Cordova v. Aragon

FILED
United States Court of Appeals
Tenth Circuit

June 17, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TRACEY CORDOVA, MORGAN
DOUTHWIT and DIVINITY
CORDOVA,

Plaintiffs-Appellants,
v. No. 08-1222
DEREK ARAGON and CITY OF
COMMERCE CITY,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 07-CV-879-EWN-CBS)

Brice A. Tondre, Lakewood, Colorado, for Plaintiffs-Appellants.

Thomas S. Rice (Elliot J. Scott with him on the brief), Senter Goldfarb & Rice,
L.L.C., Denver, Colorado, for Defendants-Appellees.

Before O’BRIEN, ANDERSON and McCONNELL Circuit Judges.

McCONNELL, Circuit Judge.

Toby Cordova was shot and killed while fleeing from police in an early-

morning car chase in Commerce City, Colorado. His survivors brought this 42
U.S.C. § 1983 action against Officer Derek Aragon and Commerce City, alleging

that Officer Aragon had violated Mr. Cordova’s Fourth Amendment rights by

using excessive force to end the police chase. Officer Aragon asserted qualified

immunity and the defendants filed a motion for summary judgment. The district

court granted their motion, holding that even when viewed in the light most

favorable to the Cordovas the facts did not constitute excessive force. We

disagree that the facts could not constitute a constitutional violation. We affirm

the grant of summary judgment to Officer Aragon, however, on the grounds that

the law was not clearly established, and also affirm as to Commerce City on the

grounds that the Cordovas have not created a genuine issue of material fact as to

whether a policy or custom of the city was the moving force behind any violation

that might have occurred.

I. Background

The parties dispute a number of facts. Because the case was decided on

summary judgement, we construe these facts in the light most favorable to the

non-moving party—here, the Cordovas.

On May 3, 2006, at 12:58 A.M., Officer James Zamora of the Commerce

City Police Department (“CCPD”) spotted a truck driving in a subdivision where

several new homes were being built. The truck was pulling a skid-steer loader (a

piece of heavy excavation equipment) on a trailer behind it. Officer Zamora

found this suspicious, as a number of thefts from construction sites had recently

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been reported in the area. He ran the trailer’s license plate and determined that it

was not registered to an address in the vicinity. The skid-steer loader was later

determined to be stolen. Officer Zamora attempted to pull over the truck, but the

driver—Mr. Cordova—refused to stop and ran through a solid red light. At this

point, the pursuit began.

When the police radio announced that Officer Zamora was attempting to

stop a suspicious vehicle, Officers Derek Aragon, Dax Nance, and Janae Rubino

headed toward his location. The officers attempted to corner Mr. Cordova after

he pulled into a business parking lot, but Mr. Cordova evaded capture by driving

straight at them. Officer Rubino announced over the radio that the truck had

attempted to ram her and that she had made an evasive turn to avoid being hit.

The pursuit continued, now moving beyond the parking lot and involving

multiple police cars with lights and sirens in action. During the pursuit, Mr.

Cordova twice 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. He eventually

turned onto eastbound I-76. Officer Aragon became concerned that Mr. Cordova

might cross over to the wrong side of the highway in an attempt to escalate the

danger of the pursuit and avoid apprehension. He decided to cross onto the wrong

side of the highway himself so that he could “warn traffic of the potential

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danger.” Dist Op. 6. 1 Mr. Cordova then crossed onto the wrong side of the

highway, too. Officer Aragon slowed his patrol car, at which point Mr. Cordova

tried to ram it, according to statements by both Officer Aragon and Officer

Nance, who was riding in Officer Aragon’s car. Officer Aragon then accelerated

past the truck, stopped his car, and attempted to deploy stop sticks. Although the

car’s exact position is not known because Officer Nance later moved it, Officer

Aragon testified that he positioned it sideways so as to force Mr. Cordova either

to move back across the highway into the proper lanes or to exit the highway via

an on-ramp.

Both officers exited the police car, with Officer Nance positioned at the

median in the center of the highway and Officer Aragon closer to the side. At

this point there are key differences in each side’s version of the story. Officer

Nance says that the truck appeared to be heading in his direction, so he drew his

gun and pointed it at the truck. He claims that the truck then swerved left, away

from him and toward Officer Aragon. Officer Aragon says that he then attempted

to deploy the stop sticks, but quickly realized the truck was too close. He drew

his gun. He claims that he was in immediate danger, about to be run over, and

therefore rapidly fired at the vehicle while simultaneously trying to move out of

1
The district court found that a reasonable juror could consider this decision
to cross the median to have been reckless.

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the way. He fired either four or five shots, one of which hit Mr. Cordova in the

back of the head, fatally wounding him and causing the truck to crash into a tree.

Several of the facts cast doubt on Officer Aragon’s claims of immediate

danger, however. Only one bullet hit the front of the truck; the rest hit the side.

The fatal shot, in fact, entered the truck from the side and went through the back

of Mr. Cordova’s 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 shot. The Cordovas also contend that Officer Aragon was

never in any immediate danger in the first place and that he could have easily

avoided any and all risk by simply remaining behind his patrol car as the truck

approached. Furthermore, they suggest that it was Officer Aragon’s own attempt

to deploy the stop sticks in the truck’s only path of escape—a maneuver that

might have violated CCPD policies—that created whatever danger might have

existed. In short, it is not at all clear whether Officer Aragon was ever in any

immediate danger at any point during the chase, and it in fact seems quite likely

that whatever danger he might have perceived had passed by the time he fired the

fatal shot.

