at 6 ¶¶ 114, 118; id. at 14 ¶ 51.) The parties dispute the extent to which Burnett
resisted the Officers’ efforts, and the extent to which the Officers placed pressure on
Burnett throughout this time. (E.g., ECF No. 77 at 12 ¶¶ 106-107, 109; ECF No. 89 at
13 ¶ 49, 106, 107; ECF No. 101 at 2 ¶ 107.)
Roughly six minutes after the encounter began, Sergeant Inazu was able to
secure Burnett’s legs in the flex cuffs. (ECF No. 77 at 13 ¶ 119.) The Officers caught
their breath and discussed carrying Burnett out of the house. (Id. at 13 ¶ 120.) During
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this time, the Officers state that Officer Daigle was kneeling with one hand on Burnett’s
back and another on his right arm, and Officer Fleming was on his feet, crouching, with
his right hand on Burnett’s left arm and left hand on his shoulder and later on his back.
(Id. at 13 ¶¶ 121-22.) The parties again dispute the amount of force or pressure placed
on Burnett’s back as they did so. (ECF No. 77 at 13-14 ¶¶ 123-126; ECF No. 89 at 6-7
¶¶ 121-123, 124; ECF No. 101 at 2 ¶ 123, 124.) According to the Estate, Officers
Fleming and Daigle remained in this position as Burnett lost consciousness, became
unresponsive, made audible gasping and moaning noises, and stopped breathing.
(ECF No. 89 at 14 ¶ 53.)
E. 	Medical Response
At some point after Burnett became still and silent, Officer Daigle checked
Burnett’s pulse and stated that he was detecting one. (ECF No. 77 at 14 ¶ 132.) The
Estate asserts this was two minutes after Burnett stopped breathing. (ECF No. 89 at 14
¶ 55.) Officer Fleming was handed a spit sock and placed it on Burnett. (ECF No. 77 at
14 ¶ 134.) After some moments, Officer Daigle checked Burnett’s pulse again. (ECF
No. 89 at 14 ¶ 57.) Officer Daigle stated, “I can feel it. It’s light, but I can feel it.” (ECF
No. 77 at 14 ¶ 135.) According to the Estate, three minutes had then passed since
Burnett stopped breathing. (ECF No. 89 at 14 ¶ 57.)
Sergeant Inazu then asked about Burnett’s breathing. (ECF No. 77 at 15 ¶ 136.)
Officer Fleming responded that Burnett had been breathing hard but was not breathing
hard at that moment. (Id.) Sergeant Inazu asked about a “good strong pulse and solid
respirations.” (Id. at 15 ¶ 137.) Officer Fleming stated that Officer Daigle felt a pulse
but that he had not “noticed breathing.” (Id. at 15 ¶ 138.) Officer Daigle then stated,
“Alright. Now I can’t find it,” referring to Burnett’s pulse. (ECF No. 89 at 8 ¶ 139.) He
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announced he believed Burnett was unconscious. (ECF No. 77 at 15 ¶ 140.) Sergeant
Inazu responded, “Or he’s playing possum.” (ECF No. 89 at 15 ¶ 61.)
Officer Barth moved her police cruiser out of the driveway and into the street so
emergency medical could respond more quickly. (ECF No. 77 at 15 ¶ 141.) As they
repositioned Burnett briefly, Sergeant Inazu instructed the other officers to make sure
no weight was placed on Burnett’s back. (Id. at 15 ¶ 142.) Sergeant Inazu felt Burnett’s
chest and abdomen and stated that his eyes were open and that he was blinking. (ECF
No. 77 at 16 ¶ 146.) He attempted to speak to Burnett, stating “Hey Chad, we’re sorry
this happened, but you have to listen to the police, ok? You understand that?” (Id. at
16 ¶ 147.) Officer Fleming said to the other officers, “We can always step them up,” to
which another officer responded, “They’re coming Code 3”—the highest level of
response. (Id. at 16 ¶¶ 148-49.)
One of the officers asked again if they saw a chest rise and placed their hands
on Burnett’s back and abdomen. (Id. at 16 ¶ 150.) Officer Fleming stated that Burnett
was holding his head up (id. at 16 ¶ 152), but then stated, “unless it’s just how you’re
holding his shoulder” (ECF No. 89 at 8 ¶ 152). Officer Fleming shined a flashlight in
Burnett’s eyes and observed his pupils dilated and did not constrict with light. (ECF No.
77 at 16 ¶ 155.) The Officers checked for Burnett’s pulse twice more before they
started chest compressions. (Id. at 17 ¶¶ 156-161). According to the Estate, Officer
Fleming started chest compressions eight minutes after Burnett had stopped breathing,
and four minutes and 40 seconds after Officer Fleming announced that Burnett was
unconscious. (ECF No. 89 at 15 ¶ 62.) Officer Fleming continued chest compressions
until emergency medical took over. (ECF No. 77 at 17 ¶¶ 162-163.) Burnett died in the
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entryway of his home. (ECF No. 89 at 15 ¶ 63.)
II. LEGAL STANDARD
1. 	Rule 56
Summary judgment is warranted under Federal Rule of Civil Procedure 56 “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); see also Andersen v.
Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986). A fact is “material” if, under the
relevant substantive law, it is essential to proper disposition of the claim. Wright v.
Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001). An issue is “genuine” if
the evidence is such that it might lead a reasonable trier of fact to return a verdict for the
nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
In analyzing a motion for summary judgment, a court must view the evidence and
all reasonable inferences therefrom in the light most favorable to the nonmoving party.
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In addition, the
Court must resolve factual ambiguities against the moving party, thus favoring the right
to a trial. See Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
2. 	Qualified Immunity
“Qualified immunity shields federal and state officials from money damages
unless a plaintiff pleads facts showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was ‘clearly established’ at the time of the
challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). “The judges of the
district courts . . . [may] exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first in light of the
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circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236
(2009).
Once the qualified immunity defense is raised, the burden shifts to the plaintiff to
demonstrate that the law was clearly established at the relevant time. Thomas v.
Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014). “A right is clearly established in this
circuit when a Supreme Court or Tenth Circuit decision is on point, or if the clearly
established weight of authority from other courts shows that the right must be as the
plaintiff maintains.” Id. (internal quotation marks omitted). Nonetheless, the clearly
established prong
involves more than a scavenger hunt for prior cases with
precisely the same facts. The more obviously egregious the
conduct in light of prevailing constitutional principles, the less
specificity is required from prior case law to clearly establish
the violation. The Supreme Court has cautioned [lower]
courts not to define clearly established law at a high level of
generality, but to focus on whether the violative nature of
particular conduct is clearly established.
Perea v. Baca, 817 F.3d 1198, 1204 (10th Cir. 2016) (internal quotation marks and
citations omitted).
III. ANALYSIS
The Officers argue they are entitled to qualified immunity as a matter of law on
Burnett’s remaining claims that the Officers (1) entered Burnett’s home without a
warrant in violation of the Fourth Amendment (ECF No. 29 at ¶¶ 133-147), (2) used
excessive force to effect Burnett’s arrest in violation of the Fourteenth Amendment (id.
at ¶¶ 148-166), and (3) failed to ensure Burnett’s safety and provide him with adequate
medical care in violation of the Fourth Amendment or Fourteenth Amendment (id. at ¶¶
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167-183). 4 The Court considers the Officers’ entitlement to qualified immunity for each
alleged constitutional violation in turn, using the two-prong test established by the
Supreme Court. al-Kidd, 563 U.S. at 735.
A. 	Warrantless Entry
“It is a basic principle of Fourth Amendment law that searches and seizures
inside a home without a warrant are presumptively unreasonable.” Payton v. New York,
445 U.S. 573, 586 (1980) (citation omitted). Notwithstanding, if “police have probable
cause for an arrest, the existence of certain exigent circumstances may ‘overcome the
presumption of unreasonableness . . . .’” Mascorro v. Billings, 656 F.3d 1198, 1205
(10th Cir. 2011) (citations omitted).
The Court previously found the Officers had probable cause to believe Burnett
had committed felony menacing based on the “two [911] calls from Burnett’s neighbors
reporting that he had threatened a neighbor with a knife.” (ECF No. 44 at 9.) The
Officers urge the Court to also find that their “warrantless entry was lawful” based on the
hot pursuit exigency. (ECF No. 77 at 19.) “The burden is on the government to
demonstrate the existence of exigent circumstances that overcome the presumption of
unreasonableness that attaches to all warrantless home arrests.” Mascorro, 656 F.3d
at 1205. “That burden is especially heavy when the exception must justify the
warrantless entry of a home.” U.S. v. Najar, 451 F.3d 710, 717 (10th Cir. 2006).
1. 	Hot Pursuit
Under the “hot pursuit” doctrine, “police who attempt to arrest [a] felon outside
[her] home may pursue her if she takes refuge inside.” United States v. Cruz, 977 F.3d
4 The parties dispute the proper Amendment under which to analyze this claim.
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998, 1009 (10th Cir. 2020) (quoting U.S. v. Aquino, 836 F.2d 1268,1271 (1988))
(alterations in original). “In other words, ‘a suspect may not defeat an arrest which has
been set in motion in a public place.’” Cruz, 977 F.3d at 1009 (quoting U.S. v. Santana,
427 U.S. 38, 43 (1976)). While “hot pursuit means some sort of chase,” it “need not be
an extended hue and cry in and about (the) public streets.” Santana, 427 U.S. at 42-43.
Still, the officer must be “in ‘immediate or continuous pursuit’ of a suspect from the
scene of a crime.” Id. (quoting Welsh v. Wisconsin, 466 U.S. 740, 753 (1984)).
The Court previously denied Defendants’ motion to dismiss the Estate’s unlawful
arrest claim based on the application of the hot pursuit doctrine because, taking the
allegations in the Amended Complaint as true, “Burnett remained in the curtilage of his
home for the entirety of the encounter with the Officers . . . .” (ECF No. 44 at 10.)
Defendants relied—and indeed continue to rely—on Santana to support the application
of the hot pursuit doctrine. In that case, the Supreme Court held the hot pursuit doctrine
justified the officers’ warrantless entry into Santana’s home where the chase began
while Santana was standing in the threshold of her home—a “public place” for Fourth
Amendment purposes—before she retreated into the home’s vestibule. Santana, 427
U.S. at 42.
Despite Santana’s apparent similarities, the Court reasoned the hot pursuit
doctrine did not warrant dismissal of the Estate’s warrantless entry claim because
Supreme Court precedent established that curtilage is “part of the home itself for Fourth
Amendment purposes.” Florida v. Jardines, 569 U.S. 1, 6 (2013). Thus, to the extent
Burnett was in his front yard immediately in front of his home when the chase began,
there was no “pursuit that began in a public place and immediately continued into
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private property.” Attocknie v. Smith, 798 F.3d 1252, 1257-58 (10th Cir. 2015). That is,
the Officers’ pursuit of Burnett began on private property protected by the Fourth
Amendment and ended on private property protected by the Fourth Amendment.
The Court must now reconsider this reasoning in view of the Officers’ citation to
Soza v. Demisch, 13 F.4th 1094, 1097 (10th Cir. 2021). In that case, the criminal
defendant was arrested on the front porch of his residence after police officers came to
believe he was involved in a nearby home invasion. Id. at 1104. Soza argued the
officers violated his Fourth Amendment rights by entering his front porch without a
warrant to seize him. Id. The Tenth Circuit observed that “much concerning this issue
is clearly established,” including that “[t]he front porch . . . is undoubtedly curtilage” and
“a warrantless search of curtilage is unconstitutional.” Id. at 1105. Nonetheless, “all
cases in the Tenth Circuit and Supreme Court addressing seizures only involve
warrantless entry into a suspect’s home itself, rather than the curtilage of the home.” Id.
