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 GRANTING IN PART AND DENYING IN PART
CITY OF COLORADO SPRINGS’ 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 civil rights under the U.S. Constitution
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”). The parties are
familiar with the facts of the underlying incident from, among other sources, the Court’s
Order Denying the Individual Defendants’ Motion for Summary Judgment. (See ECF
No. 110.)
Before the Court is the City’s Motion for Summary Judgment (“Motion”) (ECF No.
78). The Estate filed a response (ECF No. 90), to which the City filed a reply (ECF No.
102). For the reasons explained below, the Motion is granted in part and denied in part.
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I. LEGAL STANDARD
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).
II. ANALYSIS
A local government unit can be liable for damages under 42 U.S.C. § 1983 only
when its “policy or custom, whether made by its lawmakers or by those whose edicts or
acts may fairly be said to represent official policy, inflicts the injury.” Monell v. Dep’t of
Social Servs. of City of New York, 436 U.S. 658, 694 (1978). The Supreme Court has
thus “required a plaintiff seeking to impose liability on a municipality under § 1983 to
identify a municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury,” thereby
“ensur[ing] that a municipality is held liable only for those deprivations resulting from the
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decisions of its duly constituted legislative body or of those officials whose acts may
fairly be said to be those of the municipality,” rather than holding the municipality liable
simply because it employed a constitutional wrongdoer. Bd. of Cnty. Comm’rs of Bryan
Cnty. v. Brown, 520 U.S. 397, 403–04 (1997).
The relevant policy or custom can take several forms, including:
(1) a formal regulation or policy statement; (2) an informal
custom amounting to a widespread practice that, although
not authorized by written law or express municipal policy, is
so permanent and well settled as to constitute a custom or
usage with the force of law; (3) the decisions of employees
with final policymaking authority; (4) the ratification by such
final policymakers of the decisions—and the basis for
them—of subordinates to whom authority was delegated
subject to these policymakers’ review and approval; or
(5) the failure to adequately train or supervise employees, so
long as that failure results from deliberate indifference to the
injuries that may be caused.
Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010) (internal quotation
marks omitted; alterations incorporated). But, whatever species of policy or custom is
alleged,
[t]he plaintiff must also demonstrate that, through its
deliberate conduct, the municipality was the “moving force”
behind the injury alleged. That is, a plaintiff must show that
the municipal action was taken with the requisite degree of
culpability and must demonstrate a direct causal link
between the municipal action and the deprivation of federal
rights.
Bryan Cnty., 520 U.S. at 404.
The Estate asserts municipal liability on two remaining theories: informal custom
and failure to train.1 The Court finds below that the City is entitled to summary judgment
1 The Court previously dismissed the Estate’s Monell claim based on a ratification
theory. (ECF No. 44 at 26–27.)
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on the Estate’s municipal liability claim based on an informal custom. However,
genuine issues of material fact preclude summary judgment on the Estate’s municipal
liability claim based on the City’s alleged failure to train.
A. 	Informal Custom
“[A]n act performed pursuant to a custom that has not been formally approved by
an appropriate decisionmaker may fairly subject a municipality to liability on the theory
that the relevant practice is so widespread as to have the force of law.” Bryan Cnty.,
520 U.S. at 404 (internal quotation marks omitted); see also City of St. Louis v.
Prapotnik, 485 U.S. 112, 127 (1988) (establishing an informal policy or custom requires
the plaintiff to show that the misconduct was widespread—i.e., that it involved a series
of decisions). “With formal, unwritten policies, customs, or practices, the plaintiff can
plead a pattern of multiple similar instances of misconduct; ‘no set number is required,
and the more unique the misconduct is, and the more similar the incidents are to one
another, the smaller the required number will be to render the alleged policy plausible.’”
Arakji v. Hess, 2015 WL 7755975, at *6 (D. Colo. Dec. 2, 2015) (quoting Griego v. City
of Albuquerque, 100 F. Supp. 3d 1192, 1213 (D.N.M. 2015)).
