Sholes v. McIntyre et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-01664-STV
TANNER SHOLES,
Plaintiff,
v.
THE CITY OF CRAIG COLORADO,
KC HUME,
CHIP MCINTYRE,
KURTIS LUSTER,
NATE BUSINGER,
BRANDON MONTOYA,
MATT HAMMER,
DALTON CAUDELL, and
TRACEY MENDOZA,
Defendants.
______________________________________________________________________
ORDER
______________________________________________________________________
Chief Magistrate Judge Scott T. Varholak
This matter comes before the Court on the Moffat County Defendants’ Motion to
Dismiss (the “Moffat Motion”) [#33] and the City of Craig Defendants’ Motion to Dismiss
(the “Craig Motion”) [#34] (collectively, the “Motions”). The parties have consented to
proceed before the undersigned United States Magistrate Judge for all proceedings,
including entry of a final judgment. [##19, 21] 	The Court has carefully considered the
Motions and related briefing, the entire case file, and the applicable case law, and has
determined that oral argument would not materially assist in the disposition of the
Motions. 	For the following reasons, the Motions are GRANTED IN PART and DENIED
IN PART.
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I. 	BACKGROUND1
The Complaint asserts several claims arising out of Plaintiff Tanner Sholes’ arrest.
[See generally #32] 	According to the operative Complaint, on September 22, 2023, at
approximately 7:05 a.m., officers of the Craig Police Department (“CPD”) received a
phone call from Michelle Tucker notifying the police that a male individual was observed
carrying a rifle on foot through the City of Craig. 	[Id. at ¶ 18] 	A short time later, CPD
received a second call of a male party with a rifle. [Id. at ¶ 19] CPD dispatched several
officers to locate the man and, at approximately 7:11 a.m., CPD Officer Tracey Mendoza
identified Plaintiff as the man with the rifle. 	[Id. at ¶ 21] 	Officer Mendoza specifically
observed the barrel of a rifle poking out from beneath Plaintiff’s outer shirt. [Id.]
Over the course of the next hour, officers from both the CPD and the Moffat County
Sheriff’s Office (“MCSO”) surveilled Plaintiff as he travelled north through Craig and
eventually Moffat County, an open carry county in Colorado. [Id. at ¶ 22] MCSO officers
included Undersheriff Chip McIntyre, Lieutenant Nate Businger, Sergeant Matt Hammer,
Investigator Dave Siminoe, and Sergeant Kurtis Luster. 	[Id.] 	CPD officers included
Officer Mendoza and Commander Doug Conrad. [Id.]
As Plaintiff continued to walk north along Highway 13, dispatch informed officers
that Plaintiff was restrained from possessing a firearm as a result of three protection
orders. [Id. at ¶ 25] Undersheriff McIntyre, Commander Conrad, and Sergeant Hammer
each allegedly observed Plaintiff obstructing traffic, though no video footage corroborates
1 The facts are drawn from the allegations in Plaintiff’s Third Amended Complaint (the
“Complaint”) [#32], which the Court accepts as true at this stage of the proceedings.
Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662
F.3d 1152, 1162 (10th Cir. 2011)).
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these allegations. 	[Id. at ¶¶ 25-27] 	As a result of these observations, at approximately
8:15 a.m., Lieutenant McIntyre decided to close Highway 13 to the public. [Id. at ¶ 28]
At approximately 8:30 a.m., Plaintiff turned off Highway 13 onto an adjacent
unmarked road (the “Unmarked Road”). [Id. at ¶ 29] At the end of the Unmarked Road
was a private residence owned by Curtis Cook. [Id. at ¶ 45] There are two other homes
that share the Unmarked Road. [Id. at ¶ 49] There are not any markings to suggest that
the Unmarked Road was anything other than a public roadway. [Id. at ¶ 46]
Prior to Plaintiff turning onto the Unmarked Road, officers had not sought to contact
Plaintiff. 	[Id. at ¶ 30] 	From the time of the initial 911 call until Plaintiff turned onto the
Unmarked Road, Plaintiff had traveled more than four miles and had walked past 70
private residences. 	[Id. at ¶¶ 33-41] 	Plaintiff walked past these homes without any
incident or any threat of harm. [Id. at ¶ 42]
Nonetheless, once Plaintiff turned onto the Unmarked Road, Undersheriff McIntyre
gathered a team of MCSO and CPD officers to contact Plaintiff. [Id. at ¶¶ 54-55] To this
point, Plaintiff had not removed the rifle or made any threatening gestures. [Id. at ¶ 61]
The team included Undersheriff McIntyre, Lieutenant Businger, Sergeant Hammer,
Sergeant Luster, MCSO Deputy Brandon Montoya, Officer Mendoza, and CPD Sergeant
Dalton Caudell. 	[Id. at ¶ 54] 	Undersheriff McIntyre instructed the officers to gather into
two vehicles to pursue Plaintiff. 	[Id. at ¶ 55] 	Undersheriff McIntyre drove one of the
vehicles and Lieutenant Businger drove the other. 	[Id.] 	The plan was for Undersheriff
McIntyre to issue verbal commands to Plaintiff and for Lieutenant Businger to drive behind
Plaintiff, and to drive his vehicle into Plaintiff depending on Plaintiff’s compliance with
Undersheriff McIntyre’s orders. 	[Id. at ¶ 56] 	The decision to potentially hit Plaintiff with