The Circuit “found no case that addresses both 1) warrantless entry onto a front porch
or other curtilage, rather than into the home, for 2) the purpose of a seizure, rather than
a search—except, arguably one: United States v. Santana, 427 U.S. 38 (1976).” Id.
While noting that “Santana’s foundation has been eroded by subsequent
curtilage cases like Jardines, its decision upholding the constitutionality of a warrantless
seizure at the threshold of a suspect’s home remains binding Supreme Court
precedent.” Id. at 1107. “At the very least,” the Circuit reasoned, “considering Santana,
we hold that reasonable minds could differ as to the constitutionality of a warrantless
front porch seizure and we cannot say the law was clearly established in []Soza’s favor.”
Id. For the same reason, the Circuit held the officers “could have reasonably relied on
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Santana for the proposition that warrantless entry onto a front porch for the purpose of
detaining a suspect is constitutional.” Id.
The Officers argue that, based on Soza, “[t]he driveway and walkway where the
chase began was in a public place.” (ECF No. 101 at 7.) The Court agrees that Soza
at least compels the finding that it was not clearly established as of May 2020 that hot
pursuit cannot justify a warrantless entry where the chase began in the curtilage of the
suspect’s home.
This finding does not, however, end the inquiry. In order to find the hot pursuit
doctrine justified the Officers’ warrantless entry into Burnett’s home, the Officers must
still show the pursuit was immediate or continuous from the scene of a crime as a
matter of law. Attocknie, 798 F.3d at 1257. The Court concludes that genuine issues of
fact preclude it from finding this condition was satisfied.
Welsh is instructive on the application of the hot pursuit doctrine here. There,
police officers learned from a witness that Welsh had driven his car off the road and
then left the scene, presumably because he was drunk. 466 U.S. at 742-43. Acting on
that tip, the officers went to Welsh’s home without a warrant, entered without consent,
and arrested him for driving while intoxicated. Id. The Supreme Court rejected the
State’s assertion of the hot pursuit doctrine, reasoning its invocation was “unconvincing
because there was no immediate or continuous pursuit of [Welsh] from the scene of a
crime.” Id. at 753.
The crime for which the Officers arrested Burnett was felony menacing of his
neighbor(s) with a knife. (ECF No. 77 at 6-7 ¶ 43.) The Officers do not appear to
dispute that this crime occurred on or near his neighbors’ property—not Burnett’s. (E.g.,
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ECF No. 89 at 9 ¶ 9.) In their response to the Estate’s recitation of material facts, the
Officers nonetheless counter that the location of the “scene of a crime” is a legal
determination, not a fact, and that “the ‘scene’ of a crime may include areas where
evidence of the crime is found.” (ECF No. 101 at 2 ¶ 10.) The Officers do not, however,
direct the Court to any relevant legal authority to support this point. And even assuming
the Officers’ assertion is true, they also do not explain to the Court what “evidence of
the crime” was found at Burnett’s home such that the Court should find it was the
“scene of a crime” as a matter of law.
The Court thus concludes a reasonable jury could find the relevant “scene of a
crime” was the Shaws’ property. And like in Welsh, by the time the Officers arrived,
Burnett had already left the immediate scene of the crime and returned to the confines
of his own home, such that there was no “immediate or continuous pursuit from the
scene of a crime.” 466 U.S. at 742-43. Even if Burnett’s home was just a short
distance from the Shaws’ property, in the Court’s view, this distinction is meaningful. Cf.
Santana, 427 U.S. at 40–43 (hot pursuit justified chase of suspect from the threshold of
her home into its vestibule where the crime at issue occurred inside the home).
Still, the Officers argue this “restrictive, hyper technical” application of the hot
pursuit doctrine is “unsupported by Tenth Circuit and Supreme Court precedent.” (ECF
No. 101 at 6.) But in the Court’s view, it is the case law upon which the Officers rely
that is distinguishable. For instance, in Cruz, surveilling officers observed a suspect
emerge from his home and wait on the street (the scene of the crime) to meet a
participant in an arranged drug deal. 977 F.3d at 1002-03. When the officers began to
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approach the suspect on the street, he fled, and they pursued him into his home.5 Id.
That is unlike here, where the facts support that Burnett was arrested after he had been
home for at least an hour and a half after completing the crime for which he was
ultimately arrested at another location. Cf. Attocknie, 798 F.3d at 1257 (“[The officer]
appears to believe that once a person has committed a felony, he is fair game for ‘hot
pursuit’ whenever he is spotted. This is a gross misunderstanding of the law.”)
The Officers also rely on United States v. Martin, 613 F.3d 1295 (2010), United
States v. Najar, 451 F.3d 710 (2006), and United States v. Aquino, 836 F.2d 1268 (10th
Cir. 1988). However, those decisions are inapposite, as they concerned whether the
warrantless entries at issue were justified by exigent circumstances other than hot
pursuit—specifically, officer or third-party safety concerns and the destruction of
evidence. Martin, 613 F.3d at 1303-05 (finding “imminent and genuine officer safety
concerns gave rise to exigent circumstances sufficient to justify the officers’ entry”);
Najar, 451 F.3d at 717 (analyzing whether “circumstances posed a significant risk to the
safety of a police officer or a third party” to justify warrantless entry); Aquino, 836 F.2d
at 1273 (finding officers had “sufficient reason to believe that criminal evidence would
be destroyed if the police did not immediately enter”).
The Court also readily finds that, at the time of the Officers’ warrantless entry,
“clearly established law on hot pursuit required an ‘immediate or continuous’ pursuit of a
suspect from the crime scene.” Attocknie, 798 F.3d at 1257. The Officers rely on
Santana as clearly established law supporting the notion that their warrantless entry
5 Notably, the officers stated they chased the suspect because they were concerned that
he was going to destroy evidence, although the Tenth Circuit concluded that hot pursuit was
alternative grounds justifying their warrantless entry. 977 F.3d at 1003, 1009-10.