The Estate relies on three incidents to establish that “Colorado Springs has a
widespread practice of unlawful seizures and arrests, excessive use of force restricting
breathing, and excessive use of tasers.” (ECF No. 90 at 26.) Specifically, it relies on
two incidents occurring in 2009 and 2018 to establish that the City “has a custom of
excessively tasing citizens without warning.” (Id.; see also id. at 17 ¶ 54–56, 66.) And it
relies on the same incident from 2018 and another from 2015 to support that the City
has a custom of excessive use of force. (Id. at 17 ¶¶ 54–61, 62–65.)
While these incidents share some factual similarities, the Court is unprepared to
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say that two to three incidents over the span of nine years is sufficient to establish a
“widespread practice” that is “so permanent and well settled as to constitute a custom or
usage with the force of law.” Bryson, 627 F.3d at 788; see also Sexton v. Faris, 530 F.
Supp. 3d 1044, 1070 (D. Colo. 2021) (“The Court finds that two alleged incidents, one in
2013 and one in 2019, are insufficient to show a practice so permanent and well settled
that it constitutes a custom or usage with the force of law.”); Est. of Kowalski v. Shrader,
2022 WL 19422, at *20 (D. Colo. Jan. 3, 2022) (two incidents occurring over a span of
four to five years insufficient to establish “widespread practice”); Est. of Reat v.
Rodriguez, 2013 WL 3010828, at *5 (D. Colo. June 17, 2013) (three instances spread
over twenty years insufficient to allege pattern); Abila v. Funk, 2016 WL 9021834, at *19
(D.N.M. Dec. 14, 2016) (citing cases in support of the statement that “two or three
instances will not suffice” to establish practice or custom).
The Court thus concludes there is insufficient evidence to establish a Monell
claim based on a widespread practice or informal custom of “unlawful seizures and
arrests, excessive use of force restricting breathing, and excessive use of tasers.” (ECF
No. 90 at 26.) For the same reason, the Motion is granted as to the Estate’s municipal
liability claim based on any alleged informal custom.
B. 	Failure to Train
The Supreme Court has observed that “[a] municipality’s liability for a deprivation
of rights is at its most tenuous where a claim turns on a failure to train.” Connick v.
Thompson, 563 U.S. 51, 61 (2011). Thus, “[t]o satisfy the stringent deliberate
indifference standard, ‘[a] pattern of similar constitutional violations by untrained
employees is ‘ordinarily necessary.’’” Waller v. City & Cnty. of Denver, 932 F.3d 1277,
1285 (10th Cir. 2019) (quoting Connick, 563 U.S. at 62.) Nevertheless, the Supreme
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Court has “reaffirmed single-incident failure-to-train municipal liability ‘in a narrow range
of circumstances[] [where] a violation of federal rights may be a highly predictable
consequence of a failure to equip law enforcement officers with specific tools to handle
recurring situations.” Bryan Cnty., 520 U.S. at 409.
The Estate does not cite “a pattern of constitutional violations” to support its claim
that the City is subject to municipal liability because it failed to train its police officers.
Coupled with its reliance on Valdez v. Macdonald, the Court can only assume that the
Estate intends to rely on the single-incident failure-to-train municipal liability theory. 66
F.4th 796, 815–822 (10th Cir. 2023) (analyzing single-incident municipal liability for
deficient training). The Court thus analyzes the Estate’s claim under the Tenth Circuit’s
“most recent articulation of the single-incident failure-to-train claim: (1) ‘the existence of
a [municipal] policy or custom involving deficient training’; (2) an injury caused by the
policy that is ‘obvious’ and ‘closely related’; and (3) that the municipality adopted the
‘policy or custom with deliberate indifference’ to the injury.” Id. at 816–17 (quoting
Lance v. Morris, 985 F.3d 787, 800 (10th Cir. 2021)).
The Estate identifies several topics on which it asserts the City deficiently trained
Colorado Springs Police Department (“CSPD”) officers—namely, (1) “responding to
individuals experiencing a mental health crisis,” (2) “warrant requirements” and “exigent
circumstances and hot pursuit,”2 (3) “use of tasers,” (4) “dangers of prone restraint,” and
(5) “proper medical assistance for people who have become unresponsive.” (ECF No.