Given these facts, the district court agreed with the Cordovas that a

reasonable juror could find that Officer Aragon fired the fatal shots at a point

when Mr. Cordova posed no immediate danger to the officers’ safety, and that

Officer Aragon’s own actions had recklessly contributed to a situation where he

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perceived a need to shoot Mr. Cordova. Even so, the district court held that the

sheer danger demonstrated by Mr. Cordova, who had persisted in a car chase in

which he had repeatedly refused to stop, had run through at least two red lights,

had driven off the road at least twice to avoid the deployment of stop sticks, had

allegedly attempted to ram multiple officers’ patrol cars, and who was now

towing a large piece of machinery on the wrong way down a highway at one in

the morning, justified a reasonable officer in using deadly force to terminate the

chase. Finding no Fourth Amendment violation, the district court granted the

defendants’ motion for summary judgment.

On appeal, Officer Aragon and Commerce City do not challenge the factual

assumptions the district court made when granting summary judgment—that is,

they accept the district court’s premise that Officer Aragon was not in immediate

danger and that no innocent bystanders were in the vicinity. See Aple. Br. 2

(“Officer Aragon and the City assume, for purposes of appeal, the factual

determinations made by the lower Court.”). Like the district court, they focus

instead on what is undisputed: that “Cordova had fled a lawful stop, attempted to

ram multiple police vehicles, run two red lights, and had begun driving the wrong

way down an interstate highway,” thereby “endanger[ing] innocent motorists and

police officers,” and argue that because of this the shooting was reasonable.

Aple. Br. 26. For this reason, we accept the district court’s findings that a

reasonable juror could find that Officer Aragon was not in immediate danger at

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the time of the shooting, and we ask only whether the potential risk to third

parties created by Mr. Cordova’s driving was alone sufficient to justify Officer

Aragon’s shooting him.

II. Discussion

A. Did the Use of Force Constitute a Constitutional Violation?

A Fourth Amendment claim of excessive force is analyzed under the

“objective reasonableness” standard that governs other Fourth Amendment

inquiries. See Graham v. Connor, 490 U.S. 386, 395 (1989) (“[A]ll claims that

law enforcement officers have used excessive force . . . in the course of an arrest,

investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under

the Fourth Amendment and its ‘reasonableness’ standard.”). We thus ask

“whether the officers’ actions are ‘objectively reasonable’ in light of the facts and

circumstances confronting them, without regard to their underlying intent or

motivation.” Id. at 397. Reasonableness “must be judged from the perspective of

a reasonable officer on the scene,” who is “often forced to make split-second

judgments—in circumstances that are tense, uncertain, and rapidly

evolving—about the amount of force that is necessary in a particular situation.”

Id. at 396–397.

There is no easy-to-apply legal test for whether an officer’s use of deadly

force is excessive; instead, we must “slosh our way through the fact-bound

morass of ‘reasonableness.’” Scott v. Harris, 550 U.S. 372, 383 (2007). This

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sloshing requires us to weigh “the nature and quality of the intrusion on the

individual’s Fourth Amendment interests against the importance of the

governmental interests alleged to justify the intrusion.” Id. Some of the factors

that we have found useful when conducting this balancing act include “the

severity of the crime at issue, whether the suspect poses an immediate threat to

the safety of the officers or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight.” Weigel v. Broad, 544 F.3d 1143, 1151–52

(10th Cir. 2008) (citation omitted). Additionally, we have considered “whether

the officers’ own reckless or deliberate conduct during the seizure unreasonably

created the need to use such force.” Medina v. Cram, 252 F.3d 1124, 1132 (10th

Cir. 2001) (citation omitted). Once the relevant facts are determined with all

reasonable inferences drawn in favor of the non-moving party at the summary

judgment stage, “whether [the suspect’s] actions have risen to a level warranting

deadly force . . . is a pure question of law.” Scott, 550 U.S. at 381 n.8.

The Supreme Court recently applied this balancing approach in Scott v.

Harris, where the Court had “little difficulty in concluding” that an officer had

acted reasonably when he terminated a car chase by ramming the bumper of the

fleeing car. Id. at 384. On one side of the scale, the suspect “posed an actual and

imminent threat to the lives of any pedestrians who might have been present, to

other civilian motorists, and to the officers involved in the chase,” and had also

demonstrated his own culpability by “unlawfully engaging in the reckless, high-

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speed flight that ultimately produced the choice between two evils that [the

officer] confronted.” Id. On the other side of the scale was the life of the suspect

and the fact that the ramming “posed a high likelihood of serious injury or death

to” the suspect. Id. Faced with the apparent equipoise of “the perhaps lesser

probability of injuring or killing numerous bystanders against the perhaps larger

probability of injuring or killing a single person,” id., the Court found that the

culpability of the suspect and innocence of the bystanders and officers tipped the

balance in favor of reasonableness.

Importantly, though, while the threat to the suspect in Scott posed a “high

likelihood” of serious injury or death, it did “not [pose] the near certainty of

death posed by, say, shooting a fleeing felon in the back of the head, or pulling

alongside a fleeing motorist’s car and shooting the motorist.” Id. (internal

citations omitted). “A police car’s bumping a fleeing car is, in fact, not much like

a policeman’s shooting a gun so as to hit a person.” Id. at 383 (quoting Adams v.

St. Lucie County Sheriff’s Dept., 962 F.2d 1563, 1577 (11th Cir. 1992)

(Edmondson, J., dissenting), adopted by 998 F.2d 923 (11th Cir. 1993) (en banc)

(per curiam)). The Court highlighted the difference with a comparison to

Vaughan v. Cox, 343 F.3d 1323 (11th Cir. 2003), a case that involved the “near

certainty” of serious injury or death. In Vaughan, the officers allegedly drove

alongside a fleeing truck and ended the flight by shooting three rounds into the

truck without warning. Id. at 1327. The Eleventh Circuit found that if the jury

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believed this version of the facts, the shooting could constitute excessive force.

Id. at 1332.

