Pltf's Opposition To Casey Davies' Motion To Dismiss

Case 2:19-cv-00341-HCN-DBP Document 152 Filed 03/16/22 PageID.
2091 Page 1 of 52
Sam Meziani (9821)

GOEBEL ANDERSON PC
405 South Main Street, Suite 200
Salt Lake City, UT 84111
Telephone: 801.441.9393
smeziani@gapclaw.com
Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
AARON JAMES and TIFFANY JAMES,

Heirs and Personal Representatives of the Estate
of Zane James; PLAINTIFFS’ OPPOSITION TO
DEFENDANT CASEY DAVIES’
Plaintiffs, MOTION TO DISMISS
vs.
CASEY DAVIES, and CITY OF

COTTONWOOD HEIGHTS, Case No. 2:19-cv-00341
Defendants. Judge Howard C. Nielson, Jr.

Magistrate Judge Dustin B. Pead
TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 2
RESPONSE TO DAVIES’ “SUMMARY” OF FACTS ................................................................ 5
PROCEDURAL STANDARD ..................................................................................................... 15
LEGAL STANDARD ................................................................................................................... 15
Use of Deadly Force ....................................................................................................... 15
Clearly Established Law................................................................................................. 17
ARGUMENT ................................................................................................................................ 20
I. Davies Used Excessive Force When He Hit Zane With His Car at High Speed ............... 20
Case 2:19-cv-00341-HCN-DBP Document 152 Filed 03/16/22 PageID.2092 Page 2 of 52
A. Fourth Amendment Violation ........................................................................................ 20

1. Zane Did Not Pose an Imminent Threat ..................................................................... 21
B. Violation Was Well-Established .................................................................................... 24
II. Davies Used Excessive Force When He Shot Zane in the Back........................................ 30
A. Fourth Amendment Violation ........................................................................................ 31
B. Zane Did Not Pose an Immediate Threat ....................................................................... 31
1. Davies Did Not Order Zane to Drop a Weapon ......................................................... 32
2. Zane Did Not Make Any Hostile Motions ................................................................. 34
3. There Was Sufficient Distance and Cover ................................................................. 34
4. Zane’s Manifest Intentions Were Not Hostile ............................................................ 35
C. Severity of the Crime ..................................................................................................... 35
D. Actively Resisting Arrest or Attempting to Flee............................................................ 36
E. Davies’ Violation Was Clearly-Established ................................................................... 38
III. Davies Has Submitted False Testimony ............................................................................ 47
IV. The Doctrine of Qualified Immunity is Not Supported by the Text or History of Section
1983 .................................................................................................................................... 48
V. Claims Under the Utah Constitution .................................................................................. 50
CONCLUSION ............................................................................................................................. 51
INTRODUCTION
On May 29, 2018, Casey Davies shot Zane James in the back.
Davies was the aggressor; Zane was the victim. Zane did not pose an immediate threat to
Davies at the precise moment Davies decided to shoot. Zane did not brandish a gun or make any
threating movements. Zane never touched a gun. Davies never saw a gun. Zane was reeling
from injuries; injuries sustained after Davies crashed into him at approximately 48 miles per
hour. Davies’ own statement shows he made the decision to use deadly force almost
immediately after the pursuit began, before he crashed into Zane and before shooting. Unlike
2
every case Davies cites in his brief, Davies’ decision to kill Zane was intentional and
premeditated.
Now, after agreeing to a discovery scheduling order and after seeing the facts obtained in
discovery rapidly amassing against him, Davies wants to close the curtain on further inquiry, and
he wants the case dismissed. The Salt Lake County District Attorney’s Office has recently re-
opened its investigation into Zane’s death— the first time in the District Attorney’s 12-year
tenure he has re-opened an officer use of force investigation—after obtaining previously
withheld evidence. Now the District Attorney knows about the intentional car crash from a non-
Garrity source. This fact changes everything because it also illuminates Davies’ intent in firing
shots. This fact would have remained forever hidden absent discovery efforts in this case.
Davies sensibly does not want Plaintiffs to continue to develop facts to provide to the District
Attorney.
Davies’ motion suffers from three fundamental flaws:
First and foremost, Davies refuses to accept Plaintiffs’ allegations as true as he must do at
this stage. Instead, Davies repeatedly argues his version of the facts, which is improper on
summary judgment and certainly improper now. 1 Davies’ refusal to acknowledge the factual
allegations in the complaint infects the brief as a whole and shows the request to dismiss at this
early stage is not well taken.
1
Tolan v. Cotton, 572 U.S. 650, 656 (2014) (“courts may not resolve genuine issues of material
fact in favor of the party seeking summary judgment.” In addition, “Our qualified immunity
cases illustrate the importance of drawing inferences in favor of the nonmovant….’”) See also
Cole v. Carson, 935 F.3d 444, 455 (5th Cir. 2019) (“Rather than engage on the facts as we must
take them at the summary judgment stage, the officers repeatedly argue from a different set of
facts.” The court held it lacked jurisdiction to consider the officers’ “alternative set of facts”).
3
Second, Davies refuses to correctly apply the Tenth Circuit test to determine whether an
officer faced an immediate threat requiring the use of deadly force. Whether the officer faced an
immediate threat at the precise moment threat was used is the “most important” of the Graham
factors. To aid in the analysis of this critical factor, the Tenth Circuit has outlined four (4) sub-
factors: the Larsen factors. Although Davies mentions the Larsen factors in passing, he makes
only a cursory glance at the first factor, and he ignores factors two through four. Davies’ failure
to engage in the hard work of sifting the facts through the Circuit’s legal test shows his analysis
is incomplete and defective. As this memorandum will show, when the Larsen factors are
applied to the facts, the use of force was unreasonable.
Third, Davies does not acknowledge let alone apply the Tenth Circuit’s body of case law
governing shots fired in connection with vehicle pursuits. In Cordova, Reavis, and Huff, the
Tenth Circuit has repeatedly stated the clearly established law, as of 2009, that officers may not
use deadly force to shoot fleeing suspects where the suspects pose no immediate threat of harm.
Cordova, Reavis, and Huff, are directly on point. The Tenth Circuit has given Cordova a high
priority, citing it consistently as stating the clearly established law, 2 yet the case and each Tenth
Circuit case that applies Cordova in the context of shootings is missing from Davies’ analysis.
Ultimately, the Amended Complaint (“Complaint”) contains more than sufficient well-
founded factual allegations to show Davies violated Zane James’ clearly established rights under
the federal constitution. The court should therefore deny the motion.
2
See, e.g., Simpson v. Little, 16 F. 4th 1353, 1366 (10th Cir. 2021) (“Despite these minor factual
differences, Cordova clearly established the law here”).
4
RESPONSE TO DAVIES’ “SUMMARY” OF FACTS

Defendant’s motion does not accept all well-pleaded facts, and their inferences, as true.
Instead, Defendant argues his interpretation of the facts.
Defendant, for example, suggests there is a factual dispute because Davies states, in a
self-serving statement after the shooting, that Zane was reaching for his waistband whereas the
testimony of eyewitness Heather Dodd shows there was no reaching and no threatening
movement. Defendant’s tactic is improper and would be obviously ineffective on summary
judgment, much less on a motion to dismiss where all Plaintiffs’ factual allegations are accepted
as true.
Defendant relies on the audio recording of the radio dispatch, but nothing in the audio
recording is inconsistent with the allegations in the complaint.
More perniciously, Defendant relies on the post-shooting body camera footage attached
as Exhibit 2 to the complaint and suggests that the body camera evidence conflicts with the
allegations. The obvious problem with this tactic is the body camera submitted with the
complaint contains footage of events after the shooting. Thus, it does not provide any evidence
to conflict with Plaintiffs’ allegations of what happened before and during the shooting.
Although the Complaint contains hundreds of factual allegations concerning a
multifaceted fact scenario, Defendant has chosen to ignore the morass of complex facts, and
instead, presents only 15 numbered paragraphs. Defendant’s decision to ignore the majority of
the factual allegations shows Defendant has not seriously grappled with the factual allegations
and inferences supporting the claims, and instead presents a simplistic and sometimes inaccurate
5
strawman version of Plaintiffs’ complaint. The court, however, must accept the allegations as
true and “slosh” its “way through the fact-bound morass of reasonableness.” 3
Plaintiff responds to the numbered paragraphs in Defendant’s motion as follows:
1. Paragraph 1: The facts as stated in Paragraph 1 are not inconsistent with
Plaintiffs’ allegations.
2. Paragraph 2: Davies’ slander of Zane as an “opioid addict[]” is not a complete or
accurate assessment of Paragraph 12. Paragraph 12 of the Complaint states Cottonwood Heights
“knew Zane James as a non-violent young man from a strong family that was struggling with
opioid addiction.” This allegation is important because it shows officers knew Zane had
committed drug related crimes but was non-violent, and had never discharged a firearm and had
never caused physical harm to any person. Paragraph 12 alleged, and discovery has now
proven, 4 that Davies knew who Zane was when he decided to run him over and shoot him dead.
The identity of a suspect is of critical importance to a reasonable officer in deciding whether to
use deadly force. Although Cottonwood Heights policy 5 required him to identify the identity of
the suspect if known, Davies yet again violated policy and did not call out Zane’s identity on the
radio, even though Plaintiffs maintain Davies saw Zane’s face during the pursuit. With the
knowledge of Zane’s identity, officers could have terminated the chase, obtained a warrant for
fleeing and arrested Zane at his known address at a time of their choosing.
3
Cordova v. Aragon, 569 F.3d 1183, 1188 (10th Cir. 2009)
4
The facts and circumstances of Davies’ knowledge of Zane are set forth in the proposed Second
Amended Complaint.
5
See Proposed Amended Complaint.
6
Plaintiffs’ allegations.
Plaintiffs’ allegations. Davies omits the fact there was no report of shots fired, no report of harm
to any person, and no report of any break-in to any building. 6
5. Paragraph 6 : Davies acknowledges he joined the chase 7 but he then ignores
virtually all of Plaintiffs’ allegations about what happened during the chase, including:
- Zane’s motorcycle was capable only of low speeds- “It was going maybe 30, 40 miles
an hour top speed, down the hills, what I remember.” 8
- Davies pulled out his gun when he crossed Fort Union Boulevard. 9
- GPS data show Davies crossed Fort Union only 60 seconds into the pursuit. 10
- Because he removed his gun within 60 seconds of joining the pursuit, and because he
stated “I-I-I mean, deadly force is deadly force no matter which type you are using.
So if I figured I was justified in shooting him through the window for the same
thing I’m justified in running him over”, Davies was contemplating using deadly
force early in the pursuit.
- Davies asked for confirmation of an armed robbery because he wrongly believed he