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Lieutenant Businger’s vehicle was based upon the following factors: (1) Plaintiff’s criminal
history, including incidents where he resisted arrest and/or bore other weapons; (2)
Plaintiff’s 	unknown 	mental 	state; 	(3) 	Plaintiff’s 	failure 	to 	comply 	with 	Undersheriff
McIntyre’s orders; (4) the possibility that Plaintiff could force the officers into an altercation
whereby they would need to use deadly force; and (5) statements by Plaintiff’s former
girlfriend suggesting that Plaintiff may attempt suicide-by-cop. 	[Id. at ¶¶ 57-59] 	The
officers formulated this plan despite the fact that they had access to a variety of non-lethal
tools, including tasers and less-than-lethal ammunition. [Id. at ¶ 64]
As 	the 	officers 	approached 	Plaintiff 	in 	their 	vehicles, 	Undersheriff 	McIntyre
commanded Plaintiff to drop to the ground. [Id. at ¶ 80] At first, Plaintiff did not respond
to the command. [Id. at ¶ 81] Undersheriff McIntyre thus repeated the order a few times
over approximately fifteen seconds, eventually identifying the officers as members of the
MCSO. [Id. at ¶¶ 81-82] Plaintiff continued walking but held his arms in the air, showing
that his hands were empty. [Id. at ¶ 83] Approximately twenty seconds later, Lieutenant
Businger accelerated his vehicle—an SUV equipped with large metal push bars—toward
Plaintiff at the rate of approximately twenty to thirty miles per hour. [Id. at ¶¶ 84-86] As
Plaintiff turned around to face the vehicle, the vehicle struck Plaintiff thereby throwing
Plaintiff into the air, eventually landing in a nearby ditch. [Id. at ¶¶ 87-88] Officers then
restrained Plaintiff and discovered that the rifle was, in fact, a BB gun. [Id. at ¶¶ 89-91]
After the incident, Plaintiff was unable to bend his left knee. [Id. at ¶ 95] Officers
called for an ambulance and the ambulance transported Plaintiff to Memorial Regional
Hospital (“Memorial”). 	[Id. at ¶¶ 97-99] 	Medical personnel at Memorial mistakenly
examined Plaintiff’s right leg and cleared Plaintiff to be transported back to the jail. [Id. at
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¶¶ 103-04] Deputy Montoya heard Plaintiff complain about pain to his left leg, observed
that Plaintiff was unable to bend his left leg, and confirmed with Memorial staff that they
had not observed Plaintiff’s left leg. [Id. at ¶¶ 105, 107, 109] Nonetheless, officers forced
Plaintiff into the transport vehicle, despite his cries of pain, and transported him to the jail
where his injuries were left untreated. 	[Id. at ¶¶ 108-109] 	Once Plaintiff was released
from jail, he was examined at Poudre Valley Hospital (“PVH”) where his injuries were
finally diagnosed. 	[Id. at ¶ 110] 	Plaintiff’s serious physical injuries included: (1) a
complete ACL rupture, (2) a complex tear of the lateral meniscus, (3) a horizontal tear of
the medial meniscus, (4) a Grade 1 MCL injury, (5) rotator cuff tendinopathy, and (6) bicep
tendinopathy with partial tear. [Id. at ¶ 92]
On June 13, 2024, Plaintiff filed the instant action. [#1] 	The operative Complaint
asserts three claims: (1) excessive force in violation of the Fourth Amendment, pursuant
to 42 U.S.C. § 1983 [#32 at ¶¶ 131-143]; (2) failure to hire, investigate, train, supervise,
and discipline, pursuant to 42 U.S.C. § 1983 [id. at ¶¶ 144-165]; and (3) excessive force
in violation of Colo. Rev. Stat. § 13-21-131 and Article II, Section 7 of the Colorado
Constitution [id. at ¶¶ 166-186]. 	Defendants filed the Motions on September 9, 2024.
[##33, 34] Plaintiff has responded to the Motions [##37, 38] and Defendants have replied
[##39, 40].
II. 	STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint
for “failure to state a claim upon which relief can be granted.” In deciding a motion under
Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and
view these allegations in the light most favorable to the plaintiff.” 	Casanova v. Ulibarri,
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595 F.3d 1120, 1124 (10th Cir. 2010) (alteration in original) (quoting Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009)). 	Nonetheless, a plaintiff may not rely on
mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action
will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the
scope of the allegations in a complaint: if they are so general that they encompass a wide
swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims
across the line from conceivable to plausible.’” 	Robbins v. Oklahoma, 519 F.3d 1242,
1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff
to frame a ‘complaint with enough factual matter (taken as true) to suggest’ that he or she
is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The Court’s ultimate duty is
to “determine whether the complaint sufficiently alleges facts supporting all the elements
necessary to establish an entitlement to relief under the legal theory proposed.” 	Forest
Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
III. 	ANALYSIS
The Court analyzes the federal claims first (Claims One and Two) and then turns
to the state claim (Claim Three).