When discussing excessive force, we sometimes use the term “deadly

force” as if it is a unitary concept. See, e.g., Sevier v. City of Lawrence, 60 F.3d

695, 699 (10th Cir. 1995) (“Defendants’ use of deadly force was justified under

the Fourth Amendment if a reasonable officer in Defendants’ position would have

had probable cause to believe that there was a threat of serious physical harm to

themselves or to others.”). As Scott makes clear, however, the term encompasses

a range of applications of force, some more certain to cause death than others. It

includes force that is “likely” to cause serious injury or death, such as ramming,

and also includes force that is nearly certain to cause death, such as a shot to the

head. Scott strongly suggests that the reasonableness balancing must take into

account that there is a spectrum of “deadly force,” and that just because a

situation justifies ramming does not mean it will justify shooting a suspect in the

head.

This is not a case of ramming. Officer Aragon shot Mr. Cordova in the

back of the head while he was driving—an application of force closer to that in

Vaughan than to that in Scott. But there are other differences that cut the other

way. The motorist in Vaughan was exceeding the speed limit by ten miles per

hour and attempting to evade the police, but he remained in his lane of traffic and

did not engage in highly reckless maneuvers. Id. at 1330. Mr. Cordova’s

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behavior—towing a large piece of machinery down the wrong way of a highway

in the dark, and employing evasive maneuvers such as running red lights, driving

off the road, and attempting to ram police cars—posed a much greater risk to

police and innocent bystanders. Because there were no other motorists in the

immediate vicinity, however, this risk was presumably less “imminent” than that

posed by the driver in Scott. Cf. Scott, 550 U.S. at 379 (describing how the

suspect “swerve[d] around more than a dozen other cars, cross[ed] the double-

yellow line, and force[d] cars traveling in both directions to their respective

shoulders to avoid being hit”). In this respect, the case falls somewhere in

between Scott and Vaughan. We are therefore forced to consider whether the

substantial but not imminent risk imposed on innocent bystanders and police by a

motorist’s reckless driving justifies a reasonable officer to use a level of force

that is nearly certain to cause the motorist’s death. This is not an easy question,

or one that any court could feel confident in answering.

This court has stated that “[w]here an officer has probable cause to believe

that a suspect poses a threat of serious physical harm, either to the officer or

others, it is not constitutionally unreasonable to prevent escape by using deadly

force,” Weigel, 544 F.3d at 1152 (quoting Carr v. Castle, 337 F.3d 1221, 1227

(10th Cir. 2003)), but that statement must not be read too broadly. It does not

mean that any risk of physical harm to others, no matter how slight, would justify

any application of force, no matter how certain to cause death. The Supreme

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Court’s careful distinction of Vaughan in Scott belies that sweeping a proposition.

We do not believe it would be reasonable for an officer to shoot any motorist who

ran a red light or swerved through lanes, simply because reckless driving poses

some threat of physical harm to a bystander who might be down the road. Car

chases inherently risk injury to persons who might happen along their course, and

if that risk alone could justify shooting the suspect, every chase would end much

more quickly with a swiftly-fired bullet. We do not mean to minimize that risk,

or suggest that the risk to others must always be imminent in order to justify the

use of deadly force, cf. Scott, 127 S. Ct. at 1778 (use of deadly force, though not

of a level nearly certain to cause death, justified by “threat to lives of any

pedestrians who might have been present”) (emphasis added), but “the Court’s

decision in Scott did not declare open season on suspects fleeing in motor

vehicles.” Lytle v. Bexar County, 560 F.3d 404, 414 (5th Cir. 2009). When an

officer employs such a level of force that death is nearly certain, he must do so

based on more than the general dangers posed by reckless driving.

To the extent that the district court held that the hypothetical risk Mr.

Cordova posed to fellow motorists who might happen along was itself enough to

render the shooting reasonable, it was in error. The threat must have been more

than a mere possibility. The facts show that Mr. Cordova was driving recklessly

down the wrong side of the highway. The facts do not, however, show that any

other motorists were in the vicinity, or that other motorists would not be able to

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spot Mr. Cordova and avoid an accident themselves. Mr. Cordova’s behavior did,

of course, create risks for other motorists who might come along, but that risk of

future harm was not enough to justify the near certainty of Mr. Cordova’s death.

The threat to the officers themselves—if actual and imminent—could of

course shift the calculus in the direction of reasonableness. If a reasonable

officer in Officer Aragon’s position would have feared for his life or the life of

his fellow officers, then on one side of the scales would sit not only the potential

(even if distant) risk to any motorist who might wander along, but also the very

immediate risk of death to the pursuing officers. The urgency of terminating the

chase would increase and the balance would tip in the officers’ favor. The use of

deadly force—even of the level nearly certain to cause death—would likely be

justified. Here, however, the threat to the officers is a disputed fact, and for

purposes of the summary judgment motion the district court explicitly assumed

the officers to be in no immediate danger.

It is with reluctance that we second-guess the split-second decisions of

trained officers reacting to difficult situations in the line of duty. We are not

well-suited to act as a police supervisory board, making finely calibrated

determinations of just what type of misbehavior justifies just what level of

response. We cannot say, however, that the general risks created by a motorist’s

fleeing from the police are, without more, enough to justify a shooting that is

nearly certain to cause that suspect’s death.

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 Our esteemed colleague in dissent criticizes us for not delving more deeply

into the record and instead accepting the district court’s construction of the

undisputed facts of this case. But the dissent rests entirely on parts of the record

the parties have not cited in their briefs, and in some cases on arguments they

have expressly disavowed. It is not our role to sift through the record to find

evidence not cited by the parties to support arguments they have not made. Gross

v. Burggraf Constr. Co., 53 F.3d 1531, 1546 (10th Cir.1995) (“Without a specific

reference, we will not search the record in an effort to determine whether there

exists dormant evidence which might require submission of the case to a jury.”

(internal quotation omitted)); State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979,

984 n. 7 (10th Cir.1994) (if a party does not raise an argument in its opening

brief, the argument is waived).