2 The Estate identifies “warrant requirements” and “exigent circumstances and hot
pursuit” as two separate topics on which the City failed to adequately trained CSPD officers.
(See ECF No. 90 at 21–22.) Finding them to be interrelated, the Court analyzes those topics in
tandem below.
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90 at 19–20.) As to each of these topics, it is not enough “to show that there were
general deficiencies in the [municipality’s] training program.” Porro v. Barnes, 624 F.3d
1322, 1328 (10th Cir. 2010). Rather, the Estate must “identify how training was
inadequate.” Hughes v. Kvasnicka, 2014 WL 36627, at *4 (D. Colo. Jan. 6, 2014)
(emphasis added).
Moreover, to satisfy the causation element of its single-incident failure-to-train
claim, the Estate must show that “the injury [would] have been avoided had the
employee been trained under a program that was not deficient in the identified
respect[s].” City of Canton, Ohio v. Harris, 489 U.S. 378, 391 (1989). Finally, it must
show the Tenth Circuit’s three-part test for deliberate indifference is satisfied as to each
of the training deficiencies it has identified by demonstrating: “(i) the municipality's
policymakers know to a moral certainty that their employees will confront a given
situation; (ii) the situation presents the employee with a difficult choice of the sort that
training or supervision will make less difficult; and (iii) [t]he wrong choice will frequently
cause the deprivation of a citizen's constitutional rights.” Valdez, 66 F.4th at 817
(citations omitted).
The Court undertakes the three-part analysis for a single-incident failure-to-train
claim as to each training deficiency asserted by the Estate below.
1. 	Responding to Individuals Experiencing a Mental Health Crisis
The Estate correctly points out that the City did not move for summary judgment
as to the claim that the City inadequately trained officers on responding to individuals
experiencing a mental health crisis. (See generally ECF No. 78.)3 Indeed, the City did
3 While the City’s Motion mentions officer training on “de-escalation,” the Court is not
persuaded this is one and the same with responding to an individual experiencing a mental
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not address the Estate’s claim that officers are inadequately trained on responding to
individuals experiencing a mental health crisis until its reply. (ECF No. 102 at 8–9.)
Those arguments are waived. See U.S. v. Harrell, 642 F.3d 907, 918 (10th Cir. 2021).
As a consequence, the Court concludes the Estate may proceed on a claim that
the City failed to adequately train officers on “call[ing] a critical response team to assist
with calls involving a mental health crisis,” consistent with the opinion provided by the
Estate’s expert. (ECF No. 90 at 20; ECF No. 90-2 at 34; see also ECF No. 90-4
(Fleming Dep.) at 36:10-17 (testifying the purposes of the Crisis Response Team was
“to offer mental health resources to persons in crisis” only “when there is not a criminal
aspect at the forefront”).)
2. 	Warrant Requirements and Hot Pursuit
With regard to Fourth Amendment warrant requirements and its exceptions, the
Estate specifically contends the City inadequately trained officers on “how to obtain a
warrant quickly or under what circumstances a search warrant is needed” and “warrant
exceptions, including training on exigent circumstances and the hot pursuit doctrine.”
(ECF No. 90 at 21.)
As evidence in support, the Estate submits the expert report of Michael D.
Lyman, Ph.D., who opines that CSPD’s training materials “fail[] to conform with
nationally accepted standards” on “how to obtain a warrant quickly or under what
circumstances a search warrant is needed.” (ECF No. 90-2 at 15.)4 Although the City’s
health crisis. (ECF No. 78 at 12; see also ECF No. 44 at 27 (observing the Estate alleged “that
CSPD officers were not trained on how to respond to citizens experiencing mental health crises”
and, separately, “to deescalate encounters”).)