A. 	Federal Claims
In Claim One Plaintiff seeks relief against all Defendants under 42 U.S.C. § 1983
(“Section 1983”) for use of excessive force in violation of the Fourth Amendment. [#32 at
¶¶ 131-143] 	In Claim Two, Plaintiff seeks relief under Section 1983 against Defendant
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KC Hume, in his official capacity as the Moffat County Sheriff, and against the City of
Craig, arguing that a municipal policy or custom directly caused his injury. [Id. at ¶¶ 144-
165]
The individual Defendants assert that they are entitled to qualified immunity. [##33
at 5-10; 34 at 5-11] Defendants Hume and Craig argue that Plaintiff has failed to plausibly
allege a municipal liability claim. [##33 at 11-15; 34 at 12-15] The Court addresses each
of Plaintiff’s claims in turn.
1. 	Claim One: Excessive Force
Plaintiff seeks relief under Section 1983 for the alleged use of excessive force by
the individual Defendants in violation of Plaintiff’s Fourth Amendment rights. 	[#32 at
¶¶ 131-143] “[C]laims 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). “The reasonableness of the use of force
is evaluated under an ‘objective’ inquiry that pays ‘careful attention to the facts and
circumstances of each particular case.’” Cnty. of Los Angeles v. Mendez, 581 U.S. 420,
428 (2017) (quoting Graham, 490 U.S. at 396). 	In particular, Graham identified the
following factors the Court should consider: “[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.” 490 U.S.
at 396. 	“The operative question in excessive force cases is whether the totality of the
circumstances justifie[s] a particular sort of search or seizure.” Mendez, 581 U.S. at 427–
28 (quotation omitted). “The ‘reasonableness’ of a particular use of force must be judged
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from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.” Graham, 490 U.S. at 396. With these principles in mind, the Court analyzes
Plaintiff’s excessive force claims against the individual Defendants.
a. 	Constitutional Violation
The Court first analyzes whether the individual Defendants’ conduct violated
Plaintiff’s Fourth Amendment rights.
i. 	The First Graham Factor
The first Graham factor looks to the severity of the crime at issue. 490 U.S. at 396.
Here, Plaintiff was suspected of being a felon in possession of a firearm. [##32 at ¶¶ 18-
20 (911 calls of male party seen carrying a rifle), 21 (Officer Mendoza observing the barrel
of a rifle poking out from Plaintiff’s outer shirt); 33-1 at 9 (showing a felony trespass
conviction), 17 (showing a felony vehicular eluding conviction), 29 (showing a felony
domestic violence, habitual offender conviction), 32 (showing a felony possession of a
weapon by a previous offender conviction), 33 (showing a felony menacing conviction)]2
This is a felony under both state and federal laws. 18 U.S.C. § 922(g); Colo. Rev. Stat.
§ 18-12-108. 	And felon in possession of a firearm is a serious crime. 	Urbina v. Sikes,
No. MO:18-CV-00100-DC, 2021 WL 11691311, at *4 (W.D. Tex. June 11, 2021);
2 Plaintiff argues that he pled that he was only suspected of a misdemeanor and the Court
must accept that fact as true. [#37 at 16] But the Complaint references Plaintiff’s criminal
history as one of the reasons that the officers struck Plaintiff and this allegation is central
to the Complaint. [#32 at ¶ 57.a] And where a plaintiff does not incorporate by reference
or attach a document to its complaint, but the document is referred to in the complaint
and is central to the plaintiff’s claims, the defendant may submit an indisputably authentic
copy to the Court to be considered on a Motion to dismiss. 	GFF Corp. v. Associated
Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997). And factual allegations
that contradict a properly considered documents are not well-pleaded facts that the Court
must accept as true. Id. As a result, the Court does not accept as true that the officers
lacked probable cause to believe Plaintiff had committed a felony offense.
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Hayenga v. Garth, No. 18-cv-02038-KLM, 2019 WL 2471086, at *5 (D. Colo. June 13,
2019); Peppar v. City of San Antonio, No. 5:16-CV-221-DAE, 2019 WL 13537727, at *9
(W.D. Tex. March 19, 2019). Thus, the first Graham factor weighs in favor of Defendants.
ii. 	The Second Graham Factor
The second Graham factor asks whether the suspect posed an immediate threat
to the safety of the officers or others. 	490 U.S. at 396. 	This factor “is undoubtedly the
most important and fact intensive factor in determining the objective reasonableness of
an officer’s use of force.” Pauly v. White, 874 F.3d 1197, 1216 (10th Cir. 2017) (quotation
omitted). While courts should consider “whether the officers were in danger at the precise
moment that they used force,” “[i]t is the totality of the circumstances that is the touchstone
of the reasonableness inquiry.” 	Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1315-18
(10th Cir. 2009) (quotation omitted). 	“Indeed, ‘[s]trict reliance on the “precise moment”
factor is inappropriate when the totality must be considered’ and a ‘reasonable but
mistaken belief that the suspect is likely to fight back [will] justif[y] using more force than
is actually needed.’” Aragon v. Collings, No. 2:18-cv-00620, 2023 WL 5807307, at *8 (D.