In support of its claim that Officer Aragon was indisputably in imminent

danger, the dissent argues that the district court “went overboard” in construing

the facts favorably to the nonmoving party, Dissent at 9 n.13, and criticizes us for

“[w]ith no analysis . . . accept[ing] [the] assumption” that Officer Aragon was not

in immediate danger. Id. at 9. Officer Aragon and Commerce City have not

contested the district court’s assumptions, though, and indeed have expressly

stated that “Officer Aragon and the City assume, for purposes of appeal, the

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factual determinations made by the lower Court.” Aple. Br. 2. 2 Perhaps the

dissent would have litigated the appeal differently, but the defendants’ decision

not to challenge the district court’s analysis of the facts bearing on Officer

Aragon’s danger constitutes a waiver. Mhoon, 31 F.3d at 984 n. 7.

Even aside from waiver, the undisputed fact that at least some of the shots

hit the truck from the side, showing that the truck was no longer bearing down on

Officer Aragon, and the testimony of a Commerce City police officer that “one

trained in the use of that pistol in tactical shoot/no shoot scenarios would have no

difficulty ceasing firing when the danger ceased,” Aple. Br. 18, suggest that a

reasonable jury could disagree with the dissent’s confident determination that

Officer Aragon was indisputably in immediate danger when he fired the fatal

shot.

In support of its view that Mr. Cordova’s conduct posed an imminent

danger to innocent motorists, the dissent challenges the district court’s conclusion

that the record did not clearly show that other vehicles were in the vicinity. The

dissent relies on a statement in Officer Aragon’s affidavit—referred to in neither

party’s brief—that he had seen “three or four cars.” Dissent at 19. But again,

this was an issue the defendants explicitly chose not to contest. They state:

2
Because this case was decided on summary judgment, the district court
did not make any true “factual determinations,” but it carefully set forth its
understanding of which facts were undisputed. It is to these determinations the
appellees are referring.

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“Plaintiffs also claim that the District Court’s conclusion that ‘no evidence

suggests that westbound traffic was immediately approaching when Officer

Aragon fired’ effectively ‘rules out danger to innocent motorists.’ . . . Whether or

not there were vehicles visible in the immediate area, there is no question that

Cordova’s flight posed enormous danger to motorists and police officers.” Aple.

Br. 23–24. In other words, rather than claim that the record indisputably shows

that other vehicles were visible in the immediate area, the defendants accept that

this is a disputed factual issue and argue that the danger was “enormous” under

either version of the facts. When even the defendants treat as an open question

whether there were vehicles visible in the immediate area, we cannot join the

dissent in treating the contrary as an undisputed fact.

Perhaps defense counsel would have been able to persuade a jury that the

danger to Officer Aragon or to the public was indeed imminent, as the dissent

believes, but that is not the issue. We do not hold that “Aragon’s conduct in

shooting Cordova was unreasonable,” as the dissent asserts, Dissent at 8, but hold

only that the contrary has not been established as a matter of law, based on the

undisputed facts in the record and in light of the parties’ arguments on appeal.

B. Was the Law Clearly Established?

Even if Mr. Cordova’s Fourth Amendment rights were violated, Officer

Aragon is still entitled to qualified immunity if the right was not clearly

established. See Christensen v. Park City Mun. Corp., 554 F.3d 1271, 1277 (10th

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Cir. 2009). “Ordinarily, in order for the law to be clearly established, there must

be a Supreme Court or Tenth Circuit decision on point, or the clearly established

weight of authority from other courts must have found the law to be as the

plaintiff maintains.” Weigel, 544 F.3d at 1153 (quoting Cruz v. City of Laramie,

239 F.3d 1183, 1187 (10th Cir. 2001)). When a clearly established right depends

on the application of a general principle of law to a particular set of facts, “its

contours must be sufficiently clear that a reasonable official would understand

that what he is doing violates that right.” Id. at 1154 (quoting Hope v. Pelzer,

536 U.S. 730, 739 (2002)).

There is no question that the general principle governing the use of force is

clearly established: deadly force is justified only if a reasonable officer in the

officer’s position would have had probable cause to believe that there was a threat

of serious physical harm to himself or others. See Graham, 490 U.S. at 396;

Sevier, 60 F.3d at 699; Wilson v. Meeks, 52 F.3d 1547, 1552–53 (10th Cir. 1995).

What Officer Aragon contests is whether a reasonable officer should have known

that this general principle prevented him, in this case, from ending the car chase

by shooting Mr. Cordova. Not every constitutional principle that involves a

balancing test requires that the precise factors involved in the present case have

previously been quantified and weighed, of course. The Supreme Court has

“expressly rejected a requirement that previous cases be ‘fundamentally similar’”

in order for the law to be clearly established, Hope v. Pelzer, 536 U.S. 730, 741

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(2002), and has held that “a general constitutional rule already identified in the

decisional law may apply with obvious clarity to the specific conduct in question,

even though the very action in question has not previously been held unlawful.”

Id. (quoting United States v. Lanier, 520 U.S. 259, 271 (1997)). In this case,

however, substantial differences from prior case law convince us that the result of

the balancing test had not been clearly established.

Two of the inputs into the balancing equation have particular importance in

this case: the level of force used by the officer and the degree of risk posed to

innocent bystanders. In Scott v. Harris, the risk to potential third parties was

substantial, but the risk to the suspect, while high, was not certain to cause death.