was allowed to use deadly force against a fleeing felon, qua a fleeing felon.
- There was “no traffic” and “nobody on the street.”
- A reasonable officer would have known there was no threat to motorists at the early
hour from a fleeing lightweight mini-motorcycle.
- Zane did not make any aggressive movements towards Davies. Although Davies
claimed he reported Zane reached into his pocket over the radio, the actual radio
6
(Compl., ¶¶16-18)
7
(Compl., ¶22)
8
(Compl., ¶26)
9
(Compl., ¶27)
10
(Compl., ¶31)
7
transmission shows Davies’ statement is false. 11 Davies never reported any such
action by Zane.
- Davies told his employer: “So I made the decision I’m going to run him over.” 12
- “So I floored it, hit him as we- as he was going over that second speed bump, or that
third, right in front of where we, uh, my car ended.”
6. Paragraph 7: Davies is correct sirens were on.
7. Paragraph 8: The complaint does not allege Zane turned northbound on 2300
East. The facts show Davies began the pursuit on 2300 East, where the Cottonwood Heights
police department is located.
8. Paragraph 9: Davies is correct sirens were on and Zane continued to flee.
9. Paragraph 10: Davies is correct he asked for confirmation Zane was armed.
Plaintiffs maintain he did this because he erroneously believed he was allowed to use deadly
force against a fleeing felon, qua a fleeing felon. Davies’ actions during the pursuit are entirely
consistent with this erroneous belief.
10. Paragraph 11: Davies is correct Zane turned on 6675 south. Davies states May
29, 2018 was a school day, hoping to create the inference in his favor that there was some
general or theoretical risk to the public. The Tenth Circuit, however, in evaluating risk to the
general public in a vehicle pursuit, has held: “The threat must be more than a mere possibility.” 13
And, the statement Davies relies upon “does not mean that any risk of physical harm to others,
11
(Compl., ¶192-195, Exhibit 1 to Complaint).
12
(Compl., ¶56)
13
Cordova, 569 F.3d at 1190.
8
no matter how slight, would justify any application of force, no matter how certain to cause
death.” 14
11. Paragraph 12: Davies’ statement “his car made contact with Zane’s motorcycle”
is not an honest statement by Davies. His car did not passively “make contact.” Davies
intentionally tried to run Zane over— “So I made the decision I’m going to run him over”— and
he “floored it” to 48 miles per hour in doing so. Davies is trying to evade the facts regarding his
specific actions and intent.
12. Paragraph 13: Paragraph 13 does not accurately acknowledge Plaintiffs’
allegations of what happened after the crash. Davies would summarize a significant part of the
Complaint as simply “Despite crashing, Zane did not stop.” That description is an attempt to
argue Davies’ interpretation of the facts instead of dealing with the facts head-on. There is much
more to the Complaint than “Zane did not stop.”
The Complaint alleges that after being hit by a vehicle at approximately 48 miles per
hour, Zane was injured, in pain, disoriented, and “hobbled to the nearest lawn.” 15 The
Complaint alleges:
- “After the car crash, Zane was no longer fleeing from Davies.”
- “Zane was visibly injured and appeared injured to any reasonable officer.”
- “Although he hit him with a car, Davies did not take the time to consider that Zane
was injured and no longer planning to escape.”
- An eyewitness described Zane as “limping or hobbling” to the lawn.
- Zane’s back was to Davies.
14
Id.
15
Compl., ¶¶68-82
9
- Zane did not make any verbal threats to Davies.
- Zane did not make any aggressive physical moves towards Davies.
- Zane did not point anything at Davies.
- Zane did not make any moves as if he was reaching into his pockets or anything
similar.
- Zane’s hands were not in his pockets.
- Zane did not make any hostile motions towards Davies.
- Zane was on the lawn and moving away from Davies.
- Zane was far enough from Davies that Davies, combined with the cover provided by
his police car, had no objective reason to believe Zane could threaten him.
- Davies did not order Zane to show his hands.
- Davies never saw a gun. According to Davies’ own statement, Zane was not holding
any object and did not point any object at Davies.
13. Paragraph 14: Paragraph 14 is entirely improper at this stage. Davies is
arguing the facts in his favor which he may not do here. Davies attempts to connect the location
of Zane’s hands with the timing of Davies’ shots. Davies claims “As Zane reached” Davies
fired, but the Complaint expressly alleges Zane did not reach. That Zane did not reach is
confirmed by the testimony of at least one eyewitness, Heather Dodd, who has signed a sworn
declaration in the case, and whose testimony is recounted in the Complaint. 16 Davies’ obstinate
refusal to deal with the facts alleged shows his motion is not well taken.
Because Davies improperly seeks to advance his version of the story at this stage,
Plaintiffs must inform the court there is much more to the story than the false narrative Davies
16
Compl., ¶¶ 84-101.
10
advances. If Plaintiffs are allowed to complete discovery, the facts will confirm Davies’ dual use
of deadly force was unreasonable. By way of proffer, Plaintiffs have obtained the preliminary
expert report of a pathologist, Dr. Todd Grey, the former Chief Medical Examiner for the State
of Utah. Dr. Grey is eminently qualified by education and experience. He spent much of his 28-
year career as Medical Examiner testifying for the State of Utah in death cases. Dr. Grey will
testify Zane’s body position at the time he was shot is perfectly consistent with Dodd’s
eyewitness testimony. The scientific data show, among other things, Zane was bent over at the
waist, below Officer Davies’ firearm, in a submissive injured position. Dr. Grey’s testimony
supports Plaintiffs’ allegations in all respects. If Plaintiffs are allowed to complete discovery,
they will prove with scientific evidence and eyewitness testimony Zane did not make any
threatening movements towards Davies.
In addition, by way of further proffer, Plaintiffs have obtained the preliminary expert
report of Seth W. Stoughton, the nation’s preeminent police use of use force expert. Mr.
Stoughton is a former police officer. He holds a J.D. from the University of Virginia and is a
professor at the University of South Carolina Law School. His book, Evaluating Police Uses of
Force, 17 is a comprehensive assessment of the law, regulations, and professional standards
governing police officers in the United States. Mr. Stoughton has testified in courts throughout
the United States opining force was, and was not, justified. Mr. Stoughton testified on behalf of
the prosecution in State of Minnesota v. Derek Chauvin. Mr. Stoughton’s preliminary opinions,
based upon the evidence supporting the complaint including materials from the Salt Lake City
17
Seth W. Stoughton, Jeffrey J. Noble, Geoffrey Alpert, Evaluating Police Uses of Force, New
York University Press, New York, 2020.
11
investigation, eyewitness testimony of Heather Dodd and Davies’ own statements, are that
Davies acted unreasonably and contrary to generally accepted police practices.
Plaintiffs ask the court to decline Davies’ invitation to decide the motion to dismiss based
upon his erroneous interpretation of the facts. Plaintiffs ask the court to let them finish discovery
and present their entire case to the court at the appropriate stage.
14. Paragraph 15: Defendant quotes Davies’ self-serving statement he saw Zane
“reaching with his left hand in that front area.” There are numerous and significant problems
with Davies’ argument at this stage of the proceeding:
First, Davies’ argument is inconsistent with the allegations. Plaintiffs allege Zane did not
reach, did not put his hands in his pockets, and did not make any threatening movements towards
Davies. At this stage, the court must accept Plaintiff’s well-plead factual allegations as true, and
must reject Davies’ characterization of the facts.
Second, the video attached as Exhibit 2 contains Davies’ self-serving statement after the
shooting, it is not evidence of what happened before and during the shooting. 18 Thus, the video
does not conflict with any of Plaintiffs’ allegations of Davies’ conduct before and during the
shooting. Despite Davies’ attempt, the post-shooting video does not fit within the rule allowing
the court to consider conflicting documents and video evidence referenced in a complaint. 19
18
Davies deliberately violated Utah law by failing to wear and operate his body worn camera
when he pursued Zane. Davies was given a verbal reprimand in 2017 for failing to operate his
body camera before using force.
19
The post-shooting video is nothing like the pursuit video in Scott v. Harris, 550 U.S. 372
(2007)
12
Third, the court may not accept Davies’ self-serving statement on summary judgment,
much less at this stage. 20
Fourth, to the extent Defendant alleges there is a conflict between Davies’ post-shooting
and self-serving account and the eyewitness testimony of Heather Dodd, there is a genuine issue
of material fact that would preclude summary judgment. It is improper for Defendant to argue
his interpretation of the facts at this stage. 21 At this stage, the testimony of Heather Dodd set
forth in the Complaint, accepted as true with all reasonable inferences, is more than sufficient to
show Davies fired without an imminent threat.
Fifth, at the summary judgment stage, Davies’ intentional decision not to operate his
body worn camera in violation of Utah law and department policy gives rise to a spoliation
adverse inference. Plaintiffs will fully brief issue via a separate motion at the appropriate time.
Sixth, Davies’ statement is hearsay. The statement is inadmissible by Davies at the
summary judgment stage. 22
Seventh, Davies was alone with Zane for some time before officers with body cameras
arrived. This is a critical point that cannot be overlooked. Davies had ample time to do a quick
pat down, a pat down that would easily have revealed the presence of the BB gun. Notice how
when the camera arrives Davies asks the officer to confirm the camera is recording. “Somebody
20
See Pauly v. White, 874 F.3d 1197, 1218 (10th Cir. 2017) (“The court may not simply accept
what may be a self-serving account by the police officer. Rather, it must also look at the
circumstantial evidence that, if believed, would tend to discredit the police officer’s story, and
consider whether this evidence could convince a rational factfinder that the officer acted
unreasonably.”) (cleaned up)
21
See, e.g., Tolan, 572 U.S. at 656.
22
Federal R. Evid. 801(c). Davies is trying to offer his own out of court statement for the truth
of the matter.
13
got the camera activated?” 23 Then with the camera rolling, the officers “discover” the BB gun
that Davies had plenty of time to discover by a brief pat down.
Davies has asserted his right to remain silent under the Fifth Amendment and refuses to
appear for a deposition to answer questions about his conduct. Davies’ attempt to use his post-
shooting, self-serving, and hearsay video statement where his deliberate decisions to not to wear
a body camera ensured there is no footage of the shooting, where he has lied to the court about
the body camera issue, and where he refuses to appear for a deposition, is not well taken.
Eighth, according to the camera footage, the BB gun is not located in the waistband 24
as argued by Davies. The BB gun is located deep inside the jacket pocket. 25 Moreover, the
video shows the BB gun was not easily accessible; officers could not easily access the BB gun
from the closed pocket, so they needed to rip the pocket open. 26 This is a critical point because
the complaint alleges Zane did not put his hands in his pockets:
• “Zane’s hands were not in his pockets.” 27
• Zane “did not make any moves as if he was reaching into his pockets or
anything similar.” 28
***
Although the Supreme Court requires the court to “slosh” through the entire morass of
facts connected to the use of force, and although the Complaint contains a lengthy list of highly
specific factual allegations, Davies’ summary comes nowhere near to acknowledging the real
23
Exhibit 2, :55 to :59.
24
(Supp. Memo., p. 14)
25
See Ex. 2.
26
Ex. 2 at 1:14-:22
27
(Compl., ¶99)
28
(Compl., ¶98)
14
allegations in the complaint, as Defendant is required to do at this stage. Plaintiffs ask the court
to carefully examine the allegations in the Complaint and not blindly accept Davies’ inaccurate
summary and characterization of the allegations.
PROCEDURAL STANDARD
In reviewing a complaint on a Rule 12(b)(6) motion to dismiss, the court accepts all well-
plead facts pleaded by the nonmoving party as true and makes all reasonable inferences from the
pleadings in favor of the nonmoving party. 29 “Although qualified immunity defenses are
typically resolved at the summary judgment stage, district courts may grant motions to dismiss
on the basis of qualified immunity. Asserting a qualified immunity defense via a Rule 12(b)(6)
motion subjects the defendant to a more challenging standard of review than would apply on