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was supported by hot pursuit, but that case, too, involved a pursuit that began while the
suspect was at the crime scene. 427 U.S. at 40. Indeed, the scene of the crime—a
drug transaction—was the suspect’s house itself. See id. Thus, Santana does not
undercut the Supreme Court’s finding in Welsh that there was “no immediate or
continuous pursuit of [a suspect] from the scene of a crime” where the suspect had
already left the scene of the crime and returned to his home before the officers’ pursuit
even began. 466 U.S. at 740; see also Stanton v. Sims, 1354 S. Ct. 3, 6 (2013)
(confirming that there had been no hot pursuit in Welsh).
In sum, the Court finds there are sufficient facts in the record upon which a jury
could find there was no “’immediate or continuous’ pursuit of [Burnett] from the crime
scene.” Attocknie, 798 F.3d at 1257; Welsh, 466 U.S. at 753.
2. 	Public and Officer Safety Concerns
The final paragraph of the Officers’ argument on hot pursuit begins with the
sentence, “Public and officer safety concerns also supported the entry.” (ECF No. 77 at
19-20.) The Officers proceed to recite a series of facts from the record in apparent
support, before ending the paragraph with what appears to be still further argument on
hot pursuit. (See id. at 20 (“When Burnett walked outside on his own accord and
engaged Sgt. Inazu in conversation moments later, Sgt. Inazu saw an opportunity to
bring order to the situation. He and the other officers were not required to end their foot
chase at the front door. Rather, Burnett could not defeat his arrest by retreating into the
home.”)). The Officers’ lone citation is to the Supreme Court’s broad holding in Welsh
that “an important factor to be considered when determining whether any exigency
exists is the gravity of the underlying offense for which the arrest is being made.” 466
U.S. at 753 (emphasis added).
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Observing the same deficiencies, the Estate argues in response that the Officers
have failed to “meaningfully develop an argument with respect to any exigency other
than hot pursuit,” including because “they do not cite any relevant authority . . . .” (ECF
No. 89 at 21.) The Estate further argues that the record does not, in any case, support
that at least one of the essential elements of the exigency is satisfied—i.e., that “the
officers have an objectively reasonable basis to believe there is an immediate need to
protect the lives or safety of themselves or others.” (ECF No. 89 at 21 (quoting Najar,
451 F.3d at 717). The Officers do not rebut these arguments in reply. (See generally
ECF No. 101.) Indeed, the officer and public safety exigency exception to the warrant
requirement is wholly unmentioned in the Officers’ reply brief. (Id.)
To the extent the Officers intend to assert that “officer or public safety concerns”
were an independent, alternative exigency to hot pursuit justifying their warrantless
entry, the Court agrees with the Estate that the Officers have not meaningfully
developed the argument. To demonstrate that officer or public safety justifies a
warrantless entry, “the government must show, ‘(1) the officers had an objectively
reasonable basis to believe that there was an immediate need to enter to protect the
safety of themselves or others, and (2) the conduct of the entry was reasonable.’” U.S.
v. Reeves, 524 F.3d 1161, 1169 (10th Cir. 2008) (quoting U.S. v. Walker, 474 F.3d
1249, 1253 (10th Cir. 2007)).
The Officers do not even articulate this standard in their opening brief—let alone
explain how the facts they list (many of which are disputed) demonstrate that each of
these elements is satisfied as a matter of law. (See generally ECF No. 77.) The Court
thus declines to consider it. See Rapid Transit Lines, Inc. v. Wichita Developers, Inc.,
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435 F.2d 850, 852 (10th Cir. 1970) (a party’s failure to cite any authority “suggests
either that there is no authority to sustain its position or that it expects the court to do its
research”). In addition or in the alternative, the Court finds the Officers have abandoned
the argument by failing to address the Estate’s arguments in reply. 6 See In re FCC 11-
161, 753 F.3d 1015, 1100-01 (10th Cir. 2014) (rejecting petitioners’ argument because
their reply brief was silent on an issue and made no attempt to rebut respondents’
argument); Cayetano-Castillo v. Lynch, 630 F. App’x 788, 794 (10th Cir. 2015) (holding
that an appellant, who does not respond to an argument in its reply brief, “waives, as a
practical matter anyway, any objections not obvious to the court to specific points urged
by the appellee” because the court is not “required to do his work for him and dissect
[the appellee’s] plausible argument”).
3. 	Point of Burnett’s Seizure
In denying Defendants’ earlier motion to dismiss, the Court agreed with the
Estate that the timing of Burnett’s seizure was relevant because “[a] factor that develops
post-seizure cannot be used to justify exigency.” Reeves, 524 F.3d at 1169. The
Estate argued at that time—and reasserts in its briefing on the Motion—“that Burnett’s
seizure for Fourth Amendment purposes occurred long before the Officers chased him
into his home,” such that “any exigency resulting from that chase cannot support their
warrantless entry into his home.” (ECF No. 44 at 10; ECF No. 89 at 19-20.)
6 The Court reiterates that, “[w]hile the defense of qualified immunity places the burden
on the plaintiff to demonstrate that the defendant violated his clearly established constitutional
rights, the Tenth Circuit looks to the criminal context and shifts the burden back to the defendant
when exigent circumstances are alleged.” French v. City of Cortez, 361 F. Supp. 3d 1101, 1029
n.12 (D. Colo. 2019) (citing Mascorro, 656 F.3d at 1205; Lundstrom v. Romero, 616 F.3d 1108,
1124 (10th Cir. 2010); Armijo v. Peterson, 601 F.3d 1065, 1070 (10th Cir. 2010)).
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The Court acknowledges that its prior order found that Reeves and Flowers were
clearly established law “that coercive police conduct directed at people within their
homes can effect a seizure upon them, even if they open the door in response to a
show of authority.” (ECF No. 44 at 13.) Nonetheless, the Officers’ point is well-taken
that neither of those cases arose in the context of hot pursuit. (ECF No. 101 at 10); see
Reeves, 524 F.3d at 1170 (“The government argues exigent circumstances were
supported by officer and victim safety.”); U.S. v. Flowers, 336 F.3d 1222, 1231 (10th Cir.