Utah 	June 	28, 	2023) 	(quoting 	Thomson, 	584 	F.3d 	at 	1315-18), 	report 	and
recommendation adopted, 2023 WL 5217809 (D. Utah Aug. 15, 2023).
Because Lieutenant Businger used deadly force,3 his use of force is only justified
if he had “probable cause to believe that there was a threat of serious physical harm to
[himself] or to others.” 	Estate of Larsen v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008)
3 “Deadly force is such force that create[s] a substantial risk of causing death or serious
bodily harm.” Clark v. Bowcutt, 675 F. App’x 799, 806 (10th Cir. 2017) (emphasis omitted)
(quoting Thomson v. Salt Lake Cty., 584 F.3d 1304, 1313 (10th Cir. 2009)). 	The Court
concludes, for purposes of this Order, that striking an individual with a vehicle traveling at
up to thirty miles per hour constitutes deadly force.
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(quotation omitted) (emphasis in original). 	In assessing the degree of threat facing
officers, the Tenth Circuit considers four non-exclusive factors (the “Larsen factors”).
These include:
(1) whether the officers ordered the suspect to drop his weapon, and the
suspect’s compliance with police commands; (2) whether any hostile
motions were made with the weapon towards the officers; (3) the distance
separating the officers and the suspect; and (4) the manifest intentions of
the suspect.
Id. The Court assesses each factor in turn.
A. 	The First Larsen Factor
The first Larsen factor asks the Court to consider whether the officers ordered the
suspect to drop his weapon and the suspect’s compliance with police commands. 	511
F.3d at 1260. 	Here, Plaintiff candidly alleges that Undersheriff McIntyre repeatedly
ordered Plaintiff to drop to the ground and Plaintiff repeatedly disobeyed that order. [#32
at ¶¶ 80-83] Thus, the first Larsen factor favors Defendants.
B. 	The Second Larsen Factor
The second Larsen factor asks whether any hostile motions were made with the
weapon towards the officers. 511 F.3d at 1260. According to the Complaint, Plaintiff did
not make any threatening moves toward the officers and, indeed, put his arms in the air
to show that his hands were empty. [#32 at ¶ 83] Thus, as the Moffat County Defendants
concede in the Moffat Motion, the second Larsen factor favors Plaintiff.4 [#33 at 8]
4 The Court notes that “simply because a suspect has not yet fired a weapon does not
mean that he will not do so in the future, particularly when intentionally keeping his gun
with him.” Estate of George v. City of Rifle, 85 F.4th 130, 1318 (10th Cir. 2023) (quoting
Palacios v. Fortuna, 61 F.4th 1248, 1259 (10th Cir. 2023)). And the fact that Plaintiff did
not drop his weapon may diminish, to some extent, the amount that Plaintiff benefits from
the second Larsen factor. Nonetheless, because Plaintiff had raised his hands in the air
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C. 	The Third Larsen Factor
The third Larsen factor looks to the distance separating the officers and the
suspect. 	511 F.3d at 1260. 	The Court concludes that this factor favors Plaintiff.
Admittedly, at the time the deadly force was employed, Plaintiff and the officers were
separated only by the distance between the front of the police vehicle and the driver’s
seat. 	But that short distance was created by Lieutenant Businger accelerating toward
Plaintiff, in his vehicle, as Plaintiff was walking away from the officers. 	Thus, looking
solely at the distance between the Plaintiff and the officers, the Court would find that this
third factor weighs against Defendants. Cf. Pauly, 874 F.3d at 1217 (finding that the third
Larsen factor supported Plaintiff where the officer was fifty feet away and behind a rock
wall).
Nonetheless, the Tenth Circuit has recognized that the third Larsen factor may
need to be modified in a situation where the suspect is armed with a firearm and was
physically close to members of the general public. 	Estate of George v. City of Rifle, 85
F.4th 1300, 1318-19 (10th Cir. 2023). In George, the suspect was armed with a gun but
was running away from the officers. 	Id. at 1318. 	The Tenth Circuit acknowledged that
“there was not a close-range confrontation” between the suspect and the officers, but
“conclude[d] that [it] must modify the physical distance factor to take into account other
considerations relevant to th[e] case” including the fact that the suspect was close to the
general public and had easy access to locations that would have provided him with cover
prior to the use of force, the Court finds that the second Larsen factor supports Plaintiff’s
excessive force claim.
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from the officers. 	Id. at 1318-19. 	Thus, the court in George found that this third factor
weighed in favor of the officers. Id. at 1319.