summary judgment. In reviewing a Rule 12(b)(6) motion in the context of qualified immunity a
district court should not dismiss a complaint for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of the plaintiff’s claim which would
entitle the plaintiff to relief.” 30
LEGAL STANDARD
Use of Deadly Force
In Graham v. Connor, the Supreme Court held that because the Fourth Amendment
prohibits unreasonable seizures, the ultimate question is whether the officer’s actions were
“objectively reasonable.” 31 This analysis requires “a careful balancing of the nature and quality
29
Wasatch Equality v. Alta Ski Lifts, 820 F.3d 381, 386 (10th Cir 2016). Defendant’s motion is
procedurally improper. Defendant has answered the Complaint. “A motion asserting any
[12(b)] defenses must be made before pleading….” Fed. R. Civ. P. 12(b).
30
Blackmore v. Carlson, 2021 WL 5638497, *2 (D. Utah, Nuffer, J.) (cleaned up)
31
490 U.S. 386, 397 (1989)
15
of the intrusion on the individual’s…interests against the countervailing governmental interests
at stake.” Balancing requires “careful attention to the facts and circumstances of each case.” 32
Thus, district courts evaluating force must engage in a “totality of the circumstances
analysis” and evaluate the “facts and circumstances of each particular case.” 33 Graham set forth
three non-exclusive factors to assist in the ultimate determination of whether the use of force was
objectively reasonable. Courts 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. However, the second factor is
“undoubtedly the most important.” 34
A police officer may not use deadly force unless there is an immediate threat of death or
bodily harm to the officer or the public at the “precise moment” the officer used force. 35 The
risk a felon will flee, by itself, does not justify the use of deadly force. 36 The Tenth Circuit has
developed additional factors to aid in the reasonableness analysis. The Tenth Circuit considers
(1) whether the officers ordered the suspect to drop his weapon; (2) whether any hostile motions
were made with the weapon towards the officers; (3) the distance separating the officers; and (4)
the manifest intentions of the subject. 37
32
Id. at 396.
33
Id.
34
Estate of Coale v. Frost, 967 F.3d 978, 985 (10th Cir. 2020)
35
Graham v. Connor, 490 U.S. 386, 396 (1989); Estate of Coale, 967 F.3d at 985.
36
Estate of Coale, 967 F.3d at 985 (10th Cir. 2020) (citing Tennessee v. Garner, 471 U.S. at 11).
37
Id.
16
Clearly Established Law
In order to show the right was clearly established, a plaintiff “must demonstrate a
substantial correspondence between the conduct in question and prior law.” 38 However, a
plaintiff “need not show that the specific action at issue has previously been held unlawful.” 39
Instead, “it suffices that the alleged unlawfulness is apparent in light of preexisting law. That is,
a general constitutional rule already identified in decisional law may apply with obvious clarity
to the specific conduct in question.” 40 Thus, “[t]he qualified immunity analysis involves more
than a scavenger hunt for prior cases with precisely the same facts.” 41 “Rather, the question is
whether the contours of the right are ‘sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” 42
“[B]ecause excessive force jurisprudence requires an all-things-considered inquiry with
careful attention to the facts and circumstances of each case, there will almost never be a
previously published opinion involving exactly the same circumstances. We cannot find
qualified immunity whenever we have a new fact pattern. Indeed, the Supreme Court has
warned that ‘officials can still be on notice that their conduct violates clearly established law
even in novel circumstances.’ The Hope decision shifted the qualified immunity analysis from a
scavenger hunt for prior cases with precisely the same facts toward the more relevant inquiry of
whether the law put officials on fair notice that the described conduct was unconstitutional.” 43
38
Huff v. Reeves, 996 F.3d 1082, 1088 (10th Cir. 2020)
39
Id.
40
Id.
41
Davis v. Clifford, 825 F.3d 1131, 1136 (10th Cir. 2016).
42
Paugh v. Uintah County, 2020 WL 4597062, *23 (D. Utah) (Parrish, J.) (citing Hope v. Pelzer,
536 U.S. 730, 739 (2002)
43
Fancher v. Barrientos, 723 F.3d 1191, 1200 (10th Cir. 2013)
17
“We have therefore adopted a sliding scale to determine when law is clearly established. The
more obviously egregious the conduct in light of prevailing constitutional principles, the less
specificity is required from prior case law to clearly establish the violation. Thus, when an
officer’s violation of the Fourth Amendment is particularly clear from Graham itself, we do not
require a second decision with greater specificity to clearly establish the law.” 44
The Tenth Circuit and Supreme Court acknowledge there is some breathing room in the
clearly established doctrine: officials can still be on notice that their conduct violates established
law in novel factual circumstances. 45 Two recent (2020) Supreme Court cases reversing grants
of qualified immunity have signaled to district courts that a case with precise facts on all fours is
not always necessary to provide fair notice. 46
In Taylor v. Riojas, 47 the Supreme Court reversed the Fifth Circuit’s finding that officers
did not violate plaintiff’s clearly established rights because plaintiff could not find a case in
which a court held that an inmate confined to extremely unsanitary cells for six days offends the
Constitution. The Tenth Circuit has heeded the guidance from Taylor, citing the case multiple
44
Casey v. City of Federal Heights, 509 F.3d 1278, 1284 (10th Cir. 2013); Quinn v. Young, 780
F.3d 998, 1005 (10th Cir. 2015) (“However, the plaintiff need not locate a perfectly on-point
case. In fact, the Supreme Court has explained that officials can still be on notice that their
conduct violates established law even in novel factual circumstances”) (cleaned up); Seymour v.
Garfield County, 2022 WL 160509, *4 (D. Utah, Nuffer, J.) (same); Leyva v. Robbins, 452 F.
Supp. 3d 1230, 1244 (D. Utah, 2020, Shelby, J.) (same)
45
Quinn v. Young, 780 F.3d 998, 1005 (10th Cir. 2015). See also Golodner v. Berliner, 770 F.3d
196, 206 (2d. Cir. 2014) (“In a sense, we must apply the Goldilocks principle. If the right is
defined to narrowly, government actors will invariably receive qualified immunity. If, on the
other hand, the right is defined too broadly, the entire second prong will be subsumed by the first
and immunity will be available rarely, if ever. We must chart a middle course.” (cleaned up).
46
See Katherine Crocker, The Supreme Court’s Reticent Qualified Immunity Retreat, 71 Duke
L.J. Online 1, (2021)
47
141 S. Ct. 52 (2020)
18
times, and has not hesitated to deny qualified immunity where existing narrow propositions in
the case law prohibit conduct, even in the absence of mirror-image case law.
In Truman v. Orem City, 48 the Tenth Circuit applied Taylor and held that even though
plaintiff could not cite a factually similar case concerning the prosecutor’s decision to present
erroneous maps and diagrams of a murder scene to a jury in a homicide trial, the established rule
from the decisional case law was sufficiently clear to provide fair notice to prosecutors that they
may not present fabricated evidence.
Likewise in the 2021 Huff decision, a deadly force case, the Tenth Circuit followed
Taylor and stated: “a general constitutional rule already identified in the decisional law may
apply with obvious clarity to the specific conduct in question.” Thus, even though there was
no similar Tenth Circuit case, the court denied the officer qualified immunity where, under the
plaintiff’s version of the facts, the shooting victim raised her hands in surrender and therefore did
not present an imminent threat. In denying qualified immunity without citing a precedent on all
fours factually, the Tenth Circuit explained: “Moreover, we need not go through the
Graham/Larsen framework in every excessive-force case. Some narrower propositions have
been clearly established by their repeated application in our case law. One such proposition is
that officers are prohibited from using deadly force against a person when it is apparent that the
person poses no physical threat to the officers or others.” 49
48
1 F.4th 1227, 1240 (10th Cir. 2021)
49
Huff, 996 F.3d 1082, 1090 (10th Cir. 2021)
19
ARGUMENT
I. Davies Used Excessive Force When He Hit Zane With His Car at High Speed
The Complaint separately identifies two uses of deadly force. The first is Davies’
decision to hit Zane with his police car immediately before firing. Although Plaintiffs discuss
each separately, the two uses of force are connected because Davies shot Zane immediately after
attempting to “run him over” 50 when Zane was injured and did not pose an imminent threat. The
car crash is thus an integral part of the facts and circumstances to which the Graham test is
applied, and both uses of force must be analyzed together.
A. Fourth Amendment Violation
Davies’ attempt to run over Zane at 48 miles per hour is a Fourth Amendment violation
because Zane did not pose an imminent threat. In Brower v. County of Inyo, 51 the Supreme
Court held that deliberately causing a suspect’s vehicle to crash could be a seizure and Fourth
Amendment violation. There is no question hitting a motorcycle at high speed is use of deadly
force. In 2011 the Sixth Circuit held: “It is only common sense— and obviously so—that
intentionally ramming a motorcycle with a police cruiser involves the application of potentially
deadly force.” 52 Utah law defines deadly force as “force that creates or is likely to create, or that
the individual using the force intends to create, a substantial likelihood of death or serious bodily
50
Complaint, ¶56
51
489 U.S. 593, 599(1989) (“If…the police cruiser had pulled alongside the fleeing car and
sideswiped it, producing the crash, then the termination of the suspect’s freedom of movement
would have been a seizure”).
52
Walker v. Davis, 649 F.3d 502, 503-04 (6th Cir. 2011); Donovan v. City of Milwaukee, 17 F.3d
944, 949-950 (7th Cir. 1994) (vehicle impact to motorcycle was unreasonable use of deadly
force- “accepting Donovan’s version of the facts, we believe that a trier of fact could find that
Zirbes’ intentional striking of Reinartz’s motorcycle violated the Fourth Amendment”).
20
injury to an individual.” 53 Under Utah law, a dangerous weapon is defined as “any item capable
of causing death or serious bodily injury.” 54 An item “will be considered a dangerous weapon if,
based upon its actual use, subjectively intended use, or objectively understood use, it can cause
death or serious bodily injury. Moreover, because an item must simply be capable of causing
death or serious bodily injury, an item not necessarily manufactured as a dangerous weapon may
nonetheless become one.” 55 In 2016, the Utah Supreme Court held conclusively a car is a deadly
weapon when, as here, it is used in a manner capable of causing serious injury or death. 56
1. Zane Did Not Pose an Imminent Threat
Defendant largely ignores the factual allegations concerning Davies’ intentional crash
and does not consider the seminal case involving hitting a vehicle with a police car. The
allegations show:
- This was not a high-speed chase. Davies confirmed in his employer statement: “…it
was a shitty bike. I mean, it wasn’t going anywhere fast. It was going may 30, 40
miles an hour, top speed, down the hills what a remember.” 57
- According to Davies’ statement, before he hit Zane on the side residential street, Zane
was only going approximately 15 to 20 miles per hour. 58
53
Utah Code Ann. §76-2-404(1)(a)
54
Utah Code Ann. §76-1-601(5)
55
State v. Yazzie, 402 P.3d 165, 168 (Utah Ct. App. 2017)
56
Mackin v. State, 387 P.2d 986, 997 (Utah 2016)
57
Complaint, ¶26. The GPS data submitted with the proposed Second Amended Complaint
show, of course, only Davies’ speed in his aggressive pursuit of Zane. The speeds associated
with Davies’ vehicle do not necessarily translate to the speed of Zane’s motorcycle, especially
where Davies has provided express lay opinion on the speed of Zane’s motorcycle. In any event,
this is a matter for further factual development, the complaint sufficiently alleges, based on
Davies’ own statements, that Zane was driving at low-speed.
58
(Compl., ¶53)
21
- There were no bystanders at risk. Betenson appeared on the radio and stated: “no
traffic.” Davies confirmed: “there’s nobody on the street.” 59
- At no point in the chase did Zane drive his motorcycle towards Davies, such that
Davies could have reasonably feared Zane was trying to crash into him. 60
- Zane did not brandish a gun. 61
- Zane did not make any threats to Davies during the pursuit. 62
- As confirmed by the radio transmission, Zane did not make any aggressive or hostile
movements towards Davies or any other officer during the pursuit. Davies did not
report over the radio any hostile movements by Zane.
These facts establish there was no imminent threat to any member of the public caused by the
low-speed pursuit of a 19-year on a mini-motorcycle.
In Scott v. Harris, the Supreme Court held an officer’s intentional act of ramming a