The Court found no constitutional violation. See also Cole v. Bone, 993 F.2d

1328, 1333 (8th Cir. 1993) (officers aiming at engine, rather than driver, of semi

truck in high-speed chase on crowded interstate did not act unreasonably, though

the driver was hit). In Vaughan, in contrast, the risk to the suspect was high and

death nearly certain, but the risk to third parties was insubstantial. There, the

court found a constitutional violation. See also Tennessee v. Garner, 471 U.S. 1,

11 (“shooting nondangerous fleeing suspects is [not] so vital as to outweigh the

suspect’s interest in his own life”) (emphasis added); Smith v. Cupp, 430 F.3d

766, 773 (6th Cir. 2005) (driving a stolen police car did not by itself pose a grave

enough danger to the public to justify shooting). Our case is a hybrid—the risk to

potential third parties was as substantial, but less imminent, as in Scott and the

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level of force was nearly certain to cause the death of the suspect. Whether that

situation is more like the police using deadly force (but not of a level certain to

cause death) to prevent a substantial risk of harm to others, or more like the

police shooting a suspect who poses minimal risk of harm to others, is not

immediately clear. Officer Aragon was confronted with a situation that fell

between these two lines of cases, and the result was uncertain.

In Lytle v. Bexar County, the Fifth Circuit recently addressed a case similar

to ours. That court concluded that the general principle governing excessive force

was sufficiently well-established that a reasonable officer would have known that

“it is unreasonable for a police officer to use deadly force against a fleeing felon

who does not pose a sufficient threat of harm to the officer or others.” 560 F.3d

at 417. While this general principle is correct, it still begs the question of what

constitutes a sufficient threat. In Lytle, the police shot at a fleeing Taurus which

posed “some threat of harm.” Id. at 415. That threat, however, consisted of

driving at high speeds through a residential area. While that level of threat might

be obviously insufficient, it does not compare to the threat posed by Mr. Cordova,

who was making evasive maneuvers while driving with extreme recklessness

down the wrong way of a highway at night. Lytle is closer to Vaughan, where the

certainty of the suspect’s death was weighed against the smaller risk of harm to

the general public. It does not resolve how the reasonableness calculus should

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come out in the situation faced by Officer Aragon, where the risk of death is

certain and the risk to third parties is substantial.

“The principles of qualified immunity shield an officer from personal

liability when an officer reasonably believes that his or her conduct complies with

the law.” Pearson v. Callahan, --- U.S. ---, 129 S.Ct. 808, 823 (2009). The law

in our circuit and elsewhere has been vague on whether the potential risk to

unknown third parties is sufficient to justify the use of force nearly certain to

cause death. Given that our precedent does authorize the use of deadly force

when a fleeing suspect poses a threat of serious harm to others, Officer Aragon

was not unreasonable in believing that a potential threat to third parties would

justify such a level of force.

C. Municipal Liability

Though we hold that Officer Aragon is shielded from liability on the

grounds that, even if a constitutional violation occurred, the law was not clearly

established, the same qualified immunity analysis does not apply to

municipalities. See Christensen, 554 F.3d at 1278. To succeed in a § 1983 claim

against a municipality, a plaintiff must show two elements: “(1) a municipal

employee committed a constitutional violation, and (2) a municipal policy or

custom was the moving force behind the constitutional deprivation.” Walker v.

City of Orem, 451 F.3d 1139, 1152 (10th Cir. 2006) (internal citation omitted).

As discussed above, we have found a genuine issue of material fact as to whether

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a constitutional violation occurred such that we cannot dispose of that issue on

summary judgment. We must therefore remand for the district court to consider

the City of Commerce’s liability unless we find that the Cordovas have failed to

create a genuine issue of material fact as to whether a municipal policy or custom

was the moving force behind the constitutional deprivation.

A municipality is not liable for the constitutional violations of its

employees simply because such a violation has occurred; a policy or custom must

have actually caused that violation. See Christensen, 554 F.3d at 1279 (“The

doctrine of respondeat superior cannot be employed to hold governmental entities

liable under § 1983 for the constitutional torts of their employees.”); cf. Duffield

v. Jackson, 545 F.3d 1234, 1239 (10th Cir. 2008) (supervisor status alone

insufficient to establish affirmative link between defendant and constitutional

violation). The Cordovas admit that Commerce City’s official policy, which

authorizes officers to use deadly force only “in protection of themselves or other

persons from the immediate threat of death or serious bodily injury,” Dist. Op. 16

(citing CCPD Policy and Procedures Manual § 2.1.11), mirrors the constitutional

standard. Aple. Br. 32. Their claim is that the city’s actions deviated from this

policy both in its training of officers and in failing to discipline Officer Aragon

for his conduct.

As for any failure to discipline Officer Aragon, basic principals of linear

time prevent us from seeing how conduct that occurs after the alleged violation

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could have somehow caused that violation. A subsequent cover-up might provide

circumstantial evidence that the city viewed the policy as a policy in name only

and routinely encouraged contrary behavior, see, e.g. Grandstaff v. City of

Borger, 767 F.2d 161, 171 (5th Cir. 1985) (“The disposition of the policymaker

may be inferred from his conduct after the [violation occurred].”), though that

hardly seems to be the case here, since the County Critical Incident Team

conducted a full investigation and the CCPD police chief simply called off a

second investigation as being unnecessarily duplicative. A failure to investigate

or reprimand might also cause a future violation by sending a message to officers

that such behavior is tolerated. It does not, however, in and of itself constitute a

causal connection in the immediate case.

If the city promulgates a constitutional policy but trains its officers to

violate that policy, however, a facially constitutional policy will not shield the

city from liability and a causal connection could be established. The Cordovas

point to only two statements, both made by Sergeant Robert McCoy, testifying as

spokesman for the city, which they contend show a definite disregard for the city

policy. First, when asked to describe when officers are taught they can apply

deadly force, Sergeant McCoy said the suspect would have to have shown “the

ability to commit an act against somebody” who was “actually in jeopardy or can

be foreseen [to be] in jeopardy,” and that the suspect had “the opportunity to

cause the harm to that person.” App. 434. Then, when asked if the word

-22-
“immediate” as it appears in the policy actually meant “imminent,” he said he

would agree. Id. 434–35. This is not the smoking gun the Cordovas make it out

to be. First of all, as Scott v. Harris shows, the constitution permits deadly force

even when the dangers to third parties are remote. It is that subcategory of force

nearly certain to cause death that requires a more immediate threat. Even as

applied to the specific case of shooting at a suspect, though, Sergeant McCoy’s

agreeing that “immediate” and “imminent” mean the same thing does not strike us

as a matter of constitutional significance. The point is that the threat to another

has to be real and concrete in order to justify taking the suspect’s life, and

Sergeant McCoy interprets both the words “immediate” and “imminent” as

meaning “‘Right here, right now,’” App. 435, a meaning perfectly consistent with

the constitutional standard.