4 As a preliminary matter, the Court presumes the City and Dr. Lyman’s reference to
“search warrant[s]” is inadvertent, as the relevant quote in Dr. Lyman’s report appears under the
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Rule 30(b)(6) witness, Sergeant Marcus VanOoyen, testified that officers are “supposed
to be” trained on “the process of obtaining a warrant” (ECF No. 90-1 (VanOoyen Dep.)
at 79:10-19), Dr. Lyman opines that the Officers’ deposition testimony in this case
demonstrates “they did not obtain a warrant because of the amount of time it was going
to take” and because they believed “the requirements for obtaining a warrant were so
impractical that it was not a serious consideration” (ECF No. 90-2 at 14). The Court
notes that one of the City’s policies reviewed by Dr. Lyman states “officers are
encouraged to always obtain a warrant if time and circumstances permit.” (Id. at 15
(emphasis added).)
Moreover, the Officers’ testimony suggests they had a conflicting understanding
of how they may be able to obtain a warrant under more time-sensitive circumstances.
(ECF No. 90-3 (Daigle Dep.) at 40:9-11 (testifying obtaining an arrest warrant “could
have taken up to several hours”); ECF No. 90-4 (Fleming Dep.) at 79:1-4 (“I would say
when—under an hour, I think is a safe bet for hearing back from an on-call judge. I
haven’t done it a ton of times.”).) The City argues the Estate’s argument in this regard
“does not identify training on an alternate process to procure a warrant, only criticism
that the current practice should be quicker.” (ECF No. 102 at 10.) However, Officer
Fleming’s deposition testimony suggests a quicker process did exist. (See ECF No. 90-
2 at 14 (“Officer Fleming testified that had they chosen to seek a warrant, it could have
been approved by a judge in less than an hour.”).)
heading, “Failure to train on obtaining arrest warrants” in the report of the Estate’s expert. (ECF
No. 90-2 at 15.) To eliminate any doubt, the Estate’s claim with respect to warrants will be
limited to the topic of arrest warrants, as the Court does not understand the failure to obtain a
search warrant to be at issue in this case.
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Specifically with respect to hot pursuit, Dr. Lyman also opines that “[t]raining on
hot pursuits must teach officers that there needs to be an immediate and continuous
pursuit of a fleeing suspect from the scene of a crime if an arrest has been set in
motion.” (ECF No. 90-2 at 18.)5 But “CSPD’s training materials on exceptions to the
warrant requirements, including for hot pursuit, are so general that they fail to train
officers on the contents of the law.” (Id. at 15.) Indeed, “[n]one of the City’s training
materials explain immediate or continuous pursuit in the context of hot pursuit.” (ECF
No. 90 at 21; see also ECF No. 90-1 (VanOoyen Dep.) at 102:5-7 (training materials do
not include “any explanation of immediate or continuous pursuit”).) The City does not
know whether it is otherwise discussed by individual instructors during academy
classes, (ECF No. 90-1 (VanOoyen Dep.) at 105:7-13), nor if it is covered in reality-
based scenario training (id. at 109:3-5 (“Q: Do any of the scenarios involve chasing a
person into a house? / A: Not that I’m aware of.”)).
Viewing these facts in the light most favorable to the Estate, the Court concludes
there is a genuine issue of material fact as to whether the City inadequately trained
CSPD officers as to (1) whether the time and impracticability of obtaining a warrant
alone are adequate to give rise to a warrant exception, (2) the process for obtaining an
arrest warrant on an expedited basis, and (3) the constitutional boundaries of the hot
5 The City challenges Dr. Lyman’s opinions in part because they “are not grounded in
any specialized knowledge.” (ECF No. 102 at 11.) The City provides no further explanation for
this point, nor has it filed a motion to exclude Dr. Lyman’s opinions under Federal Rule of Civil
Procedure 702. The Court does not otherwise need to determine at the summary judgment
stage whether he is qualified to testify under Rule 702. Mountain Food, LLC v. Sentry Ins. a
Mutual Co., 636 F. Supp. 3d 1307, 1313 (D. Colo. 2022); Brown v. Perez, 835 F.3d 1223, 1232
(10th Cir. 2016) (noting that evidence at the summary judgment stage does not need to be
submitted in a form that is admissible at trial; only the underlying content or substance of the
evidence must be admissible); Matthiesen v. Banc One Mortg. Corp., 173 F.3d 1242, 1247
(10th Cir. 1999).
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pursuit exception to the warrant requirement.
