MATHEW CARABAJAL, a/k/a Mathew K. Carabajal Jacoby;
M.C., a minor by and through his parents and next friends, Mathew Carabajal and Ariana Martinez, Plaintiffs - Appellants,
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.
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.
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
KELLY, MATHESON, and McHUGH, Circuit Judges.
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.
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.
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).
Excessive Force Claims and Qualified Immunity
first turn to Mr. Carabajal's challenges with respect to
the grant of qualified immunity on his excessive force
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.").
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).
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. 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.
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 ...