The Cordovas also point to a second portion of Sergeant McCoy’s

testimony where he discusses the specific question of when an officer can shoot at

fleeing suspects:

A. [Sgt. McCoy]. If you believe that the person is a danger to other
officers and the public based upon the actions that they’ve done.
Q. Does it have to be immediate danger, or can it just be some danger
in the far distant future?
A. I believe if the actions are such that he’s—he or she’s shown the
propensity of doing that violence to the point of trying to hurt
someone, kill someone, that you can stop that threat to the public, and
it doesn’t have to be immediate.
Q. And that’s the policy of the Commerce City Police Department,
correct?
A. Yes, sir.

-23-
App. 379. Again, though, the Cordovas make more of this statement than it

supports. Sergeant McCoy does not say that officers can shoot at any fleeing

suspect who poses some general danger to the public. Instead, after being pressed

repeatedly on the question of whether an officer might ever be justified in

shooting, he concedes that there are some instances that might warrant it, as when

a suspect has “shown the propensity of doing that violence to the point of trying

to hurt someone, kill someone.” There is a difference between a suspect who is

fleeing in an attempt to kill someone and a suspect whose reckless flight risks

killing someone. The former suspect would pose a real and concrete threat to an

innocent party, even though that threat might not materialize within the course of

the chase; the latter’s danger is much more speculative. Had Mr. Cordova been a

serial killer whose escape would be nearly certain to result in future victims, we

have no doubt the constitutional calculus would change and a shooting might be

justified, whether other motorists were in his path or not.

It bears emphasizing that the constitutional standard that we elaborate upon

today is hardly a mathematical formula with easily defined lines. We do not hold

that an officer would never be justified in shooting a fleeing suspect, and

Sergeant McCoy’s reluctance to frame Commerce City’s policy in such absolute

terms shows why: policemen encounter a variety of unexpected situations that

pose a range of dangers to the public they are sworn to protect. We hold simply

that a distant risk to hypothetical motorists posed by a suspect’s reckless driving

-24-
does not alone justify shooting that suspect. Commerce City’s policy, neither as

written nor as described by Sergeant McCoy, does not teach otherwise.

III. Conclusion

When construed in the light most favorable to the non-moving party, the

facts show that Officer Aragon used a level of force nearly certain to cause Mr.

Cordova’s death, though without any immediate threat to himself or others.

Those facts, if true, would constitute a violation of Mr. Cordova’s Fourth

Amendment right to be free from unreasonable seizure. Because the law was not

clear on how high the risk of harm to third parties must be before an officer can

use a level of force nearly certain to cause death, however, we AFFIRM on

qualified immunity grounds the district court’s grant of summary judgment as it

applies to Officer Aragon. We also AFFIRM the grant of summary motion as it

applies to Commerce City on the ground that the Cordovas have not created a

genuine issue of material fact as to whether a policy or custom of the city was the

moving force behind any violation that might have occurred.

-25-
08-1222, Cordova v. Aragon

O’BRIEN, J., concurring in part and dissenting in part.

The majority concludes Derek Aragon is entitled to qualified immunity

because the law it announces today was not clearly established at the time of

these events and the municipality is entitled to summary judgment. I agree, but

can go no further. The law now established for this Circuit, taken without regard

to the facts of this case, is reasonable enough, and benign—“the general risks

created by a motorist’s fleeing from the police are [not], without more, enough to

justify a shooting that is nearly certain to cause that suspect’s death.” (Majority

Op. at 14.) But even the newly minted rule cannot reasonably lead one to

conclude a constitutional violation occurred here.

The majority repeatedly emphasizes that Aragon shot Toby Cordova in the

back of the head. It makes it sound like an execution. Certainly that is what

Cordova’s survivors would have us believe. But, as I will demonstrate, the record

tells a quite different story. Aragon needed to stop a dangerous man astride eight

tons of machinery 3 and exhibiting evil intent. That man, Cordova, had repeatedly

demonstrated a callous willingness to endanger others rather than submit to police

authority.

3
Often called a “dually,” trucks such as Cordova’s normally weigh over two
tons. Cordova’s truck, a 1990 Chevrolet K3500 Extended Cab, weighs over 5,000
pounds.
http://autos.msn.com/research/vip/spec_Exterior.aspx?year=1990&make=Chevrolet&m
odel=C/K%203500&trimid=-1. It was pulling a trailer hauling a skid-steer loader, a
piece of construction equipment. The model involved here, a Takeuchi TL150 loader,
has an operating weight of 10,902 pounds. See http://www.takeuchi-
us.com/TL150.html.
 Aragon fired five shots—all shots were fired in one second or less—the

first bullet entered through the windshield and three others entered the side

windows of Cordova’s truck as it hurtled past Aragon; there was no accounting

for the fifth. If the first shot was justified, as it clearly was, all shots were

justified—that the fatal shot was the last or came from an oblique angle is of no

moment. This was not gentlemen’s boxing, governed by the Marquis of

Queensberry rules. And Aragon was not trying to frighten Cordova into

submission, an unlikely prospect in the penetrating light of recent events. Aragon

was trying to put an end to an obviously dangerous situation. 4 Such being the

case, an officer cannot be expected to shoot, pause to evaluate the effect, and then

calmly decide whether it is necessary or prudent to shoot again. That is a lot to

do in one second under extreme conditions. The only question we need address is

whether, in the instant it was made, Aragon’s decision to use deadly force was

reasonable. We need not parse the details occurring within one second after the

first trigger pull. The shots came of urgent necessity and great fear. Aragon was

justified in opposing the deadly force bearing down upon him with equal force.