With respect to causation, the Officers argue that “the failure to obtain a warrant
would not have led to a different outcome.” (ECF No. 102 at 10.) However, the relevant
injury in this context is not Burnett’s death but the violation of his Fourth Amendment
rights. Had the Officers obtained a warrant, there would, of course, have been no
warrantless entry and no such Fourth Amendment violation. For similar reasons, the
Court concludes a factfinder could reasonably infer that violations of citizens’ Fourth
Amendment rights would inevitably result from a failure to train officers (1) that time and
impracticability considerations are alone insufficient to circumvent the warrant
requirement, (2) on available procedures for obtaining a warrant on an expedited basis
where the circumstances call for it, and (3) on the boundaries of the hot pursuit
exigency exception to the warrant requirement. See also City of Canton, 489 U.S. at
390 n. 10 (“city policymakers know to a moral certainty that their police officers will be
required to arrest fleeing felons”).
Notwithstanding, given that the only recognized warrant exception remaining at
issue is whether the Officers’ warrantless entry was justified by hot pursuit (see ECF
No. 110), the Court finds causation is not satisfied to the extent the Estate intends to
argue the City failed to adequately train officers on other categories of exigencies.
Moreover, as the Court does not understand the Estate to be proceeding on a claim that
the Officers violated Burnett’s Fourth Amendment rights by conducting an illegal
protective sweep, the Estate may not base its failure to train claim on this basis either.
(See ECF No. 90 at 22.)
Nonetheless, for the reasons set forth above, the City’s Motion is denied to the
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extent that genuine issues of material fact preclude summary judgment on the Estate’s
Monell claim that the City failed to adequately train officers on (1) whether the time
required to obtain a warrant is itself a justification for warrantless entry, absent other
constitutionally recognized exigent circumstances; (2) the City’s then-existing process
for obtaining a warrant on an expedited basis through an on-call judge; and (3) the
constitutional boundaries of the hot pursuit exigency.
3. 	Use of Tasers
The Estate next asserts that the City “failed to train officers on the proper use of
a [t]aser.” (ECF No. 90 at 22.)
Specifically, the Estate asserts the fact that Sergeant Inazu—“a supervising
sergeant with over twenty years of experience”—directed Officer Fleming and Officer
Daigle that they could tase Burnett if he came within 21 feet and directed Officer Barth
to sneak around Burnett’s house and tase him is itself evidence the City “trained
Sergeant Inazu that it was proper to tase suspects without warning.” (Id.; see also ECF
No. 77-1 at 5:15-5:20; ECF No. 77-7 at 18:40-18:50, 40:00-40:15.)6 The City counters
that Officer Barth was trained on the use of a taser, including that she “completed at
least eight hours of training at the academy” to “receive [her] certification to operate a
taser.” (ECF No. 78-7 at ¶ 11.) However, none of the evidence cited by the City
supports the position that Officer Barth—nor any of the other Officers—were trained on
the legality of tasing a suspect without warning. The Court remains mindful that just
because the City provides some training on the operation of a taser “does not meant
6 The Estate cites to “Ex. A” and “Ex. G,” which the Court understands to be Exhibit A
and Exhibit G to the Individual Defendants’ Motion for Summary Judgment (ECF No. 77).
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there is no need for more or different training.” Valdez, 66 F.4th at 818 (internal
quotation marks omitted).
The Court thus agrees with the Estate there is sufficient evidence to create a
genuine issue of material fact as to whether the City failed to train CSPD officers on the
use of a taser without providing warning to the suspect, or first attempting to obtain
compliance by use of a lesser amount of force, such as verbal commands. (See also
ECF No. 110.) To the extent the jury finds such a training deficiency exists, it could also
reasonably conclude its causal connection to the Estate’s claim that the Officers used
excessive force in violation of Burnett’s Fourth Amendment rights by, in part, tasing him
without warning or providing him an opportunity to peaceably submit to an arrest is
obvious and closely related. (See id. at 30–31.)