suspect’s vehicle must be evaluated under the Graham reasonableness standard. The officer in
Scott clocked a driver at 73 miles per hour. 63 A chase ensued exceeding 85 miles per hour. The
suspect pulled into a parking lot, where he outmaneuvered officers and continued fleeing. The
pursuit continued for 10 miles. After chasing the suspect 10 miles and after 6 minutes, the
officer decided to use a PIT maneuver. Unlike this case where Davies acted unilaterally and in
violation of Cottonwood Heights policy requiring approval before engaging a PIT maneuver, (a
policy he previously violated), 64 the officer in Scott radioed his supervisor and obtained
59
(Compl., ¶58). Even if there had been motorists on the street, Zane’s lightweight mini-bike did
not pose a genuine threat to other divers. Unlike a car, an impact from Zane’s lightweight mini-
bike would not cause any real damage to a full-size vehicle or its occupants. Instead, a
motorcycle-car accident would most likely mangle the motorcycle driver.
60
(Compl., ¶42).
61
(Compl., ¶50)
62
(Compl., ¶49)
63
Scott, 550 U.S. at 374.
64
See Proposed Second Amended Complaint.
22
permission for the PIT maneuver. The Supreme Court reviewed the video (of course absent
here) 65 and determined the high-speed reckless chase placed innocent bystanders at risk, thus
creating an immediate threat to members of the public. The following facts were crucial to the
Supreme Court in assessing the threat to the public:
- The suspect drove down narrow two-lane roads at “shockingly fast” speeds.
- There were numerous cars on the road at the time.
- The suspect’s vehicle swerved around more than a dozen other cars on the road.
- The suspect ran multiple red lights amidst traffic.
- The suspect’s vehicle forced “cars traveling in both directions to their respective
shoulders to avoid being hit.”
Based on this conduct, the Supreme Court held the suspect’s actions caused “an extreme danger
to human life.” Under the unique circumstances of Scott, the PIT maneuver was a proportional
response to an extreme danger to the public, it therefore passed the Graham reasonableness test.
Thus, Scott establishes “that where a fleeing driver is imperiling the lives of the officer or the
public, it will generally be objectively reasonable for a police officer to employ deadly force to
end the flight. However, these cases simply do not stand for the proposition that an officer may
reasonably use deadly force against a fleeing motorist where no such peril or risk exists.” 66
In contrast to Scott, the facts in this case show there was no genuine and immediate risk
to bystanders or the officer that could justify the intentional application of deadly force. As set
forth above, this was a low to moderate speed chase, there was nobody on the road, Zane did not
65
Complaint, ¶¶219-224
66
Godawa v. Bird, 798 F.3d 457, 467 (6th Cir. 2015).
23
make any threats or threatening movements, and Zane never drove his motorcycle towards
Davies.
B. Violation Was Well-Established
It was well-established, In the Tenth Circuit and by the great weight of federal authority,
as of May 2018 that an officer’s act of intentionally hitting a vehicle with his police car where
the vehicle does not pose an imminent threat to the officer or the public is unreasonable.
The governing case law in the Tenth Circuit clearly prohibits officers from using deadly
force against fleeing motorists where there is no immediate threat to officer or public safety.
In Cordova v. Aragon, 67 an officer patrolling an area where construction equipment had
been stolen began pursuing a truck carrying a skid-steer loader, later determined to be stolen. A
pursuit began. “During the pursuit, Mr. Cordova drove off the road to avoid spike strips, once
more ran a red light, repeatedly refused to stop for patrol cars with lights and sirens activated,
and generally proceeded at speeds between 30 and 50 miles per hour.” The driver attempted to
ram officers with his truck two times. At one point in the pursuit, the driver drove on the wrong
side of Interstate 76, obviously a highly dangerous act. The officer got out of his car, drew his
gun, and pointed it at the truck. Claiming he was in immediate danger, the officer fired four or
five shots. Although the officer claimed he was in immediate danger, the Tenth Circuit did not
blindly accept his story. The court considered the bullet trajectories and found the bullets hit the
driver in the back of the head. “This strongly suggests that Mr. Cordova had turned the truck and
was no longer bearing down upon officer Aragon at the moment the officer fired the fatal
67
569 F.3d 1183 (10th Cir. 2009)
24
shot.” 68 The Tenth Circuit concluded a reasonable jury could find the officer and the public
were not in immediate danger at the time of the shooting.
In Simpson v. Little, 69 officers responded to a 911 call. A woman reported her son
attacked her with an axe— a violent felony. The caller also reported someone stole her son’s
SUV. An officer heard the call and began chasing the SUV. The dash camera (absent here)
showed the SUV reach the end of a street, turn around, and head back towards the officer. While
the SUV was engaged in a three-point turn, the officer got out of his car and (unlike here) yelled
warnings: “get on the ground” and “show me your hands.” The officer again yelled “Get out of
the car and get on the ground.” The suspect did not comply with the commands and continued
driving. The officer then fired ten shots in 25 seconds. The shots hit the suspect in the back: the
rounds entered “back to front.” In denying qualified immunity, the Circuit held it was clearly
established as of 2009 that an officer may not shoot a motorist based on a “substantial but not
imminent risk” the driver would threaten the officer or innocent bystanders. Therefore, because
there was no person or officer directly in the driver’s path, the officer was on notice he could not
shoot the driver in the back.
In Reavis v. Frost, 70 officers responded to a report of a stabbing— a violent felony. A
responding officer believed he was chasing the stabbing suspect, but in fact, he was chasing the
wrong truck. The officer pursued the truck and stopped his vehicle directly in its path, with the
vehicles facing each other. The officer got out of his car and walked behind it so he could
approach the suspect from the passenger side. The officer drew his gun and, (unlike here),
68
Id. at 1187
69
16 F. 4th 1353, 1358 (10th Cir. 2021)
70
Reavis v. Frost, 967 F.3d 978, 982 (10th Cir. 2020)
25
ordered the suspect to show his hands. When the suspect did not comply, the officer pointed his
gun at the suspect. The suspect then “accelerated his truck forward and toward [the officer].” As
the suspect’s side mirror passed the officer, the officer fired five to seven times “as the vehicle
passed.” All of the rounds were fired to the side and behind the suspect.
The Tenth Circuit commended the district court for considering whether the officer was
in immediate danger at the “precise moment” shots were fired, explaining that “force is
unreasonable when a reasonable officer would have perceived that the threat had passed” and
“considering the precise moment the officer used force is important because circumstances may
change within seconds, eliminating the justification for deadly force.” 71 The appellate court
held: “we conclude that a reasonable officer in Deputy’s Frost’s position would have perceived
that Mr. Coale’s vehicle had passed him, and he was no longer in any immediate danger from an
oncoming vehicle when he decided to raise his gun.” The Tenth Circuit found the governing law
to be clearly established as of 2009. “Given our [2009] decision in Cordova, it would be clear to
every officer that the use of deadly force to stop a fleeing vehicle is unreasonable unless there is
an immediate threat of harm to himself or others.” 72
Moreover, Davies may not argue Reavis was decided after the shooting, and therefore
does not establish the law: “This court has recognized that a case decided after the incident
underlying a §1983 action can state clearly established law when that case ruled that the relevant
law was clearly established as of an earlier date preceding the events in the later §1983 action.” 73
71
Id. at 990.
72
Id. at 995.
73
Simpson v. Little, 16 F. 4th 1353, 1365 (10th Cir. 2021)
26
Note that in Reavis the Tenth Circuit did not accept the simplistic argument Davies
advances here, that because Zane was suspected of an inherently dangerous felony, that Davies
could simply take him out at any time during the pursuit. The suspect in Reavis was thought to
have committed a stabbing, yet the Tenth Circuit still carefully evaluated whether the use of
deadly force was justified at the “precise moment” force was used. 74 The Tenth Circuit
absolutely did not find deadly force was justified on a carte blanche basis simply based on the
nature of the suspected crime— the reported stabbing. If Davies’ argument were correct, the
officer in Reavis would have been justified in shooting the suspect at any time during the pursuit
simply by virtue of the reported offense and without consideration of whether there was an
immediate threat. Compare the quality of the reasoning and analysis in Reavis with Davies’
conclusory argument “Given the circumstances, it would have been unreasonable for a police
officer to believe Zane did not pose a substantial risk of harm to others based on the inherently
violent nature of Zane’s crime.” 75
The foregoing Tenth Circuit authorities are directly on point. The cases concern the use
of deadly force during vehicle pursuits of drivers suspected of committing felonies, two of which
were violent. The cases also state “a general constitutional rule” applied in the specific context
of vehicle pursuits and shootings that applies “with obvious clarity to the specific conduct in
question.” 76 Heeding the guidance from the Tenth Circuit, Davies knew he could not simply
crash into and then fire at the back of a motorcycle driver where the driver did not take any
action to create an immediate threat. When Davies took out his gun only 60 seconds into the
74
Reavis, at 995.
75
(Supp. Memo., p. 13)
76
Huff, 996 F.3d at 1088.
27
pursuit, thought about shooting Zane through the windshield, and ultimately decided to crash
into and then shoot Zane, Davies became the very government official described in all the cases
who “knew or reasonably should have known that the action he took within his sphere of official
responsibility would violate the constitutional rights of plaintiff.” 77
In addition to on point Tenth Circuit authority, Davies was on notice from “the reasoning,
but not the holding” 78 of the Scott decision that intentionally ramming into a motorcycle engaged
in a low to moderate speed pursuit, and that was not threatening bystanders, was a Fourth
Amendment violation. A reasonable good faith officer that tried to distill the teaching of Scott
could easily understand from its reasoning that deadly force may be used only against a fleeing
motorist that threatens the safety of the officer or public on the roads, such as a driver engaged in
a high speed chase with other drivers on the road. Scott therefore provided sufficient notice.
In addition to Supreme Court and Tenth Circuit case law, the great weight of authority
from other federal courts that existed on May 29, 2018, was sufficiently clear to give a
reasonable law enforcement officer “fair warning” that he could be liable for deliberately
ramming a police car into a motorcycle driver who posed no immediate risk to the life and safety
of the officer or others. 79
In Lytle v. Bexar County, 80 a citizen reported her ex-boyfriend “made threats of violence
against her.” The man was driving a stolen car and was a known car thief. The officer learned
the man was “on bond for charges of felony theft and unlawfully carrying a weapon.” Thus, the
77
Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982); Hope v. Pelzer, 536 U.S. 730, 742 (2002);
Reavis v. Frost, 967 F.3d 978, 984 (10th Cir. 2020)
78
Hope v. Pelzer, 536 U.S. 730, 743 (2002)
79
Hope, 536 U.S. at 740.
80
560 F.3d 404 (5th Cir. 2009)
28
officer had reason to believe the man was dangerous and could potentially use a weapon to avoid
arrest on a felony. A chase ensued and the officer fired at the back of the fleeing vehicle killing
one occupant. The Fifth Circuit considered the facts in the nonmovant’s favor and determined a
“rational jury could conclude that the Taurus did not pose an especially significant threat of harm
such that the of deadly force was justified.” 81
In Vaughan v. Cox, 82 the Eleventh Circuit held a reasonable jury could conclude that two
suspects thought to have stolen a truck—a felony— and who were speeding and evading arrest
on the freeway “did not present an immediate threat of serious harm” to the officer or others on
the road to justify deadly force.
In Walker v. Davis, 83 the Sixth Circuit held an officer who rammed into a motorcycle that
did not pose a threat to the officer or the public violated the motorcycle driver’s clearly