2003) (“According to the government, this created a set of exigent circumstances for the
safety of the officers and the public as well as the potential for destruction of
evidence.”).
The Estate cites no other case in its briefing where a suspect was deemed
“seized” due to a show of police authority even before any arguable hot pursuit ending
in the suspect’s home had occurred and, as a result, law enforcement was precluded
from relying on the hot pursuit exigency to avoid liability for its warrantless entry into the
suspect’s home. Thus, the Court concludes the Estate has not met its burden to show
the law was clearly established in the same regard.
Nonetheless, as the other fact issues discussed above separately preclude the
Court from finding the Officers are entitled to qualified immunity on the Estate’s Fourth
Amendment warrantless entry claim, the Officers’ Motion is denied as to that claim.
B. 	Excessive Force
“[A]ll claims that law enforcement officers have used excessive force—deadly or
not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen
should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard
. . . .” Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis removed). To determine
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whether force used in a particular case is excessive “requires a careful balancing of the
nature and quality of the intrusion on the individual’s Fourth Amendment interests
against the countervailing governmental interests at stake.” Id. at 396. The ultimate
“question is whether the officers’ actions are objectively reasonable in light of the facts
and circumstances confronting them, without regard to their underlying intent or
motivation.” Morris v. Noe, 672 F.3d 1185, 1195 (10th Cir. 2012).
Applying this standard “requires careful attention to the facts and circumstances
of each particular case, including [1] the severity of the crime at issue, [2] whether the
suspect poses an immediate threat to the safety of the officers or others, and
[3] whether he is actively resisting arrest or attempting to evade arrest by flight.”
Graham, 490 U.S. at 396; see also Lundstrom v. Romero, 616 F.3d 1108, 1126 (10th
Cir. 2010) (referring to the Graham factors as the “three, non-exclusive factors relevant
to [an] excessive force inquiry”). The Court previously found the first Graham factor
weighed in favor of the Officers because they had probable cause to believe Burnett
had committed felony menacing. (ECF No. 44 at 14-15). The Court thus considers only
whether the second and third Graham factors are sufficient to create a genuine issue of
material fact in favor of the Estate.
The Tenth Circuit has expressed that “the second [Graham] factor—whether
there is an immediate threat to safety—‘is undoubtedly the most important . . . factor in
determining the objective reasonableness of an officer’s use of force.’” Est. of Valverde
by and through Padilla v. Dodge, 967 F.3d 1049, 1060-61 (10th Cir. 2020) (quoting
Pauly v. White, 874 F.3d 1197, 1216 (10th Cir. 2017)) (internal quotation marks
omitted). “That is particularly true when the issue is whether an officer reasonably
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believed that he faced a threat of serious physical harm.” Est. of Valverde, 967 F.3d at
1061. The third Graham factor—whether Burnett actively resisted arrest or attempted to
evade arrest by flight—is properly considered in light of whether “the officers’ own
reckless or deliberate conduct during the seizure unreasonably created the need to use
such force.” Cordova v. Aragon, 569 F.3d 1183, 1188 (10th Cir. 2009) (internal
quotation marks and citation omitted).
With these principles in mind, the Court next considers (1) Officer Barth’s use of
a taser and (2) the Officers’ use of force after Burnett was restrained.
1. 	Officer Barth’s Use of Taser
Here, the facts surrounding the moments before Burnett’s arrest are relevant to
whether there was “an immediate threat to safety” and the Officers’ “own reckless or
deliberate conduct” contributed to the need for Officer Barth to deploy her taser—to the
extent any such need existed. It is undisputed that the encounter began when Burnett,
wearing a Toronto Maple Leafs sweatshirt and holding a packaged shirt, emerged from
his home and stopped on the walkway running from his front porch to the driveway,
some distance away from the Officers, who were then standing in the cul-de-sac. (ECF
No. 89 at 12 ¶ 31; ECF No. 77 at 7 ¶¶ 47-48.) Viewing this in the light most favorable to
the Estate, a reasonable jury could find that, at least in that moment, Burnett was
unarmed and otherwise appeared non-threatening.
Burnett then began speaking to Sergeant Inazu and Officers Fleming and Daigle,
telling them that he was a Toronto Maple Leafs player. (ECF No. 77 at 7 ¶ 48.) The
record supports the notion that Officer Barth observed at least part of this exchange
from the front yard of Burnett’s next-door neighbor. (See generally ECF No. 77-1.)
Based on at least this comment, a jury could find that a reasonable officer in Officer
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Barth’s position should have ascertained that Burnett was a person with an obvious
mental illness—claiming as he did to be a professional hockey player. See Estate of
Ceballos v. Husk, 919 F.3d 1204, 1217 (10th Cir. 2019) (where “responding officers
knew Ceballo’s capacity to reason was diminished, whether the underlying reason might
have been . . . . a jury might reasonably find that an objective officer in Husk’s position
should have recognized that as well and would have taken those facts into account
before provoking a fatal encounter”); Perea, 817 F.3d at 1204 (“It is not reasonable for
an officer to repeatedly use a taser against a subdued arrestee they know to be
mentally ill . . . .”); Allen, 119 F.3d at 839 (genuine issue of material fact as to officers’
reasonableness precluded qualified immunity on excessive force where decedent was
threatening suicide prior to encounter with police). The Officers “do[] not allege and no
evidence indicates that [Officer Barth] altered the manner or level of [her] use of force
based on [Burnett’s] obvious mental health struggles.” French v. City of Cortez, 361 F.
Supp. 3d 1011, 1036 (D. Colo. 2019). The Officers argue, conversely, that “[n]o
evidence indicates officers failed to take his mental state into account” (ECF No. 101 at
11). But the Court is not persuaded this bare assertion negates any dispute of fact.
As the Officers began to walk up Burnett’s driveway, Sergeant Inazu engaged
Burnett in what the Officers describe as “casual conversation” and told him to “come on
over.” (ECF No. 77 at 7 ¶ 51; ECF No. 89 at 12 ¶ 33.) While the Court may not
consider the Officers’ subjective intent, the Officers’ behavior in this manner does not
suggest that they perceived any immediate threat to their safety in that moment.