The Court is further convinced that a reasonable factfinder could determine the
City’s policymakers knew to a moral certainty in May 2020 that its officers would be
faced with situations in which they must decide whether to use a taser, and if they are
not trained on the circumstances in which they must provide a warning to suspects
before doing so, “[t]he wrong choice will frequently cause the deprivation of a citizen’s
constitutional rights” through the use of excessive force. Lance, 985 F.3d at 802.
The City’s Motion is thus denied to the extent that genuine issues of material fact
preclude summary judgment on the Estate’s Monell claim that the City failed to
adequately train officers on when tasing a suspect is a proportional use of force—
specifically, by failing to train officers on when they should give an arrestee an
opportunity to comply with a lesser use of force and/or provide a warning to the suspect
prior to using a taser on him or her.
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4. 	Prone Restraint
The Estate next asserts the City “failed to train its officers on the extreme
dangers of prone restraint.” (ECF No. 90 at 22.)
Here again, the Estate relies on expert evidence to support that “the officers are
not properly trained on the dangers of prone restraint.” (ECF No. 90-2 at 27.) Dr.
Lyman opines that “[a] reasonably trained officer would know that as soon as restraints
are placed on an arrestee, they should not be permitted to remain in a face down prone
position.” (Id.) “Rather, they should be positioned in a ‘recovery position’ which means
they should be rolled on their side or sat up to permit them the ability to breathe.” (Id.)
Based on the Officers’ conduct at issue in this case, it is Dr. Lyman’s opinion that they
“failed to follow the required policy and training to minimize the use of a prone restraint
and bring [] Burnett to a ‘Recovery position.’” (Id.)
The City counters that officers are trained on topics like its sudden custody death
policy, positional asphyxia, sudden death syndrome, and “the dangers of placing an
individual on their stomach for prolonged periods of time and respiratory compromise.”
(ECF No. 102 at 12.) However, even the City’s Rule 30(b)(6) witness, Sergeant
VanOoyen, testified at deposition that it is in the officers’ discretion to decide when to
move an arrestee into a recovery position “based on the totality of the circumstances
when they believe it is safe to do so.” (ECF No. 90-1 (VanOoyen Dep.) at 142:1-11; see
also ECF No. 90-5 (Inazu Dep.) at 119:1-7 (testifying he was trained on the “[r]ecovery
position” but “when to do that, there’s some subjectivity based on the totality of the
circumstances”); ECF No. 90-4 (Fleming Dep.) at 121:24-125:5 (“Q: Do you have any
training . . . based on how long a person . . . who’s in a prone position should be there
before they’re moved? / [objection from counsel] / A: I don’t recall, like, a specific
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number of minutes, or anything like that.”).)
Based on the foregoing evidence, the Court concludes there is a genuine issue
of material fact as to whether the City failed to train officers on (1) the importance of
minimizing the length of time an arrestee is in prone restraint, (2) timely bringing them
into a recovery position, and (3) the appropriate handling of an arrestee in prone
restraint to minimize the risk of positional asphyxia. To the extent the jury concludes
such training failures occurred, the Court finds there is also sufficient evidence for the
jury to conclude it was causally related to the Estate’s claim that the Officers violated
Burnett’s constitutional rights by using excessive force while he was in a prone position
(see ECF No. 110 at 9–12), as well as to the Estate’s claim that the Officers provided
inadequate medical care to Burnett in violation of his Fourteenth Amendment rights—
particularly to the extent the jury finds the Officers’ use of prone restraint increased the
risk of harm to Burnett. See Est. of Booker v. Gomez, 745 F.3d 405, 432 (10th Cir.
2014) (as relevant to the subjective component of the claim, taking into consideration
whether “Defendants were responsible for placing Mr. Booker in his vulnerable state
and engaged in activity . . . that could produce foreseeable, rapid, and deadly
consequences”).
The Court also concludes there are sufficient facts for the jury to find deliberate
indifference, including because the City’s policymakers knew to a moral certainty that
officers would confront situations where they must decide whether to place an arrestee
in a prone restraint, at what point they should be moved to a recovery position, and the
appropriate type or level of additional force to use while the arrestee is in a prone
restraint.
