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Carabajal v. M.C.

United States Court of Appeals, Tenth Circuit

February 6, 2017

MATHEW CARABAJAL, a/k/a Mathew K. Carabajal Jacoby;
v.
M.C., a minor by and through his parents and next friends, Mathew Carabajal and Ariana Martinez, Plaintiffs - Appellants,
v.
CITY OF CHEYENNE, WYOMING; OFFICERS JOSH THORNTON; MICHAEL SUTTON, in their individual capacities, Defendants-Appellees, and CHEYENNE POLICE DEPARTMENT; OFFICERS PAT JOHNSTON; MATTHEW COLSON, Defendants.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING (D.C. No. 2:14-CV-00188-SWS)

          Carolyn M. Nichols (and Alicia C. Lopez of Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, L.L.P, Albuquerque, New Mexico; Richard Wolf, Cheyenne, Wyoming, on the brief), for Plaintiffs - Appellants.

          William S. Helfand (and Norman Ray Giles of Chamberlain, Hrdlicka, White, Williams & Aughtry, P.C., Houston, Texas; J. Mark Stewart of Davis & Cannon, L.L.P., Cheyenne, Wyoming, on the brief), for Defendant - Appellee City of Cheyenne, Wyoming.

          Lance E. Shurtleff, (Kenneth H. Lyman and Jacob D. Massee of Hall & Evans, L.L.C., on the brief), Denver, Colorado, for Defendants - Appellees Officers Joshua Thornton and Michael Sutton.

          Before KELLY, MATHESON, and McHUGH, Circuit Judges.

          KELLY, Circuit Judge

         Plaintiffs-Appellants Mathew Carabajal and his son, V.M.C., through Mathew and V.M.C.'s mother, Arianna Martinez, appeal from the district court's judgment in favor of Defendants-Appellees Officers Joshua Thornton and Michael Sutton, and Defendant-Appellee City of Cheyenne ("the City"). On appeal, Plaintiffs challenge the district court's grant of a motion to dismiss Plaintiffs' Fourth Amendment claim of unlawful seizure of V.M.C. by Officer Thornton when he shot into the vehicle that V.M.C. occupied. Plaintiffs also challenge the grant of summary judgment in favor of the officers based upon qualified immunity as to Mr. Carabajal's excessive force claims. Finally, Plaintiffs challenge the district court's initial dismissal of, and later grant of summary judgment in favor of the City on, Plaintiffs' claims of negligent hiring of Officer Thornton. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

         Background

         This appeal arises out of an officer-involved shooting in the early morning hours of September 19, 2011. At approximately 3:50 a.m., Mr. Carabajal was driving a vehicle containing three other individuals, including his infant son V.M.C., when he noticed that he was being followed by a police vehicle with its lights and siren activated. Mr. Carabajal drove for several blocks. Other officers were notified and reported to the scene. Although the facts are discussed in greater detail below as pertinent, ultimately Mr. Carabajal pulled over, the officers exited their police cars, and Officer Thornton stepped in front of Mr. Carabajal's vehicle. Soon thereafter, Mr. Carabajal's vehicle began to move forward. Officer Thornton then fired two rounds from his shotgun at Mr. Carabajal, severely injuring him. At that time, V.M.C. was still in the vehicle, secured in a car seat behind the front passenger. Officers Thornton and Sutton subsequently removed Mr. Carabajal from the vehicle.

         Plaintiffs sued the City, its police department, and four officers, including Officers Thornton and Sutton, in their individual capacities, asserting several claims. On a motion by the City, the district court dismissed without prejudice V.M.C.'s claim that he was unlawfully seized when Officer Thornton shot into the vehicle in which he was an occupant. It later granted summary judgment on other claims, finding that the officers were entitled to qualified immunity on Mr. Carabajal's excessive force claims, that the complaint did not plead a negligence claim based on the alleged negligent hiring of Officer Thornton, and, even if it did, that the City was entitled to judgment as a matter of law on the negligence claim due to a lack of evidentiary support. Carabajal v. City of Cheyenne, No. 2:14-CV-0188-SWS, 2015 WL 9906393 (D. Wyo. Dec. 3, 2015). Though V.M.C.'s unlawful seizure claim was dismissed without prejudice, for practical purposes we think that the district court intended to bar the entire remaining action when it granted judgment; hence, we have a final judgment. Moya v. Schollenbarger, 465 F.3d 444, 448-51 (10th Cir. 2006).

         Discussion

         A. Excessive Force Claims and Qualified Immunity

         We first turn to Mr. Carabajal's challenges with respect to the grant of qualified immunity on his excessive force claims.

         1. Relevant Facts

         To assess the constitutionality of the officers' actions, we must first determine the relevant facts. Scott v. Harris, 550 U.S. 372, 378 (2007). Although there are some differences in the parties' accounts of what occurred, we must view the facts and draw reasonable inferences in the light most favorable to Mr. Carabajal, the party opposing summary judgment. Id. However, we cannot ignore clear, contrary video evidence in the record depicting the events as they occurred. See id. at 380 ("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.").

         Here, the events were captured on video, and, as in Scott, there are no allegations that the footage has been doctored or altered. Accordingly, we rely on this evidence here, though we are mindful that the video evidence did not capture all that occurred. While relying on this video footage, we continue to view the evidence in the light most favorable to Mr. Carabajal. See Thomas v. Durastanti, 607 F.3d 655, 659 (10th Cir. 2010).

         Viewed in that light, Mr. Carabajal was driving his partner, their infant son V.M.C., and Mr. Carabajal's cousin. His partner sat next to him in the passenger seat, while his cousin sat in the back with V.M.C., who was secured in a car seat. At some point, they noticed a police car following them. Officer Johnston, who was driving the police car, activated his emergency lights and sirens and Mr. Carabajal did not stop.[1] During this time, Mr. Carabajal obeyed the speed limit and used his turn signals. 1 Aplt. App. 229 (Officer Johnston's dash cam at 1:12-2:29). Officer Johnston reported a car "running" and noted that there were three occupants in the car. Id. (1:15-2:38). After driving for approximately six blocks and turning several times, Mr. Carabajal pulled over and stopped the vehicle. Id. (1:15-16, 2:25-38). Officer Johnston pulled over to the rear of the vehicle and instructed Mr. Carabajal and the other occupants not to run and to keep their hands out of the window. Id. (2:37-53).

         Soon thereafter, Officers Thornton and Colson arrived at the scene, and parked their vehicles in the street facing Mr. Carabajal's vehicle. Id. (3:17). It bears noting that Officers Thornton and Colson were not involved in the initial pursuit of Mr. Carabajal's vehicle. Both officers exited their respective vehicles. After Mr. Carabajal's cousin opened the back passenger door with his hands out, Officer Thornton moved in front of Mr. Carabajal's vehicle. Id. 248 (Officer Colson's dash cam at 3:23-37). Mr. Carabajal then opened the door and momentarily put his foot outside of ...


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