Moreover, there is no indication that Burnett made any aggressive movement toward
the Officers. To the contrary, he told them to “[s]top right there.” (ECF No. 89 at 12 ¶
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34.) Rather, it was the Officers that charged Burnett, without warning, and chased him
into the house. (ECF No. 77 at 8 ¶¶ 54-56.) Thus, as pertinent to the third Graham
factor, Burnett also “did not initiate the physical struggle with the officers.” French, 361
F. Supp. 3d at 1034. To the extent any force was needed thereafter, the Officers’
decision to take Burnett by surprise and then forcibly enter and apprehend him, “rather
than employing other means, were certainly principal causes.” Id. at 1033.
In response to the Officers chasing him into the house and surrounding him, and
again viewing the facts in the light most favorable to the Estate, the record supports the
notion that Burnett initially showed signs not of resistance, but of confusion, saying,
“Dude, what are you doing?” (ECF No. 89 at 12 ¶ 39.) One or more of the Officers
swiftly commanded Burnett to get on the ground, and Officer Barth tased Burnett
virtually immediately afterward. (ECF No. 77 at 8 ¶¶ 60, 64; ECF No. 89 at 13 ¶ 41.) A
reasonable jury could find that Officer Barth did not “give [Burnett] a chance to submit
peacefully to an arrest.” Casey v. City of Federal Heights, 509 F.3d 1278, 1282 (10th
Cir. 2007).
Only roughly 20 seconds passed before Officer Barth tased Burnett for the
second and third time. (ECF No. 77 at 9 ¶ 73.) Between Officer Barth’s initial discharge
of her taser and the second and third discharge, Burnett repeatedly stated, “kill me,” “kill
me now” (Id. at 9 ¶ 70)—“not commonly the words of a combative individual.” French,
361 F. Supp. 3d at 1034. The Officers, of course, dispute the extent to which Burnett
resisted the Officers’ efforts to arrest him. But even to the extent Burnett did show any
signs of resistance in these moments, such resistance “could have been a less than
voluntary reaction to being thrown to the ground and tased,” drawing all inferences in
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his favor. Id. at 1034; see also Casey, 509 F.3d at 1280 (where suspect testified that
“he kept trying to get up” during encounter with police). Burnett’s “actions must also be
considered in light of the fact that he was not informed why he was being arrested, nor
was he given any warnings regarding use of the Taser.” French, 361 F. Supp. 3d at
1035.
While the Officers may point to other facts at trial to support their theory that the
second and third Graham factors weigh in Officer Barth’s favor, the Court readily finds
that at least the foregoing considerations are sufficient to create a genuine issue of
material fact as to whether Officer Barth’s use of force was objectively reasonable under
the circumstances.
The Court also finds it was clearly established at the time of the incident in May
2020 that “it is excessive to use a Taser to control a target without having any reason to
believe that a lesser amount of force—or verbal command—could not exact
compliance.” Casey, 509 F.3d at 1286. The Tenth Circuit reaffirmed this finding in
Cavanaugh v. Woods Cross City, holding an officer may not use a “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.” 625 F.3d 661, 662-63 (10th Cir.
2010); see also Lee v. Tucker, 904 F.3d 1145, 1150 (10th Cir. 2018) (“defendants
violated Cavanaugh’s dictate by repeatedly advising a Taser without warning, despite
the fact that Lee was not resisting the officers and had not been advised that he was
being detained”).
The Officers assert that, “[c]onfronted with an actively resistive felony suspect,
Officer Barth was not required to warn Burnett.” (ECF No. 77 at 22.) However, the
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Officers cite no authority to support this position. Moreover, as discussed above, the
extent to which Burnett resisted in the moments before he was tased is a fact very much
in dispute. And while the Tenth Circuit’s cases concerning the use of a taser without
warning concerned “non-violent misdemeanants,” this does not preclude the Court from
finding the law was sufficiently clearly established to place Officer Barth on notice. See
also French, 361 F. Supp. 3d at 1037 (finding Casey, Cavanaugh, and Perea were
clearly established law in case where suspect “was tased even though he did not initiate
the physical engagement, was not threatening or attempting to flee, and received no
warning or explanation” and was ultimately charged with “attempted murder, felony
criminal mischief, felony obstruction, reckless endangerment, and menacing”).
The Court will further note that not all of the suspects in the Tenth Circuit’s
previous cases were accused of “non-violent” crimes—even if misdemeanors. In
Cavanaugh, for instance, the suspect ultimately pleaded guilty to “assault-domestic
violence and intoxication,” and the suspect’s husband had informed police before the
encounter that he believed her to be armed with a kitchen knife. 625 F.3d at 663.
In any case, the severity of the crime at issue is just one factor to be considered
under Graham. Excessive force claims require assessing the totality of the
circumstances, and not simply tallying factors on two sides of a ledger. Weigel v.
Broad, 544 F.3d 1143, 1151–52 (10th Cir. 2008). Based on this record, a reasonable
jury could find Officer Barth’s use of a taser on Burnett without a prior warning was
disproportionately excessive in view of the totality of the circumstances under clearly
established law.
2. 	Use of Force After Burnett Was Restrained
The Estate next argues that the “[O]fficers unjustifiably continued to use force on
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[] Burnett” “[a]fter Burnett was handcuffed—and after his resistance ended or he no
longer posed any threat.” (ECF No. 89 at 24.) Viewing the facts in the light most
favorable to the Estate, the Court agrees that the record evidence shows that the
Officers at times used force while Burnett was in a face-down prone position after he
was handcuffed, a determination that a jury could find constitutes excessive force under
the circumstances.