established Fourth Amendment rights. Like this case, the chase was brief and never reached
high speeds; the chase lasted about five minutes and never exceed 60 miles per hour, and there
were no bystanders at risk. The officer intentionally rammed the motorcycle driver, who was
dragged underneath the patrol car and killed. In finding a Fourth Amendment violation, the
court noted that like this case, the motorcycle driver did not threaten other motorists or
bystanders. Although the court found “few, if any, reported cases in which police cruisers
intentionally ram motorcycles….It is only common sense— and obviously so—that intentionally
ramming a motorcycle with a police cruiser involves the application of deadly force.” The court
found the officer’s intentional act of hitting the motorcycle to be “a violation of Germany’s
81
Id. at 417.
82
343 F.3d 1323, 1330 (11th Cir. 2003)
83
649 F.3d 502 (6th Cir. 2011)
29
clearly established constitutional rights. The district court’s denial of qualified immunity is
affirmed.”
In Godowa v. Bird, 84 the Sixth Circuit stated the established law as follows: “Where a
suspect is attempting to flee in a vehicle, police officers are justified in using deadly force
against a driver who objectively appears ready to drive into an officer or bystander with his car.
But, as a general matter, an officer may not use deadly force once the car moves away, leaving
the officer and bystanders in a position of safety.” Thus, the court held the officer’s actions in
firing were objectively unreasonable because the driver “never attempted to hit [the officer] with
his car and did not drive in a manner that endangered [the officer’s] life.”
In Donovan v. City of Milwaukee, 85 the Seventh Circuit found “accepting [plaintiff’s]
version of the facts, we believe that a trier of fact could find that [the officer’s] intentional
striking of [suspect’s] motorcycle violated the Fourth Amendment.”
It was therefore clearly established on May 29, 2018, by the Supreme Court, the Tenth
Circuit, and the great weight of federal authority, that the use of deadly force to stop a
motorcycle not involved in a dangerous high-speed chase was objectively unreasonable.
II. Davies Used Excessive Force When He Shot Zane in the Back
The facts alleged in the Complaint, which are accepted as true together with all
reasonable inferences, show Davies’ decision to shoot immediately after the intentional car crash
was not a reasonable and proportional response to Zane’s conduct.
84
798 F.3d 457, 464 (6th Cir. 2015)
85
17 F.3d 944 (7th Cir. 1994)
30
A. Fourth Amendment Violation
The Supreme Court has held officers may not use deadly force whenever they are
pursuing a citizen suspected of having committed a felony. 86 Instead, use of force is evaluated
for objective reasonableness considering the Graham factors: (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.
Because the second factor is “undoubtedly the most important” Plaintiffs address it first.
B. Zane Did Not Pose an Immediate Threat
Davies’ analysis of this factor is incomplete and unpersuasive.
First, Davies leads off with a 1987 Tenth Circuit case, Ryder v. City of Topeka, to argue
that deadly force was justified simply by virtue of the fact Zane was suspected of an armed
robbery. 87 Davies argues: “Under the second situation, regardless of the level of threat faced by
the officer, use of force is reasonable where the suspect is fleeing from the commission of an
inherently dangerous violent crime.” 88 The 1987 Ryder case, however, predates the 1989
Graham decision, therefore its analysis is outdated and the case is no longer controlling law.
Clearly Graham now governs the use of deadly force in the Tenth Circuit and nationwide.
Following Graham, “It has long been clearly established that, absent any other justification for
the use of force, it is unreasonable for an officer to use deadly force against a fleeing felon who
86
Tennessee v. Garner, 471 U.S. 1, 11 (1985) (“The use of deadly force to prevent the escape of
all fleeing suspects, whatever the circumstances, is constitutionally unreasonable.”)
87
Ryder v. City of Topeka, 814 F.2d 1412, 1419 (10th Cir. 1987).
88
(Def. Supp. Mem., p. 12)
31
does not pose a sufficient threat of harm to the officers or others.” 89 Davies’ reliance on the
outdated Ryder case as the foundation for his argument signals his arguments are without merit.
Second, Davies does not give meaningful attention to the Larsen factors. In deciding
whether there is a genuine and immediate threat, the Tenth Circuit requires district courts to
consider: (1) whether the officers ordered the suspect to drop his weapon; (2) whether any hostile
motions were made with the weapon towards the officers; (3) the distance separating the officers;
and (4) the manifest intentions of the subject. 90 Although he cites the Larsen factors at page 13
of his brief, Davies does not actually apply them with any serious attention. Each Larsen factor
weighs heavily in favor of Plaintiffs.
1. Davies Did Not Order Zane to Drop a Weapon
It is undisputed Davies did not order Zane to drop a weapon. Indeed, Zane was not even
holding a weapon. Davies issued no commands and no orders to Zane. He did not, for example,
order Zane to put his hands in the air. Davies had every opportunity to do so, but after crashing
into Zane, he opened his car and immediately fired shots, in line with his previous decision and
intent to use deadly force. The Complaint alleges Davies did not issue commands, and the
reason he did not is because he had already decided to use deadly force. Therefore this factor
weighs against the use of force.
Davies refuses to address the first Larsen factor head on and instead relies on Estate of
Taylor, but the case supports Plaintiffs. In Taylor, officers were responding to a dispatch call
reporting a man “flashed a gun.” Thus, officers believed the suspect had a gun. When they
89
Lytle v. Bexar County, 560 F.3d 404, 417 (5th Cir. 2009)
90
Reavis, 967 F.3d at 985.
32
confronted Taylor, officers “repeatedly ordered him to stop and show his hands. Taylor did not.
Instead, he verbally challenged the officers, kept walking, and placed at least one of his hands in
his waistband.” 91 Officers ordered Taylor to stop and show his hands multiple times, but Taylor
did not comply. More commands followed and Taylor continued to ignore them. Then, Taylor,
in response to repeated commands, told officers: “What are you going to do? Come on,…shoot
me.” Another command followed: “get your hands out now.” At this point, Taylor continued to
dig in his waistband. Another command followed: “get your hands out.” Taylor responded,
“Nah fool” and “he continued to move his concealed hands in a way that suggested he was
manipulating something in the waistline of his pants.” Then, Taylor, in a sudden movement,
raised his hand from his waistband. The officer construed this sudden motion as an immediate
threat and fired shots.
Davies’ reliance on Taylor is misplaced because the officers in Taylor believed the
suspect had a gun, and Taylor’s refusal to comply with multiple commands combined with the
sudden movement of his hand from his waistband, created an immediate threat of harm at the
precise moment shots were fired. For these reasons, Taylor supports Plaintiffs. 92 Unlike the
officers in Taylor, Davies did not issue a single command. Davies shot Zane within seconds of
opening his car door because he had already made the decision, as confirmed in his own Garrity
statement, to use deadly force. If Davies had acted like the good Salt Lake City officers in
91
Estate of Taylor v. Salt Lake City, 16 F. 4th 744, 747 (10th Cir. 2021)
92
Plaintiffs also reference the dissent by Judge Lucero: “I am concerned about the extension of
the judicially created doctrine of qualified immunity to shield officers even when there is a
substantial and material dispute in the evidence….”
33
Taylor, and issued multiple commands— at least a single command to let Zane know he was
about to die—Zane James would be alive today.
2. Zane Did Not Make Any Hostile Motions
The Complaint alleges there were no sudden or hostile motions.93
Davies, however, argues “Officer Davies also saw Zane reach for his front waistband
during the chase.” 94 This statement is without basis and improper. There is no such allegation in
the Complaint. The court should reject Davies’ attempt to evade the facts as alleged and
introduce facts not contained in the pleading. The Tenth Circuit has reversed district courts for
failing to respect the applicable pleading standard. In Estate of Harmon 95, the district court did
not accept plaintiff’s version of the facts in deciding a 12(b)(6) motion, so the Tenth Circuit
reversed: “In viewing the well-pled allegations in the light most favorable to the Estate, Mr.
Harmon was unarmed and did not start back towards the officers. Accepting these facts as true,
use of deadly force would not be justified. Accordingly, the district court erred in its assessment
of the second Graham factor.”
Because the allegations in the Complaint show there were no hostile motions, this factor
must be decided in Plaintiffs’ favor.
3. There Was Sufficient Distance and Cover
Davies does not analyze this factor, which is not surprising because it clearly weighs in
Plaintiffs’ favor. The Complaint expressly alleges Davies was protected by the cover of his
police car, both before and after he opened the car door to shoot, and that there was sufficient
93
(Compl., ¶¶47-50, 93-105).
94
(Def. Supp. Memo., p. 14)
95
2021 WL 5232248, *3 (10th Cir. November 10, 2021)
34
distance between the two to maintain safe cover. 96 Because Davies does not contest this factor,
it weighs in Plaintiffs’ favor.
4. Zane’s Manifest Intentions Were Not Hostile
The Complaint contains allegation upon allegation to show Zane never made any
threating or hostile movements, both during the pursuit and after the car crash. After the crash,
Zane began limping or hobbling to the nearest lawn. His back was to Davies. He did not make
any verbal threats to Davies. He did not point anything at Davies. He did not make any hostile
motions towards Davies. He was clearly injured and would have appeared injured to any
reasonable officer that plowed into a teenager on a mini-motorcycle at 48 miles per hour. Davies
tries to ignore all of these facts, which viewed in Plaintiffs’ favor, show Zane’s manifest
intentions were anything but threatening.
Davies’ decision to ignore this factor now is illuminating. Davies also ignored this factor
on May 29, 2018, because no matter what Zane did after he was hit by a car, Davies had already
decided to use deadly force, and that is exactly what he did. The manifest intentions of Zane
James had no effect on Davies’ decision. A reasonable officer, however, would have evaluated
Zane’s actions and determined there was no need to shoot immediately after the car crash. This
factor weighs heavily in Plaintiffs’ favor.
C. Severity of the Crime
Armed robbery is a serious offense and Plaintiffs have always been up front about this
fact. Where the offense at issue is a felony, the Tenth Circuit holds this factor must weigh
96
Compl., ¶¶102, 106.
35
against the plaintiff. 97 However, even when this factor is decided in favor of the officer, the
Tenth Circuit has held an officer can still violate the Fourth Amendment where “the remaining
factors weigh so strongly against significant use of force” as is the case here. 98 Therefore, this
factor does not substantially outweigh the most important “second” factor.
D. Actively Resisting Arrest or Attempting to Flee
The Complaint alleges that after Davies crashed into Zane, Zane was no longer fleeing. 99
The Complaint recounts the shock and trauma of the high speed car crash, as well as Zane’s
attempts to compose himself and wait for his arrest. “After the car crash, Zane was no longer
fleeing from Davies.” The Tenth Circuit has held “the use of deadly force is unreasonable when
a reasonable officer would have perceived that the threat had passed.” 100 Viewing the allegations
as true with all reasonable inferences, after the car crash, Zane no longer posed any threat to
Davies and he was no longer resisting arrest or attempting to flee. A reasonable jury could
conclude that a 19-year old “armed” only with a BB gun who had just been slammed by a police
car at 48 miles per hour after the officer “floored it” and was being pursued by multiple police
vehicles no longer believed he could escape. Because a reasonable jury could so find, this factor
weighs in Plaintiffs’ favor.
Based on the foregoing, a careful application of the Graham and Larsen factors under the
applicable pleading standard shows Davies used unreasonable force against Zane when he shot
him in the back.
97
See, e.g., Vette v. L-9 Unit Deputy Sanders, 989 F.3d 1154, 1170 (10th Cir. 2021)
98
Id.
99
Compl., ¶¶75-78.
100
Reavis, 967F.3d at 989.
36
***
In addition to the Graham factors, the Tenth Circuit evaluates whether the officer’s “own
reckless or deliberate conduct” during the seizure “unreasonably created the need to use” deadly
force. 101 “An officer’s conduct immediately connected to the suspect’s threat of force will