Here, as in George, Plaintiff appeared to be armed with a firearm. At the time of
the use of force, there did not appear to be any members of the general public around,
though Plaintiff was walking toward a house where individuals could have resided. [#32
at ¶¶ 49-50] 	The exact distance between Plaintiff and the nearby houses at the time of
the use of force is unclear from the Complaint, and thus it is not clear that Plaintiff
presented an immediate threat to the homes’ residents. Ultimately, the Court concludes
that this third Larsen factor weighs in favor of Plaintiff but is cognizant of the fact that
Plaintiff appeared to be armed with a firearm and in somewhat close proximity to homes
that could have been occupied at the time, thereby diminishing the amount that this third
factor supports Plaintiff’s excessive force claim.
D. 	The Fourth Larsen Factor
The fourth Larsen factor looks to the manifest intention of the suspect. 	511 F.3d
at 1260. 	Here, according to the Complaint, Undersheriff McIntyre repeatedly ordered
Plaintiff to drop to the ground and Plaintiff repeatedly disobeyed that order and continued
walking in the direction of the potentially occupied house. [#32 at ¶¶ 80-83] And Plaintiff
had a history of violence that Defendants knew about. 	[Id. at ¶ 57.a; #33-1] 	Moreover,
the circumstances alleged are just the type of “tense, uncertain, and rapidly evolving
situation” in which courts “do not like to second-guess [the officers] using the 20/20
hindsight found in the comfort of a judge’s chambers.” Phillips v. James, 422 F.3d 1075,
1084 (10th Cir. 2005). 	Nonetheless, Plaintiff had not threatened anybody along his
multiple mile walk and, while he did not obey Undersheriff McIntyre’s orders, he did put
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his hands up in the air. [#32 at ¶ 83] Thus, while it is a somewhat close call, the Court
ultimately concludes that this fourth Larsen factor favors Plaintiff.
E. 	Conclusion
After weighing the Larsen factors and considering that at the time the force was
applied Plaintiff had his hands raised in the air, the Court cannot conclude that Plaintiff
posed an immediate and significant threat to the safety of Defendants or anybody else at
the time he was struck by the vehicle. 	Accordingly, the second Graham factor weighs
against a finding of reasonableness.
iii. 	The Third Graham Factor
The third Graham factor asks whether the suspect is actively resisting arrest or
attempting to evade arrest by flight. 	490 U.S. at 396. 	Here, Plaintiff was not actively
resisting arrest. Nor was he fleeing in the traditional sense of the term. But he continued
to walk away from officers in violation of their commands. Though a close call, the Court
finds that this third Graham factor weighs slightly in favor of Defendants. Axtell v. City of
Lakewood, No. 21-cv-00291-RM-MEH, 2022 WL 227241, at *6 (D. Colo. Jan. 26, 2022)
(finding the third Graham factor weighed in favor of Defendants where, after the plaintiff
was searched, he retreated from the officers), report and recommendation adopted, 2023
WL 2553160 (D. Colo. Mar. 17, 2023); Thompson v. Mericle, No. 6:21-CV-00358-RAW,
2024 WL 3878413, at *12 (E.D. Okla. Aug. 20, 2024) (finding the third Graham factor
supported 	officers 	where 	the 	plaintiff 	walked 	away 	from 	the 	officers 	who 	were
commanding him to lie on the ground); cf. Estate of Taylor v. Salt Lake City, 16 F.4th 744,
766 (10th Cir. 2021) (finding a suspect’s “180-degree turn and walk[ing] away from the
officers” sufficient for “a reasonable officer [to] conclude that, for some reason—including
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possibly a nefarious one—[the suspect] was seeking to evade law enforcement”). Thus,
the third Graham factor weighs slightly in favor of Defendants.
iv. 	Conclusion
In sum, the Court finds that the first and third Graham factors support the
reasonableness of Defendants’ actions. The second and most important Graham factor,
however, weighs in Plaintiff’s favor. In the end, the Court notes that, over the course of
approximately one and one half hours, Plaintiff never threatened anybody with the
weapon. He did not stop as ordered by the officers, but he did raise his hands. He was
walking away as opposed to running. 	And though he was walking toward a house, the
Court cannot tell from the Complaint how far away Plaintiff was from the house or whether
the home occupants were in any imminent danger should Plaintiff reach for the rifle, which
to that point he had not. Accordingly, accepting as true the facts set forth in the Complaint,
the Court concludes that the officers were not justified in using deadly force when
Lieutenant Businger struck Plaintiff with the police vehicle.5
b. 	Clearly Established
“The doctrine of qualified immunity protects government officials from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
5 Defendants Luster, Montoya, Hammer, McIntyre, and Mendoza argue that they cannot
be held responsible for Lieutenant Businger’s use of force. 	[##33 at 10; 34 at 10] 	The
Tenth Circuit has made clear that while personal involvement is necessary for Section
1983 liability, “[p]ersonal involvement is not limited solely to situations where a defendant
violates a plaintiff’s rights by physically placing hands on him.” Fogarty v. Gallegos, 523
F.3d 1147, 1162 (10th Cir. 2008). 	“An officer who fails to intercede is liable for the
preventable harm caused by the actions of the other officers where that officer observes
or has reason to know . . . that any constitutional violation has been committed by a law
enforcement official.” 	Vondrak v. City of Las Cruces, 535 F.3d 1198, 1210 (10th Cir.