First, as the Officers were handcuffing Burnett, the BWC footage supports a
finding that Burnett was in a face down position, and Officer Daigle laid or leaned across
Burnett’s upper torso for approximately 50 seconds. (ECF No. 77-2 at 2:17-3:07; see
also ECF No. 89 at 13 ¶ 43.) During these seconds, Burnett can be heard saying, “Help
me,” but otherwise appears to be motionless. (See id.) It is difficult to discern from the
BWC footage the extent to which Burnett was resisting the Officers in the seconds
immediately before. And since that fact is otherwise in dispute, the Court declines to
resolve it in the Officers’ favor at this stage. (ECF No. 89 at 13 ¶ 43.) Moreover, as
discussed above, even to the extent Burnett did show signs of resistance in these
seconds, such resistance “could have been a less than voluntary reaction” to have just
been “thrown to the ground and tased,” drawing all inferences in his favor. Id. at 1034;
see also Casey, 509 F.3d at 1280 (where suspect testified that “he kept trying to get up”
during encounter with police).
Second, after Burnett fell face forward onto his front porch, the BWC footage
supports a finding that Officer Daigle laid or leaned across Burnett’s upper torso for
roughly 15 seconds, while Burnett, still handcuffed, laid motionless. (ECF No. 77-2 at
4:00-4:14.) Officer Daigle then rose to his knees, but it appears his right hand remained
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on Burnett’s upper torso, although it is out of frame, such that the Court cannot tell how
long this continued. (See id.) There can be little dispute, however, that, based on the
BWC footage, Burnett fell onto his porch due to his resistance to the Officers’ efforts to
remove him from his house. (ECF No. 77 at 11 ¶¶ 91-95.) Still, Burnett’s “actions must
. . . be considered in light of the fact that he was not informed why he was being
arrested . . . .” French, 361 F. Supp. 3d at 1035. Moreover, a reasonable jury could
interpret the fact that Burnett was attempting to stay inside the house as inconsistent
with a finding that Burnett was attempting to flee or evade arrest. Cf. Casey, 509 F.3d
at 1282 (“If anything, by returning to the courthouse rather than to his truck Mr. Casey
would have made himself easier to capture, not harder.”).
Third, after Burnett had forced his way back into the house and the Officers
returned him to a face-down prone position, the BWC footage shows that there was
consistently a hand placed on Burnett’s upper neck and back area for approximately
three minutes. (ECF No. 77-2 at 5:39–8:49.) The Court cannot discern from the BWC
footage the extent of the pressure placed on Burnett, and the parties otherwise dispute
this fact. (ECF No. 89 at 7 ¶ 124.) During this time, Officer Daigle also delivered—or at
least attempted to deliver—two knee strikes to Burnett’s torso. (ECF No. 77 at 13 ¶¶
114, 118.) Here again, the Court acknowledges that, after the Officers brought Burnett
to his feet for the second time, Burnett stiffened his legs and resisted the Officers efforts
to escort him away from the house. But it also appears that, even after Burnett’s feet
were secured and he fell silent, the Officers kept their hands on Burnett’s upper back
and neck area for just under two minutes. Cf. Weigel, 544 F.3d at 1152-53 (finding
sufficient evidence to support excessive force claim where evidence supported that
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Weigl was maintained on his stomach with pressure imposed on his upper back for
roughly three minutes). The Estate contends they did so despite the fact that “Burnett
was audibly in respiratory distress, and even asked officers to let him breathe.” (ECF
No. 89 at 24; id. at 13 ¶¶ 45-49.)
Ultimately, it will be up to the jury to decide if the Officers’ use of force after
Burnett was handcuffed and in a prone position was proportionate based on the degree
to which they find Burnett “posed an immediate threat to the safety of the officers or
others” and “actively resisted arrest or attempted to evade arrest by flight.” The Court
reiterates that the latter factor must be viewed in light of whether “the officers’ own
reckless or deliberate conduct during the seizure unreasonably created the need to use
such force.” Cordova, 569 F.3d at 1188. Thus, while evidence of Burnett’s resistance
is certainly relevant, it must be considered in context, among other things, of the
Officers’ own conduct. Moreover, the same considerations discussed above regarding
Burnett’s mental illness bear on this inquiry. See Section III.B.1 supra. In all, “[a]
review of the facts in the light most favorable to [the Estate] persuades [the Court] they
give rise to a jury question regarding whether the officers acted reasonably.” Weigel,
544 F.3d at 1152.
The Court further finds that “Dixon, Casey, and Weigel clearly establish[ed] that
the Fourth Amendment prohibits the use of force without legitimate justification, as when
a subject poses no threat or has been subdued.” McCoy v. Meyers, 887 F.3d 1034,
1052 (10th Cir. 2018); see also Martin v. City of Albuquerque, 147 F. Supp. 3d 1298,
1332 (D.N.M. 2015) (citing Casey in concluding a reasonable jury might find officer’s
use of force was excessive where he “did not inform Martin that he was under arrest
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before pushing him up against the truck and administering a knee strike). And
particularly with respect to the use of pressure on a suspect’s back, the Tenth Circuit
held in Estate of Booker v. Gomez that placing significant or substantial weight on a
suspect’s back “while he was handcuffed on his stomach” is excessive. 745 F.3d 405,
424 (10th Cir. 2014); see also id. at 429 (“Weigel (pressure on back) . . . put Defendants
on notice that use of such force on a person who is not resisting and who is restrained
in handcuffs is disproportionate.”). As the Court previously noted, the law does not
require that cases be “factually identical” to find clearly established law. McCoy, 887
F.3d at 1052. These cases are sufficiently “factually analogous” to place the Officers on
notice that their use of force was excessive, should the jury find that the second and
third Graham factors weigh in the Estate’s favor.
For all these reasons, the Officers’ Motion is denied with respect to the Estate’s
excessive force claim.
C. 	Failure to Provide Medical Care
1. 	Constitutional Violation
The parties continue to dispute which Constitutional Amendment applies to the
Estate’s inadequate medical care claim. As the Court previously observed, this
disagreement is not purely academic; the standard that applies under each amendment
is different. Lanman v. Hansen, 529 F.3d 673, 679–80 (10th Cir. 2008). Under the
Fourth Amendment, the “objectively unreasonable” standard applies, and under the
Fourteenth Amendment, the “deliberate indifference” standard applies. Id.