His decision to use deadly force was reasonable under these circumstances. No

constitutional violation occurred here. I dissent from the majority’s contrary

holding.

I. Factual Background

As the majority concedes, to decide this case we must “slosh our way

through the factbound morass of ‘reasonableness.’” Scott v. Harris, 550 U.S.

4
“It ain’t over till it’s over.” Yogi Berra.

-2-
372, 383 (2007). But the majority has studiously ignored the very facts which

justified Aragon’s use of force.

In our totality of the circumstances analysis we must consider all

uncontested facts and construe genuinely contested material facts in the light most

favorable to Cordova. Cordova is also entitled to all inferences reasonably drawn

from those facts. It is a tedious process, but at the end of the day (if we do not

confuse arguments, allegations and assumptions with facts) there are few

contested material facts and those are easily construed in Cordova’s favor,

although doing so does not salvage plaintiff’s case. Sweeping generalizations do

not inform this debate; the devil is in the details, which I now relate.

At 12:58 A.M., Officer James Zamora, a Commerce City police officer,

noticed a dual-wheeled truck towing a trailer with a skid-steer loader 5 near

Chambers Road and 104th Avenue in Commerce City, Colorado. Knowing thefts

of construction machinery had recently occurred in the area and considering the

oddity of such equipment being hauled at 1:00 A.M., Zamora reported the trailer’s

license plate number to dispatch. Dispatch reported the trailer’s registered

address was not in the immediate area so Zamora decided to stop the truck. He

activated his vehicle’s overhead lights but Cordova, the driver of the truck,

refused to stop; instead Cordova continued west on 104th Avenue, running a red

light. Zamora’s supervising officer ordered Zamora to terminate his pursuit but

ordered other officers to respond to the area in hopes of sealing it off.

5
The substantial size and weight of Cordova’s rig obviously increases
stopping distance and decreases maneuverability.

-3-
 Zamora stopped, deactivated his overhead lights and watched Cordova

proceed down 104th Avenue and through its intersection with Colorado Highway

2. But a train blocked the 104th Avenue escape so Cordova turned into a parking

lot and turned off his lights. Zamora saw this and alerted others over police radio

at 1:04 A.M. At this time, six separate officers were in the area and became

involved in the pursuit: Zamora, Aragon, Nance, Rubino, Douglas and

Walkinshaw. Zamora and Rubino drove to the parking lot and attempted to

contain Cordova by blocking his exit with their cruisers. They were unsuccessful

because Cordova drove at them, nearly hitting both vehicles. Officer Rubino

reported Cordova “drove directly at her and [she] felt that [he] was attempting to

‘ram’ her patrol car.” (R. Appellants’ App. Vol. II at 268.) Based on Cordova’s

actions, the officers resumed the pursuit.

After leaving the parking lot, Cordova ran another red light and proceeded

north on Colorado Highway 2. 6 Zamora sped ahead of Cordova and attempted to

lay “stop sticks” 7 on the road but Cordova went off the road to avoid them.

Aragon and Nance (who were traveling in the same vehicle) stationed themselves

at the junction of Highway 2 and Interstate 76 (I-76) in order to deploy stop

sticks. Their efforts came to naught because Cordova entered eastbound I-76 to

avoid their stop sticks. Zamora, who had followed Cordova onto I-76, raced

ahead and again prepared to deploy stop sticks just past the interchange with

Interstate 470. Aragon and Nance also followed Cordova onto eastbound I-76.
6
See maps, Attachments A & B.
7
“‘Stop sticks’ are a device which can be placed across the roadway and used to
flatten a vehicle’s tires slowly to safely terminate a pursuit.” Scott, 550 U.S. at 397 n.9
(Stevens, J., dissenting).

-4-
Aragon observed “moderate traffic” or more specifically “three or four cars”

travelling westbound on I-76. (R. Appellants’ App. Vol. I at 196, 201.) He “was

in fear for the safety of the public . . . .” (Id. at 201.)

Aragon’s experience with pursuits included situations where a fleeing

suspect crossed into oncoming traffic to escalate the danger and force police to

terminate the pursuit. Based on Cordova’s reckless driving and attempts to avoid

capture, Aragon feared Cordova would cross the median, endangering other

motorists. Therefore, Aragon and Nance, with their vehicle’s emergency lights

activated, crossed the median to warn oncoming traffic. Shortly thereafter,

Cordova did just as Aragon feared—he crossed the median just before the

location where Zamora had deployed stop sticks. Cordova did not turn west on I-

76 (the direction of normal traffic flow). Instead he fell in behind Aragon’s

cruiser. At this point both Cordova and Aragon were moving in the wrong

direction on the westbound lanes of I-76. Although both lanes were open at that

time, Cordova came up behind Aragon’s cruiser (within two feet). Aragon had to

accelerate to avoid being hit. Because there was “plenty of room to get around

[our car]” Aragon felt Cordova’s near-miss of his vehicle was another attempted

ramming. (Id. at 87.) Aragon sped up to gain enough distance to warn other

motorists and allow a safe deployment of stop sticks across the westbound lanes.

Aragon believed Cordova was acting in an “extremely dangerous” manner and

using his truck as a “deadly weapon.” (Id.) Aragon stopped approximately ¾ of

a mile later, blocking the westbound lanes with his car. 8 Nance exited the vehicle
8
There is no dispute as to whether Aragon’s vehicle blocked the westbound
lanes; the only dispute is whether the car was facing the entrance ramp or the median.
(continued...)