2008) (quotation omitted). 	However, “[i]n order to be liable for failure to intervene, [an]
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constitutional rights of which a reasonable person would have known.” 	Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (internal quotation omitted). 	Once the defense of
qualified immunity has been raised, “the onus is on the plaintiff to demonstrate ‘(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.’” Quinn v. Young, 780 F.3d 998, 1004
(10th Cir. 2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).
“To 	be 	clearly 	established, 	a 	legal 	principle 	must 	have 	a 	sufficiently 	clear
foundation in then-existing precedent” such that it is “settled law.” District of Columbia v.
Wesby, 138 S. Ct. 577, 589 (2018). 	The Supreme Court has "not yet decided what
precedents—other than [its] own—qualify as controlling authority for purposes of qualified
immunity." 	Id. at 591 n.8. 	The Tenth Circuit, however, has stated that “[o]rdinarily this
standard requires either that there is a Supreme Court or Tenth Circuit decision on point,
or that the ‘clearly established weight of authority from other courts [has] found the law to
be as the plaintiff maintains.’” Patel v. Hall, 849 F.3d 970, 980 (10th Cir. 2017) (quoting
Klen v. City of Loveland, 661 F.3d 498, 511 (10th Cir. 2011)).
The Tenth Circuit has explained the “clearly established” prong of the qualified
immunity analysis as follows:
officer[ ] must have observe[d] or ha[d] reason to know of a constitutional violation and
have had a realistic opportunity to intervene.” Jones v. Norton, 809 F.3d 564, 576 (10th
Cir. 2015) (quotation omitted). “Whether an officer had sufficient time to intercede or was
capable of preventing the harm being caused by another officer is an issue of fact for the
jury unless, considering all the evidence, a reasonable jury could not possibly conclude
otherwise.” 	Vondrak, 535 F.3d at 1210 (quoting Anderson v. Branen, 17 F.3d 552, 557
(2d Cir.1994)). Here, Undersheriff McIntyre developed the plan to run Plaintiff over if he
did not obey the officers’ instructions and Defendants Hammer, Luster, Montoya, and
Mendoza were all present while the plan was discussed. [#32 at ¶¶ 54-55] Based upon
these allegations, a reasonable jury could conclude that any of these officers had the
ability to intercede and change the plan.
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A clearly established right is one that is sufficiently clear that every
reasonable official would have understood that what he is doing violates
that right. 	Although plaintiffs can overcome a qualified-immunity defense
without a favorable case directly on point, existing precedent must have
placed 	the 	statutory 	or 	constitutional 	question 	beyond 	debate. 	The
dispositive question is whether the violative nature of the particular conduct
is clearly established. . . . 	Qualified immunity protects all but the plainly
incompetent or those who knowingly violate the law.
Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir. 2016) (quotations and citations omitted).
The Supreme Court has “repeatedly stressed that courts must not define clearly
established law at a high level of generality, since doing so avoids the crucial question
whether the official acted reasonably in the particular circumstances that he or she faced.”
Wesby, 138 S. Ct. at 590 (quotation omitted). “[T]he ‘specificity’ of the rule is especially
important in the Fourth Amendment context.” Id. (quotation omitted).
At qualified immunity's second step, Graham cautions courts to proceed “from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight,” taking account of “the fact that police officers are often forced to make split-
second judgments—in circumstances that are tense, uncertain, and rapidly evolving.”
490 U.S. at 396-97. And one could argue that the relatively close nature of the Graham
analysis justifies a grant of qualified immunity to the individual Defendants. Wilson v. City
of Lafayette, 510 F. App’x 775, 779 (10th Cir. 2013) (“Looking to the circumstances as a
whole, then, the Graham factors prove indeterminate at best. One might argue that, on
balance, they favor [the officer]. 	One might, perhaps with more difficulty, argue they tip
in the [plaintiff’s] favor. 	But however viewed they do not clearly indicate [the officer’s]
conduct was unlawful.”). But in the end, and without knowing exactly how far Plaintiff was
from the various homes when he was run over, Plaintiff has plausibly alleged that
Lieutenant Businger employed deadly force against Plaintiff while he was simply walking
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away with his hands in the air, not posing a threat to the officers or anyone else. And it
has been clearly established in this Circuit that officers may not use deadly force against
an individual who does not pose an immediate threat to the officers or third parties.
Simpson v. Little, 16 F.4th 1353, 1366 (10th Cir. 2021). As a result, Defendants are not
entitled to qualified immunity on Claim One. Womack v. Rodriguez, No. 2:20-cv-02638-
HLT, 2023 WL 2016986, at *7-8 (D. Kan. Feb. 15, 2023) (finding law clearly established
that officers could not run over fleeing suspect, despite suspicion that suspect was armed,
because there were no bystanders in the area, any structures were some distance away,
and the suspect had not made any threats or threatening gestures).