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For these reasons, the City’s Motion is denied as to the Estate’s claim that the
City failed to adequately train officers on (1) minimizing the use of prone restraint,
particularly after other restraints (e.g., handcuffs) have been applied; (2) timely
transitioning an arrestee into a recovery position after other restraints have been
applied; and (3) the appropriate type or level of additional force to use while the arrestee
is in a prone restraint.
5. 	Providing Medical Assistance
Finally, the Estate asserts the City fails to adequately train officers “on examining
detainees for signs of acute medical distress, including agonal breathing, proper
positioning of restrained individuals, timely calls for expedited medical response, and
when to begin appropriate life-saving measures such as CPR.” (ECF No. 90 at 22-23.)
The Estate cites its expert’s opinion that the “officers’ testimony in this case
indicates a lack of proper training as to the options available to provide medical
attention to a person who is no longer breathing.” (ECF No. 90-2 at 28.) Dr. Lyman
further opines that “the officer’s failure to step medical up sooner indicates that they are
not properly trained to identify a need for more emergent medical care.” (Id.; see also
ECF No. 90-3 (Daigle Dep.) at 153:14-16 (“Q: Are you trained on identifying it, agonal
breathing? / A: Not that I recall, no.”).)
The City counters that all CSPD officers are CPR certified (ECF No. 78 at ¶ 34)
and trained to observe an individual from head-to-stomach for signs of breathing (ECF
No. 78 at ¶ 47.) Indeed, there appears to be no dispute that the officers were CPR
certified and trained in first aid. (See, e.g., ECF No. 90-2 at 28 (similarly observing the
Officers “were provided CPR and first aid training in their state mandated basic
academy”).) Nonetheless, the Estate contends the Officers’ CPR training on monitoring
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an arrestee’s breathing, for example, is inadequate because it is limited to observing a
chest rise and fall. (ECF No. 90-3 at 81:12–20 (“Q: And what is the training on checking
someone’s breathing? / A: You verify if you can see the chest rise and fall. / Q: Do you
check – for breathing, do you check anything else other than the chest rise and fall? / A:
Chest rise and fall and the pulse, and that’s all, from what I remember from CPR
training.”).)
Based on the foregoing, the Court finds there is sufficient evidence to create a
genuine issue of fact as to whether the City fails to train officers on providing “[p]roper
medical assistance [to] people who have become unresponsive” after arrest. (ECF No.
90 at 22.) In the Court’s view, a reasonable factfinder could also find such training
failures are causally related to the Estate’s claim that the Officers failed to provide
Burnett with adequate medical care pursuant to the Fourteenth Amendment. (See ECF
No. 110.) However, here, the Estate’s claim will be limited to a failure to train officers on
providing appropriate medical assistance to detainees when they become unresponsive
in close temporal proximity to a struggle with police. For instance, to the extent the
Estate contends the City failed to train officers on “examining detainees for signs of
acute medical distress” other than agonal breathing, any such “signs of acute medical
distress” should be limited to those the Estate contends were exhibited by Burnett
during the incident at issue.
In this way, the jury could find that the City’s policymakers acted with deliberate
indifference by failing to train officers on monitoring detainees and providing them with
appropriate emergency medical assistance when they become unresponsive after a
struggle with police, as the officers’ failure to respond emergently in such situations will
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frequently cause the deprivation of citizens’ constitutional right to adequate medical care
while in custody.
For all these reasons, the Motion is denied as to the Estate’s Monell claim based
on the City’s failure to train officers on examining detainees for signs of acute medical
distress after a police struggle and providing an appropriate emergent medical response
when faced with any such signs.
III. CONCLUSION
For the foregoing reasons, the City’s Motion for Summary Judgment (ECF No.
78) is GRANTED IN PART and DENIED IN PART as follows:
1. 	The Motion is GRANTED as to the Estate’s Monell claim based on any
informal custom;
2. 	The Motion is otherwise DENIED as more fully set forth above; and
3. 	This case remains set for a Final Trial Preparation Conference on April
25, 2025 at 2:00pm and a 9-day Jury Trial to commence on May 12, 2025
at 8:30am in Courtroom A 801.
Dated this 23rd day of January, 2025.
BY THE COURT:
______________________
William J. Martinez
Senior United States District Judge
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