render the officer’s use of force unreasonable if the officer acted recklessly.” 102
The facts here show Davies acted deliberately and recklessly in crashing into Zane. As
set forth above, the crash was a violation of clearly established law. In addition, discovery has
revealed that Davies was previously disciplined for engaging in an unauthorized PIT maneuver
in 2015, and in this case, Davies violated policy by, among other things, failing to communicate
and obtain permission. 103 The court can and should consider Davies’ unlawful use of force in
evaluating the totality of the circumstances alleged. If Davies had acted reasonably, for example
by adhering to department policy by communicating with his supervisor and other officers, there
would have been a wide range of options for handling the pursuit and the shooting and death of
Zane James could have been avoided. But Davies acted unreasonably: he willfully and brazenly
violated his department’s policy for at least the second time, and decided to employ his car as a
deadly weapon. Thus, a reasonable jury could easily find Davies’ deliberate and reckless
conduct created the entire factual situation upon which Davies now alleges justified the use of
force.
101
Sevier v. City of Lawrence, 60 F.ed 695, 700 (10th Cir. 1995)
102
Flores v. City of Aurora, 2021 WL 4033117, *5 (D. Colo.) (cleaned up, quoting Allen v. City
of Muskogee, 119 F,3d 837 (10th Cir. 1997)
103
See Proposed Second Amended Complaint.
37
In addition, the Complaint clearly alleges a Fourth Amendment violation because Davies
failed to issue a warning. Under United States Supreme Court precedent, Davies must issue a
warning if feasible. 104 Although Davies tries to argue his version of the facts to suggest a
warning was not feasible, the Complaint and its inferences clearly allege Davies failed to give a
warning when he had the opportunity to do so. Davies’ attempt to argue it was not feasible
creates a question of fact that cannot be resolved at summary judgment, much less on a motion to
dismiss. 105
E. Davies’ Violation Was Clearly-Established
It was well-established in the Tenth Circuit that an officer may not use deadly force
unless there is an “immediate threat” at the “precise moment” force is used. 106 There are several
Tenth Circuit cases concerning a vehicle pursuit plus a deadly shooting. The authorities are on
point, and each found a violation of clearly established law.
In 2009, Cordova established an officer may not shoot a fleeing suspect in the back of the
head when the suspect “posed no immediate threat to the officers’ safety.” Even though the
suspect in Cordova acted violently and threatened officers by ramming patrol cars two times, the
Tenth Circuit held deadly force was not justified at the moment it was used because the officer
was not in immediate danger at the moment he fired. Reavis affirmed this proposition, when it
held the officer was not entitled to qualified immunity for firing shots after the immediate threat
had passed.
104
Garner, 471 U.S. at 12 (1985) (warning requirement); See also Utah Code Ann. §76-2-404(3)
105
See e.g., Hogan v. City of Easton, 2006 WL 2645158, *14 (E.D. Pa. ) (genuine issue of
material fact as to “whether any meaningful warning was given….”).
106
Reavis, at 988-89.
38
Similarly, Huff v. Reeves 107 shows it was clearly established in the Tenth Circuit before
2018 that an officer may not use “deadly force against a person when it is apparent that the
person poses no physical threat to the officers or others.” In Huff, Norris robbed a bank and
murdered the bank president. Norris took Ms. Huff as a hostage. Defendant Reeves, an
Oklahoma Highway Patrol Trooper heard on the radio there were two suspects from the armed
bank robbery, but Reeves did not know Huff was a hostage, instead he believed she was an
accomplice to a violent felony and murder. During the chase while Norris was trying to escape
from the bank robbery and murder, Norris fired at officers through the windshield of his SUV.
Similar to this case, Reeves then hit the SUV with his car. After the SUV came to a stop, Norris
got out of the SUV and fired additional shots at officers. Ms. Huff then got out of the car and
started to run with her hands in the air. Reeves fired 31 rounds and at least one round hit Ms.
Huff.
The district court granted Reeve’s summary judgment motion. The Tenth Circuit
reversed. Even though the Tenth Circuit could not identify a case with similar facts, thus
proving its adage use of force cases are highly unlikely to be factually similar, 108 the Tenth
Circuit reasoned the established rules set forth in the case law apply “with obvious clarity to the
specific conduct in question.” “Some narrower propositions have been clearly established by
their repeated application in our case law. One such proposition is that officers are
107
996 F. 3d 1082 (10th Cir. 2021). Although Huff was decided in 2021, the Tenth Circuit “has
recognized that a case decided after the incident underlying a section 1983 action can state
clearly established law when that case ruled that the relevant law was clearly established as of an
earlier date preceding the events in the later section 1983 action.” Soza v. Demsich, 13 F.4th
1094, 1100 no. 3 (10th Cir. 2021)
108
Quinn, 780 F.3d at 1005; Fancher, 723 F.3d at 1201.
39
prohibited from using deadly force against a person when it is apparent that the person
poses no physical threat to the officers or others.” 109 Even though the facts concerned a
murder, and shots fired at officers by suspected fleeing felons, the court determined a jury could
find the use of force to be unreasonable: “Perhaps Reeves reasonably viewed the situation
otherwise, viewing her as an accomplice to murder who was shooting at him. But that is a
question for the jury.”
The foregoing cases state the clearly established law and are directly on point. Because
Cordova and Reavis barred Davies from using deadly force to terminate the vehicle pursuit,
Davies’ decision to use deadly force violated clearly established law. The analysis in Huff also
shows Davies’ conduct violated established law. After Davies crashed into Zane, Zane posed no
immediate threat to officers. Zane was injured; he was hobbling or limping, he did not make any
verbal threats, he did not point anything at Davies, he did not reach into his pockets, he did not
make any hostile motions, he was moving away from Davies, and Davies did not order Zane to
show his hands. 110 In addition, Zane was no longer fleeing, and based on the fact he had just
been hit by a police car with other officers in pursuit and converging rapidly, it is reasonable to
infer he did not believe he could escape, and therefore believed he was about to be arrested. Just
like the plaintiff in Huff, a reasonable jury could conclude Zane did not pose an immediate threat
to Davies at the precise moment Davies decided to shoot.
Finally, if there could be any doubt as to whether the law in the Tenth Circuit allowed
officers to kill without an imminent threat to their safety, Torres v. White 111 is exactly on point
109
Id. at 1090.
110
Compl., ¶¶89-105
111
685 F. Supp. 2d 1283 (N.D. Okla. 2010)
40
and removes any doubt Davies violated clearly established law. Although Torres is not an
appellate decision, it exemplifies the “robust consensus of persuasive authority” stating the
clearly established law. 112 In Torres, officers were investigating two armed robberies when they
heard a call about a third armed robbery. When officers were about to enter an apartment in
pursuit, the armed robbery suspect jumped out of the window and ran. The suspect behaved
erratically, he ran across a state highway and onto an interstate highway on-ramp. Unlike this
case, the officer “gave several commands” to the fleeing felony armed robbery suspect, but the
suspect failed to cooperate. The officer then saw the suspect reaching in his shirt and making
motions like he had a gun: “Officer White states he believed Torres-Gomes had a gun under his
shirt because he was facing towards Officer White with both hands underneath his shirt pushing
the shirt out with his hands and pretending to hold a gun while ignoring White’s commands.”
Although the officer testified the suspect’s shoulders were square to him when he fired, the
round hit the suspect “in the back of the head.” On summary judgment, the court ruled Plaintiff
established a violation of the Fourth Amendment, and further, found the applicable law “has
been sufficiently defined by this Court as well as the Tenth Circuit….”
Torres is exactly like this case. Both cases involved an armed robbery suspect. Both
suspects fled. Officers in both cases believed the suspect had a gun. Both suspects made no
hostile motions towards the officers. Both suspects were shot in the back. In both cases, the
medical evidence conflicts with the officer’s account. Other than the fact the shooting happened
in Tulsa, Oklahoma in April 2010, there is no material difference. The facts here are much more
egregious than in Torres for many reasons, including, the officer in Torres issued several
112
See Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)
41
warnings before shooting a man in the back of the head. Zane did not receive the benefit of any
warning in violation of law. A reasonable officer following Torres would not have shot Zane in
the back simply because Zane was suspected of an armed robbery and was believed to have a
gun.
Because the law was clearly established in this circuit as of 2018, the court need not read
further. However, the following cases show federal courts have denied qualified immunity to
officers who shoot citizens, even armed robbery suspects, who do not pose an imminent threat.
Collender v. City of Brea, 113 involved an armed robbery. The suspect “had committed an
armed robbery with a handgun and threatened to kill the victim’s family.” The officer identified
himself as an officer and ordered the suspect “to get his hands up and drop to the ground.” The
officer testified he saw the suspect put his hand in a pocket, but the plaintiffs relied on video
which they claim is inconsistent with the officer’s statement. Upon seeing the suspect move his
hand, the officer ordered the suspect to “drop down on your face” and then 1/5th of a second
later, fired a rifle round into the suspect’s chest. The district court applied the proper summary
judgment standard and determined “a reasonable jury could conclude that Julian did not pose an
immediate threat and that it was objectively unreasonable for Neel to use deadly force against
him.” The district court and the Ninth Circuit each found it was clearly established that an
officer may not execute even an armed robbery suspect who does not pose an immediate threat
of serious physical harm.
113
605 Fed. Appx. 624 (9th Cir. 2015)
42
In Mason v. Lafeyette City Parish, 114 the officer responded to a reported armed robbery.
After unleashing his canine on the armed robbery suspect, the officer fired shots when he
claimed the suspect’s hand came in contact with a gun. Because the Fifth Circuit found there
were fact issues regarding whether the officer “was in danger at the moment of the threat”, the
court reversed the district court’s summary judgment ruling. The Fifth Circuit found the district
court did not correctly analyze the record because its analysis “relied entirely on the officers’
account of events.” The Fifth Circuit held it was clearly established that officers may not use
deadly force against an armed robbery suspect “when a suspect poses no immediate threat to the
officers and no threat to others.” 115
In Littlejohn v. Myers, 116 officers were dispatched to an armed robbery. The suspect fled
and the officer shot him in the back without warning. There was a factual dispute as to whether
the suspect was armed. However, the Sixth Circuit determined it was clearly established that
officers may not shoot an armed robbery suspect in the back absent a threat of imminent harm:
“But even crediting Myers’ belief that Littlejohn was armed, courts have noted that the mere fact
that a suspect is armed is, by itself, not sufficient to warrant the application of deadly force.” 117
In Longoria v. Pinal County, 118 officers pursued a man suspected of stealing a car. The
suspect was driving erratically and behaving oddly, for example, by gesturing for officers to
shoot him. Officers employed a PIT maneuver to disable the car. After the car was disabled,
officer Rankin grabbed his assault rifle and ran towards the scene. The suspect got out of the car
114
806 F.3d 268 (5th Cir. 2015)
115
Id. at 278 (cleaned up).
116
684 Fed. Appx. 563(6th Cir. 2017)
117
Id. at 568.
118
873 F.3d 699 (9th Cir. 2017)
43
and did not initially comply with orders to show his hands. Some officers fired beanbag rounds.
Officer Rankin, however, believed the suspect was in a “shooter’s stance.” Rankin fired two
rounds into the suspect’s back killing him. The Ninth Circuit found there was a material factual
dispute as to whether the suspect was an “immediate threat” at the moment Rankin fired, and
therefore reversed the district courts’ grant of summary judgment. Even though the Ninth