2. 	Claim Two: Municipal Liability
The 	Court 	next 	considers 	Plaintiff’s 	Section 	1983 	claims 	asserted 	against
Defendants City of Craig and Sheriff Hume in his official capacity as the Sheriff of Moffat
County.6 	[#32 at ¶¶ 144-165] 	“[M]unicipalities and municipal entities . . . are not liable
under 42 U.S.C. § 1983 solely because their employees inflict injury on a plaintiff.” Fofana
v. Jefferson Cnty. Sheriff’s Off., No. 11-cv-00132-BNB, 2011 WL 780965, at *2 (D. Colo.
Feb. 28, 2011) (citing Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 694
(1978); Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993)). Instead, “[t]o hold
a municipality liable under § 1983, a plaintiff must prove (1) the existence of a municipal
policy or custom by which the plaintiff was denied a constitutional right and (2) the policy
or custom was the moving force behind the constitutional deprivation.” Crittenden v. City
6 “Suing individual defendants in their official capacities under § 1983 . . . is essentially
another way of pleading an action against the county or municipality they represent,” and
thus courts apply the same standards of liability to municipalities as to official capacity
claims against municipal officials. Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010)
(citing Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 690 n.55 (1978)).
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of Tahlequah, 786 F. App'x 795, 800 (10th Cir. 2019) (citing Monell, 436 U.S. at 694). A
municipal policy or custom may take the form of:
(1) 	a 	formal 	regulation 	or 	policy 	statement; 	(2) 	an 	informal 	custom
amoun[ting] 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 Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (quotations omitted).
Here, Plaintiff seeks to hold the City of Craig and the County of Moffat liable for the
actions of the individual officers based on their alleged failure to adequately hire,
investigate, train, supervise, or discipline its officers.7 	[#32 at ¶¶ 145-65] 	To state a
Monell claim based on the failure to train or supervise, a plaintiff must sufficiently allege
that the failure “results from deliberate indifference to the injuries that may be caused.’”
Bryson, 627 F.3d at 788. 	However, “[a] municipality's culpability for a deprivation of rights
is at its most tenuous where a claim turns on a failure to train.” 	Connick v. Thompson,
7 Plaintiff argues that Defendants were members of a Special Response Team (“SRT”),
activated by Undersheriff McIntyre, and the SRT must have been operating through the
use of certain policies and procedures. [##37 at 12-13; 38 at 12-13] But the Complaint
merely alleges that Undersheriff McIntyre set up a team of officers to monitor this
particular situation and makes no mention of any policies or procedures beyond the plan
to use a vehicle to seize Plaintiff. 	[See generally #23] 	Plaintiff also argues that
Undersheriff McIntyre ratified the actions and thus municipal liability exists. [##37 at 14;
38 at 14] 	But Plaintiff does not cite any Section 1983 cases in which municipal liability
attached based solely upon an undersheriff’s actions [id.] and, more importantly, the
Complaint clearly alleges municipal liability based solely upon a failure to adequately hire,
investigate, train, supervise, or discipline its officers [#32 at ¶¶ 145-65]. And plaintiff may
not amend the Complaint “by alleging new facts in [his] response to a motion to dismiss.”
In re Qwest Commc'ns Int'l, Inc. Securities Litigation, 396 F. Supp. 2d 1178, 1203 (D.
Colo. 2004).
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563 U.S. 51, 61 (2011); see also Oklahoma City v. Tuttle, 471 U.S. 808, 822-823 (1985)
(plurality opinion) (“[A] ‘policy’ of ‘inadequate training’ ” is “far more nebulous, and a good
deal further removed from the constitutional violation, than was the policy in Monell.”).
“Notice of particular deficiencies in a training program is the crux of a failure-to-train theory
because ‘[w]ithout notice that a course of training is deficient in a particular respect,
decisionmakers can hardly be said to have deliberately chosen a training program that
will cause violations of constitutional rights.’” Estate of Lobato by & through Montoya v.
Correct Care Sols., LLC, No. 15–cv–02718–PAB–STV, 2017 WL 1197295, at *7 (D. Colo.
Mar. 31, 2017) (quoting Connick v. Thompson, 563 U.S. at 62)).