Traditionally, the “deliberate indifference” standard includes both an objective and
subjective element—and therefore presents a higher bar for a plaintiff to clear. See
Strain v. Regalado, 977 F.3d 984, 989–90 (2020), cert. denied, 142 S. Ct. 312 (2021).
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Although an unpublished decision, the Court observes that the Tenth Circuit
recently analyzed a claim that the officers had failed to provide adequate medical care
when the decedent-suspect was shot in the course of an arrest pursuant to the
Fourteenth Amendment. Crittenden v. City of Tahlequah, 786 F. App’x 795 (10th Cir.
2019). In the absence of any binding precedent to the contrary, the Court will follow the
Tenth Circuit’s lead in Crittenden and apply the Fourteenth Amendment deliberate
indifference standard to the Estate’s claim.
The Tenth Circuit explained the two-prong test as below:
The objective inquiry asks whether “the harm suffered rises
to a level sufficiently serious to be cognizable under the
Cruel and Unusual Punishment Clause of the Eighth
Amendment.” Id. (quoting Mata v. Saiz, 427 F.3d 745, 752–
53 (10th Cir. 2005) (quotation marks omitted)). The
subjective inquiry, in turn, asks whether “the defendants
knew [the detainee] faced a substantial risk of harm and
disregarded that risk, by failing to take reasonable measures
to abate it.” Id. (quoting Callahan, 471 F.3d at 1159
(quotation marks omitted)).
Quintana v. Santa Fe Cnty. Bd. Comm’rs, 973 F.3d 1022, 1029 (2020) (quoting
Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009)).
The Court finds that the Estate easily satisfies the objective prong. A “medical
need is sufficiently serious if it is one that has been diagnosed by a physician as
mandating treatment or . . . is so obvious that even a lay person would easily recognize
the necessity for a doctor’s attention.” Quintana, 973 F.3d at 1029 (quoting Sealock v.
Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (alteration in original). As the Estate
correctly points out, Burnett’s death is certainly “sufficiently serious” to meet the
objective component. Burke v. Regalado, 935 F.3d 960, 992 (10th Cir. 2019) (“We
have held that death is, without doubt, sufficiently serious to meet the objective
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component); see also Booker, 745 F.3d at 430-31 (same); Martinez, 563 F.3d at 1088-
89 (same).
To satisfy the subjective prong, “the official must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.” Quintana, 973 F.3d at 1029 (noting “the Supreme Court
has insisted upon actual knowledge”). A factfinder may conclude an official “‘knew of a
substantial risk from the very fact that the risk was obvious’ . . . to the so-called
‘reasonable man.’” Id.; accord Mata, 427 F.3d at 752. As the Court has already
observed:
[W]hen someone stops breathing, it is obvious that there is a
problem. A reasonable jury could find that when Burnett
showed visible signs he was no longer breathing, there
existed a substantial risk to Burnett’s health that was so
obvious that the Officers had actual knowledge of the risk.
(ECF No. 44 at 20.) The Officers contend “[t]he precise moment Burnett stopped
breathing is unknown.” (ECF No. 77 at 28.) Even so, the Estate points out that the
Officers acknowledged they did not see Burnett’s chest rise and fall (e.g., ECF No. 77 at
15 ¶ 138), at one point commenting that he might be “playing possum” (ECF No. 89 at
15 ¶ 61).
Drawing all inferences in favor of the Estate, the record thus supports a finding
that the Officers detected visible signs Burnett was no longer breathing. Despite this,
Officer Daigle placed a “spit sock” over Burnett’s head. (Id. at 14 ¶ 56.) Moreover, the
Estate asserts that between the time that Officer Daigle announced he believed Burnett
to be unconscious, a minute and a half elapsed before the Officers “accelerated” a
medical response, and four minutes and forty seconds elapsed before Officer Fleming
started chest compressions. (Id. at 15 ¶ 62.) Particularly if the jury determines “the
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Defendants were responsible for placing [Burnett] in his vulnerable state and engaged
in activity . . . that could produce foreseeable, rapid, and deadly consequences,” even
“[a] brief delay in care is particularly problematic.” Booker, 745 F.3d at 432. Thus, the
Court concludes these facts are sufficient to create a genuine issue of material fact as
to whether the Officers knew of a substantial risk of harm.
2. 	Clearly Established
The Court previously held that Estate of Booker clearly established failing to
check Burnett’s breathing, perform CPR, or seek medical care while he was limp,
unconscious, and not breathing for three and a half minutes because of their use of
force was a violation of Burnett’s rights. (ECF No. 44 at 23 (citing 745 F.3d at 434)).
The Officers nonetheless argue they had no duty to provide CPR based on Wilson v.
Meeks, 52 F.3d 1547 (10th Cir. 1995), as abrogated by Crittenden v. City of Tahlequah,
786 F. App’x 795 (10th Cir. 2019). However, Crittenden distinguished Estate of Booker
as a case that was “so materially different from the case at hand that the decision could
not sufficiently put the individual officers on notice that their actions violated Crittenden’s
constitutional rights.” 786 F. App’x at 803. Here, the Court rejects the Officers’
contention that Estate of Booker is so factually dissimilar that it could not have provided
them with notice of the constitutional violation at issue. The Officers point, for example,
to the “dissimilarity in force used.” (ECF No. 77 at 30.) But the Court has already held
the fact that a carotid neck hold, for example, was used in Booker does “not preclude a
finding that the Officers were on notice that their conduct violated Burnett’s rights.”
(ECF No. 44 at 23.)
Therefore, the Court finds that genuine issues of material fact preclude summary
judgment on the Officers’ qualified immunity defense as to the Estate’s claim that they
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failed to provide adequate medical care under the Fourteenth Amendment.
IV. CONCLUSION
For the reasons set forth above, the Individual Defendants’ Motion for Summary
Judgment (ECF No. 77) is DENIED.
Dated this 10th day of January, 2025.
BY THE COURT:
______________________
William J. Martinez
Senior United States District Judge
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