Circuit could not find a case precisely on point, it found it did not need to. “Otherwise, officers
would escape responsibility for the most egregious forms of conduct simply because there was no
case on all fours prohibiting that particular manifestation of unconstitutional conduct.” 119 The
Ninth Circuit held it was clearly established that if the suspect was in the process of surrendering
and no longer posed an imminent threat, then the shooting was a constitutional violation.
In Latitis v. Phillips, 120 an officer pursued a man suspected of drug offenses. The officer
ended a car chase by using a PIT maneuver and then shooting and killing the driver as he tried to
drive away. After ramming into the suspect’s car, the officer ran up to the car with his gun
raised. The officer fired and killed the suspect. The Sixth Circuit found the officer violated the
suspect’s Fourth Amendment rights because the suspect “did not present an imminent or ongoing
danger and therefore that the shooting was not objectively reasonable.” 121
In Hensley v. Price, 122 officers saw a suspect strike his daughter with a firearm— a
felony. After the altercation, the suspect walked off the porch and into the yard towards officers.
The suspect was holding the handgun with its muzzle pointed at the ground and walked towards
119
873 F.3d at 709.
120
878 F.3d 541 (2017)
121
Id. at 552.
122
876 F.3d 573 (4th Cir. 2017)
44
the officers. The officers got out of their cars and shot and killed the suspect. The district court
denied the officers’ motion for qualified immunity and the Fourth Circuit affirmed. The Fourth
Circuit determined established law prohibited officers from killing the suspect simply because he
had committed an offense and was holding a gun. 123 The Fourth Circuit also found the officer
violated clearly established law by failing to give a warning.
In Rodriguez v. City of Newark, 124 officers were advised of an armed suspect inside a
KFC restaurant with two hostages. Even though the suspected offense was severe— armed
robbery and kidnapping, the district court held: “It is clearly established that where an armed
suspect does not pose an immediate threat to the safety of officers or others, an officer may not
resort to the use of deadly force without issuing an appropriate warning. Law enforcement
officials may not kill suspects who do not pose an immediate threat to their safety.”
In Cole v. Carson, 125 officers responded to a call that seventeen-year old Ryan Cole was
walking in the neighborhood with a handgun. Cole was pointing a handgun at his head, where it
remained. Cole never pointed the weapon at officers and did not make any threatening gestures.
The officers had ample time to give a warning before shooting. Cole was not given a sufficient
amount of time to disarm himself. One officer fired at Cole while he was facing away from him.
Even though there was no case directly on point, the Fifth Circuit found the summary judgment
record showed “Ryan posed no threat to the officers or others to support firing without a
warning.” 126 “The officers had the time and opportunity to give a warning and yet chose to shoot
123
Id. at 582.
124
2018 WL 6710043 (September 30, 2018 N.D. Ca.). Although this case was decided in
September 2018, it relied on authorities dating to 1997 in stating the clearly established law.
125
935 F.3d 444 (5th Cir. 2019)
126
Id. at 453.
45
first instead.” The Fifth Circuit rejected the officers’ attempts to “repeatedly argue from a
different set of facts” and assert an “alternative set of facts.” Based on the summary judgment
record, the Fifth Circuit held it was clearly established officers may not use deadly force without
issuing a warning.
In German v. Roberts, 127 there was a report of two men breaking into cars and
brandishing a firearm. The defendant fled and was shot in the back by an officer. Like here, the
officer argued he was immune because the suspect was armed and had committed a felony. The
court disagreed: “the fact Defendant Roberts had probable cause to believe Plaintiff was armed
and had committed a felony, without more, is not justification for the use of deadly force.” 128
***
Plaintiffs could go on and document their scavenger hunt for additional cases. But there
is no need to do so because the clearly established law does not allow the use of deadly force
against a fleeing felon, qua a fleeing felon. Instead, use of deadly force is justified only if an
officer or another person is faced with an imminent threat. This is not an abstract concept
originating only from the general propositions set forth in Graham; it has been repeated again
and again in the Nation’s use of force decisions in the specific context of police shootings, such
that any reasonable officer can readily understand.
Because it was clearly established Davies could not kill Zane when Zane did not pose an
immediate threat, Davies’ motion must be denied.
127
2017 WL 8942549 (W.D. Wa.). The magistrate’s report and recommendation was adopted by
the district judge. 2017 WL3407052 (W.D. Wa.)
128
Id. at *9
46
III. Davies Has Submitted False Testimony
As set forth in Plaintiffs’ Motion for Sanctions and Exhibits in support, 129 which are
incorporated, Davies has knowingly submitted false testimony to the court.
Davies first filed an objectively false declaration when he stated: “I had been on my way
to work at the time and had not yet gotten to the police station to pick up my body
camera.” Davies knew this was false because his Garrity statement stated the opposite. Davies
is an experienced law enforcement officer well-versed in report writing and testifying in court.
His current excuse he “did not understand what he was signing” is offensive for a law
enforcement officer of his training and experience signing a short and simple declaration in the
most important case of his lifetime.
Then, on August 25, 2020, the court ruled there would be an evidentiary hearing, and
held direct testimony would be submitted in the form of declarations. 130 Knowing there would
be an evidentiary hearing, Defendants changed Davies’ false statement slightly, so that it vaguely
(and still falsely) stated Davies was “not yet on duty.” This statement matched the first false
statement Cottonwood Heights made to the public on May 29, 2018, 131 that Davies “who was
still off duty, basically saw the suspect.”
And yet even when they submitted the Second Declaration on November 11, 2020,
Defendants did not believe Plaintiffs would ever see the Garrity statement. Therefore
129
(Dkts. 122, 132)
130
(Dkt. 33)
131
See Dkt. 122-1.
47
Defendants believed Davies could continue to falsely maintain he was not yet on duty, even
though Davies was in his uniform and on duty for a 6 a.m. shift. When the Garrity statement
was inadvertently produced on the eve of the November 18, 2020 hearing, Defendants were
caught off guard and exposed. With the direct impeachment evidence now in the hands of
Plaintiffs’ counsel, Davies was forced to testify consistent with his previous statement. Although
Davies now argues his previous false statements were a “mistake” the fact remains he only
corrected his mistake after the impeachment evidence was accidently disclosed to Plaintiffs’
counsel.
A reasonable officer does not lie under oath to protect himself. The court should not
grant immunity protection to an officer proven to have lied to cover up his actions. It would be a
miscarriage of justice to reward a lying police officer who has used excessive force with the legal
cloak of protection ostensibly designed to protect good faith officers who perform their tasks in
good faith.
IV. The Doctrine of Qualified Immunity is Not Supported by the Text or History of
Section 1983
To the extent it is necessary to preserve the argument, Plaintiffs argue as follows:
Federal courts employ a plain language, textualist approach to statutory construction.
Except for 42 U.S.C. §1983. There is no immunity defense in the plain language of the statute.
The statute currently codified at 42 U.S.C. §1983 was first enacted during Reconstruction
as a section of the 1871 Ku Klux Klan Act. The term “Reconstruction” evokes some type of
federal public works project, but Reconstruction was not like the Marshall Plan. In reality,
during the Reconstruction period, the defeated Southern states continued to defy the Union and
the settlement of the Civil War, and continued to wage war on freed Blacks. For example,
48
“During the first three months of 1870, 63 Black Mississippians were murdered ... and nobody
served a day for these crimes. In 1872, the U.S. Attorney for Mississippi wrote that Klan
violence was ubiquitous and that only the presence of the army kept the Klan from overrunning
north Mississippi completely.” 132 “Many of the perpetrators of racial terror were members of law
enforcement.” 133 Southern defiance was so extreme President Grant sent federal troops to South
Carolina in October 1871 to maintain order. 134 The Reconstruction Congress that enacted the
statute did not imagine that Southern law enforcement officers attacking newly freed citizens
with all variety of horrific violence, in a wide variety of factual circumstances, could act with
impunity, so long as there was not a previous Circuit or Supreme Court case directly “on point.”
Instead, Congress intended the statute to provide civil remedies for violations of the newly
enacted Reconstruction Amendments.
Recent scholarship has shown the doctrinal justifications for qualified immunity are built
on the sand. 135 For example, University of Chicago law professor William Baude has shown the
common law did not provide a blanket good faith defense to government actors. In 1804 Chief
Justice Marshal held a naval captain who captured a foreign ship following President Adams’
instructions but in violation of the statute was not excused from liability based on his subjective
belief: “good-faith reliance did not create a defense to liability— what mattered was legality.” 136
The “strict rule of personal official liability…was a fixture of the founding era.” 137
132
Jamison v. McClendon, 476 F. Supp. 3d 386, 399 (S.D. Miss. 2020) (cleaned up)
133
Id.
134
https://millercenter.org/president/grant/domestic-affairs (March 12, 2022)
135
William Baude, Is Qualified Immunity Unlawful?, 106 Calif. L. Rev. 45 (2018)
136
Id. at 56.
137
Id.
49
Plaintiffs certainly understand the court is not free to question the doctrine, but instead
must apply the doctrine in its current form as outlined by the Tenth Circuit. Fortunately,
Plaintiffs prevail under current qualified immunity law. They have shown Fourth Amendment
violations during a vehicle chase in circumstances very similar to those in which courts have
found violations. The James Family should not be told that even though Davies killed their son
and brother in violation of the United States Constitution, that they must accept the killing
without recourse because no previous officer has acted as egregiously as Davies in the pages of
the federal reporters. “Instead of slamming the courthouse doors, our courts should use their
power to ensure Section 1983 serves all of its citizens as the Reconstruction Congress intended.
Those who violate the constitutional rights of our citizens must be held accountable.” 138
V. Claims Under the Utah Constitution
The state claims should not be dismissed:
First, claims under the Utah Constitution are subject to a different standard. 139 The Utah
Supreme Court does not require a case on point to prove the violation is “flagrant” enough to
allow redress. 140 For example, a Utah court may consider Davies’ previous and current
violations of department policy in assessing whether the current conduct is flagrant.
Second, if the court is inclined to dismiss the federal claims, the court should decline
supplemental jurisdiction over the state claims so Plaintiffs can pursue them in the case currently
pending in state court. This course is just and appropriate. There are two separate constitutions
138
Jamison, at 423.
139
Blackmore, 2021 WL 5638497, *25
140
Jensen v. Cunningham, 2011 UT 17, ¶67.
50
at issue and two sovereigns. In our federal system, it is entirely appropriate for the state to be the
final arbiter of the meaning and application of its own constitution. “It is axiomatic that state
courts are the final arbiters of state law.” 141 If this court decides the federal claims should not
move forward, then Plaintiffs would like to appeal and simultaneously pursue their state claims
in state court. This is, after all, a 2018 shooting. The ongoing litigation combat with
Cottonwood Heights is causing chronic pain to a suffering family, and in addition, the risk
memories will fade and evidence will be lost or suppressed as delays mount is rapidly increasing.
A 2018 shooting case should not go to trial in 2023 or 2024 or later, therefore if the court is
inclined to grant the motion to dismiss, Plaintiffs ask the court to decline supplemental
jurisdiction so that Plaintiffs can continue to advance their case in state court.
CONCLUSION
The court should deny the motion to dismiss.
Plaintiffs request oral argument.
DATED: March 16, 2022
/s/ Sam Meziani