Plaintiff’s allegations concerning the municipal Defendants’ alleged failure to
adequately 	hire, 	investigate, 	train, 	supervise, 	or 	discipline 	its 	officers 	are 	entirely
conclusory. 	Plaintiff alleges elements of a municipal liability theory without alleging any
facts to support those elements. 	[#32 at ¶¶ 145-65] 	As a result, Plaintiff has failed to
plead a municipal liability claim against either Craig or Moffat County. See Sodaro v. City
& Cnty. of Denver, 629 F. Supp. 3d 1064, 1082 (D. Colo. 2022) (dismissing Monell claim
where the plaintiff did “not set forth any facts concerning how the Officers were trained,
who they were trained by, or why their training was deficient”); Sexton v. City of Colorado
Springs, 530 F. Supp. 3d 1044, 1073 (D. Colo. 2021) (dismissing Monell claim where the
plaintiff 	did 	not 	allege 	any 	facts 	regarding 	supervisory 	deficiencies 	in 	the 	police
department, how the defendant’s supervision was inadequate, or how this inadequate
supervision caused the plaintiff’s injury); Bark v. Chacon, No. 10-cv-01570-WYD-MJW,
2011 WL 1884691, at *3 (D. Colo. May 18, 2011) (dismissing municipal liability claim
where the plaintiff had “generally allege[d]” that the individual defendants were not
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properly trained but had not “allege[d] specific deficiencies in training and supervision, or
explain[ed] how the incident described in the Amended Complaint could have been
avoided with different or better training and supervision”); see also Twombly, 550 U.S. at
555 (“[A] formulaic recitation of the elements of a cause of action will not do.”).
Accordingly, the Motions are GRANTED to the extent they seek to dismiss Claim Two
and Claim Two is DISMISSED WITHOUT PREJUDICE.8 See Reynoldson v. Shillinger,
907 F.2d 124, 127 (10th Cir. 1990) (holding prejudice should not attach to dismissal when
a plaintiff has made allegations “which, upon further investigation and development, could
raise substantial issues”).
B. 	State Law Claims
Finally, Plaintiff asserts claims against Defendants for excessive force under the
Colorado Constitution and Colo. Rev. Stat. §13-21-131 (“Section 13-21-131”). 	[#32 at
¶¶ 166-186] The Colorado Constitution provides that “[t]he people shall be secure in their
persons, papers, homes and effects, from unreasonable searches and seizures . . . .”
Colo. Const. art. II, § 7. 	Colorado’s Enhanced Law Enforcement Integrity Act (the
“ELEIA”) created a cause of action for individuals to seek redress for police conduct that
violates constitutional rights under article II of the Colorado Constitution:
A peace officer, as defined in section 24-31-901(3) who, under color of law,
subjects or causes to be subjected, including failing to intervene, any other
person to the deprivation of any individual rights that create binding
obligations on government actors secured by the bill of rights, article II of
the state constitution, is liable to the injured party for legal or equitable relief
or any other appropriate relief.
8 It appears that Claim Two is the only claim brought against Sheriff Hume and the City
of Craig and, as a result, these two Defendants are dismissed from this action.
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Colo. Rev. Stat. § 13-21-131(1). The ELEIA expressly eliminated statutory immunities,
qualified immunity, and the Colorado Governmental Immunity Act (“CGIA”):
(2)(a) Statutory immunities and statutory limitations on liability, damages, or
attorney fees do not apply to claims brought pursuant to this section. The
“Colorado Governmental Immunity Act”, article 10 of title 24, does not apply
to claims brought pursuant to this section.
(b) Qualified immunity is not a defense to liability pursuant to this section.
Colo. Rev. Stat. § 13-21-131(2). The ELEIA preserved, however, a “good faith and
reasonable belief” defense for indemnification purposes. 	Colo. Rev. Stat. § 13-21-
131(4)(a).
Because the Fourth Amendment of the United States Constitution is “almost
identical” to article II, section 7 of the Colorado Constitution, Colorado courts generally
look to cases analyzing Section 1983 excessive force claims as persuasive authority in
resolving claims brought under Section 13-21-13. Woodall v. Godfrey, 553 P.3d 249, 256
(Colo. App. 2024); Casper v. Vallario, No. 23CA0840, 2024 WL 3978459, at *6 (Colo.
App. June 27, 2024), reh'g denied (Aug. 15, 2024). 	“In other words, if a plaintiff's
allegations could state a claim for relief under § 1983, that suggests the claim could be
supported under section 13-21-131.” Casper, 2024 WL 3978459, at *6; see also Woodall,
553 P.3d at 256 (holding that when determining whether the force used to effect a seizure
is reasonable under article II, section 7 of the Colorado Constitution, courts should apply
the objective reasonableness standard articulated in Graham).
Because 	of 	this 	coextensive 	nature 	of 	the 	Colorado 	and 	United 	States
Constitutions, the Court finds that Plaintiff has plausibly alleged a state constitutional
violation. 	Accordingly, for the same reasons articulated above, the Court DENIES the
Motions to the extent that they seek dismissal of Claim Three.
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IV. 	CONCLUSION
For the foregoing reasons, the Motions [##33, 34] are GRANTED IN PART and
DENIED IN PART. Specifically, the Motions are GRANTED to the extent that they seek
dismissal of Claim Two and Claim Two is DISMISSED WITHOUT PREJUDICE.9 	The
Motions are DENIED to the extent that they seek to dismiss Claims One and Three. 	A
status conference is set for May 1, 2025, at 3:00 p.m.
DATED: April 7, 2025 	BY THE COURT:
s/Scott T. Varholak
Chief United States Magistrate Judge
9 Because it appears that Claim Two is the only claim brought against Sheriff Hume and
the City of Craig, these two Defendants are dismissed from this action.
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