Sam Meziani
Attorney for Plaintiffs
141
U.S. v. DeGasso, 369 F.3d 1139, 1144 (10th Cir. 2004)
51
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 16th day of March, 2022, I electronically filed the
foregoing document with the Clerk of the Court using the CM/ECF system which sent
notification of such filing to the following:
Mark F. James
Mitchell A. Stephens
Justin L. James
JAMES DODGE RUSSELL & STEPHENS, P.C.
10 West Broadway, Suite 400
Salt Lake City UT 84101
mjames@jdrslaw.com
mstephens@jdrslaw.com
jjames@jdrslaw.com
Attorneys for Casey Davies
Heather White
Dani N. Cepernich
Bryson R. Brown
SNOW, CHRISTENSEN & MARTINEAU
10 Exchange Place, Eleventh Floor
Salt Lake City UT 84145
hsw@scmlaw.com
dnc@scmlaw.com
bb@scmlaw.com
Attorneys for Cottonwood Heights
/s/ Sam Meziani
52

Pltf's Opposition To Casey Davies' Motion To Dismiss

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Case 2:19-cv-00341-HCN-DBP Document 152 Filed 03/16/22 PageID.

Sam Meziani (9821)

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, CENTRAL DIVISION

AARON JAMES and TIFFANY JAMES,

CASEY DAVIES, and CITY OF

Defendants. Judge Howard C. Nielson, Jr.

A. Fourth Amendment Violation ........................................................................................ 20

tenure he has re-opened an officer use of force investigation—after obtaining previously

Davies’ motion suffers from three fundamental flaws:

early stage is not well taken.

applied to the facts, the use of force was unreasonable.

RESPONSE TO DAVIES’ “SUMMARY” OF FACTS

Instead, Defendant argues his interpretation of the facts.

movement. Defendant’s tactic is improper and would be obviously ineffective on summary

recording is inconsistent with the allegations in the complaint.

Although the Complaint contains hundreds of factual allegations concerning a

Plaintiff responds to the numbered paragraphs in Defendant’s motion as follows:

1. Paragraph 1: The facts as stated in Paragraph 1 are not inconsistent with

2. Paragraph 2: Davies’ slander of Zane as an “opioid addict[]” is not a complete or

The identity of a suspect is of critical importance to a reasonable officer in deciding whether to

3. Paragraph 3: The facts as stated in Paragraph 3 are not inconsistent with

4. Paragraph 4: The facts as stated in Paragraph 4 are not inconsistent with

to any person, and no report of any break-in to any building. 6

5. Paragraph 6 : Davies acknowledges he joined the chase 7 but he then ignores

- Davies asked for confirmation of an armed robbery because he wrongly believed he

- There was “no traffic” and “nobody on the street.”

6. Paragraph 7: Davies is correct sirens were on.

police department is located.

8. Paragraph 9: Davies is correct sirens were on and Zane continued to flee.

consistent with this erroneous belief.

specific actions and intent.

12. Paragraph 13: Paragraph 13 does not accurately acknowledge Plaintiffs’

more to the Complaint than “Zane did not stop.”

- An eyewitness described Zane as “limping or hobbling” to the lawn.

- Zane’s back was to Davies.

- Zane did not make any verbal threats to Davies.

- Zane did not point anything at Davies.

- Zane’s hands were not in his pockets.

- Zane did not make any hostile motions towards Davies.

- Zane was on the lawn and moving away from Davies.

- Davies did not order Zane to show his hands.

13. Paragraph 14: Paragraph 14 is entirely improper at this stage. Davies is

threatening movements towards Davies.

Force, 17 is a comprehensive assessment of the law, regulations, and professional standards

Davies acted unreasonably and contrary to generally accepted police practices.

with Davies’ argument at this stage of the proceeding:

must reject Davies’ characterization of the facts.

much less at this stage. 20

show Davies fired without an imminent threat.

Sixth, Davies’ statement is hearsay. The statement is inadmissible by Davies at the

summary judgment stage. 22

that Davies had plenty of time to discover by a brief pat down.

• “Zane’s hands were not in his pockets.” 27

summary and characterization of the allegations.

entitle the plaintiff to relief.” 30

Use of Deadly Force

of the intrusion on the individual’s…interests against the countervailing governmental interests

“undoubtedly the most important.” 34

the manifest intentions of the subject. 37

Clearly Established Law

understand that what he is doing violates that right.” 42

“[B]ecause excessive force jurisprudence requires an all-things-considered inquiry with