-5-
and went into the median. Aragon attempted to lay stop sticks but realized

Cordova’s vehicle was approaching quickly and was already too close for him to

safely do so.

As Cordova neared the police cruiser (and Aragon and Nance) he first

drove toward Nance’s position in the median. Nance pulled his weapon and

aimed it at Cordova. Cordova then “made an abrupt turn and swerved” toward

Aragon’s position heading toward the entrance ramp from 136th Avenue (where

he would be going the wrong way on the ramp). (Id. at 82.) Zamora said

Cordova’s vehicle “swerved and thrashed about.” (Id. at 72.) 9 Aragon “feared for

[his] life” at that moment and believed he “was about to be run over.” (Id. at 88.)

In response, Aragon fired his weapon five times. For purposes of summary

judgment only, the defendants conceded one bullet entered through the windshield

and four through the driver side windows of the truck. They also conceded, again

for purposes of summary judgment only, the fatal bullet was fired from the side of

the truck, “after some or all of the truck had passed Officer Aragon.” 10 (Id. at

45.) Aragon stated he fired because he “was in immediate danger . . . about to be

run over.” (Id. at 88.) While firing, Aragon felt “in imminent danger of death –

of being run down by this large truck.” (Id.) Cordova’s truck continued, only

(...continued)
This dispute is immaterial because Aragon was clearly not behind the police vehicle at
the time he shot at Cordova.
7
Zamora was on Eastbound I-76, parallel to Cordova’s truck and trailer.
10
Four of the shots definitively hit Cordova’s truck: at least one bullet entered
through the windshield, two entered the driver side window, and a fourth entered
through the driver side window of the truck’s extended cab. It was not determined
whether the fifth shot hit Cordova’s truck.

-6-
stopping when it hit a tree. The speedometer was frozen at 50 miles per hour

(mph). At 1:14:12 A.M. the police supervisor ordered the pursuit terminated.

Five seconds later, at 1:14:17 A.M., Aragon reported shots fired.

The entire chase lasted approximately sixteen minutes and covered about

eight miles of county, state, and interstate highways. 11 The last portion of the

chase occurred on a section of I-76 approximately four miles long. 12 Assuming

Cordova’s truck was traveling 40 mph, 13 the chase on I-76 lasted approximately

six minutes.

None of the above facts are disputed (except the minor fact noted in

footnote 11), but there are other disputed facts, which weigh in Cordova’s favor,

albeit only slightly. I accept them as true. One relates to the distance Aragon

was from Cordova’s truck at the time Aragon fired his weapon. Aragon’s

statements in an interview have the truck at a distance of “10, 15 feet” or

“probably five, seven feet if that.” (Id. at 204-05.) Cordova’s expert calculated

11
Attachment A is a map showing the path of the entire chase with markers
depicting the points at which significant events occurred.
12
Attachment B is a closer look at the portion of I-76 on which the chase
occurred, again with markers depicting the points at which significant events occurred.
13
The majority’s use of 30 mph comes from a description of speeds in the initial
stages of the pursuit on 104th Avenue. Cordova was travelling faster in the last
seconds before his final encounter with Aragon. Nance said in his police interview
Cordova was going “[f]orty” or “[m]aybe 50” miles per hour during the chase on I-76.
(R. Appellants’ App. Vol. I at 237.) Aragon’s estimate was about the same in his sworn
affidavit. But in another interview, he stated: “[Cordova was going] probably 50,
maybe 60” miles per hour on I-76. (Id. at 202; see also id. at 88 (“As the truck came
toward me, traveling at around 50 or 60 miles an hour . . . .”).) For these purposes the
lower estimated speed of 40 miles per hour is used because it most favors Cordova.

-7-
Aragon to be at least 13 feet from the path of Cordova’s vehicle. I accept the

version related by Cordova’s expert.

There is also a very minor discrepancy regarding the time between the first

and last shot. It could be as little as .75 seconds or as much as 1.03 seconds;

hardly a matter of constitutional significance. 14

II. Constitutional Analysis

Excessive force claims are analyzed under the Fourth Amendment’s

objective reasonableness standard, Graham v. Connor, 490 U.S. 386, 388 (1989),

informed by the totality of the circumstances. Tennessee v. Garner, 471 U.S. 1,

8-9 (1985). “Because the test of reasonableness under the Fourth Amendment is

not capable of precise definition or mechanical application, . . . its proper

application requires careful attention to the facts and circumstances of each

particular case, including the severity of the crime at issue, whether the suspect

poses an immediate threat to the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest by flight.” Graham, 490

U.S. at 396 (citation and quotations omitted).

“The ‘reasonableness’ of a particular use of force must be judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision

of hindsight.” Graham, 490 U.S. at 396 (“Not every push or shove, even if it may

later seem unnecessary in the peace of a judge’s chambers violates the Fourth

Amendment.”) (citation and quotations omitted). “The calculus of
14
Cordova’s expert’s calculations assume his truck travelled 60.5 feet between
the first and fatal shot (at 55 mph). This would mean all four shots were taken in .75
seconds. Assuming Cordova was travelling 40 mph, or 58.66 feet-per-second (fps),
1.03 seconds passed between the first and last shot.

-8-
reasonableness must embody allowance for the fact that police officers are often

forced to make split-second judgments – in circumstances that are tense,

uncertain, and rapidly evolving – about the amount of force that is necessary in a

particular situation.” Id. at 396-97. The majority concludes Aragon’s conduct in

shooting Cordova was unreasonable because Aragon was not in immediate danger

at the moment of the fatal shot and the risk Cordova posed to the general public

did not justify the use of deadly force. That is easy to say from the ivory tower

years after the fact. In any event, the facts do not support either conclusion.

A. Threat to Aragon

The district court concluded the danger to the public justified Aragon’s

acts, therefore no constitutional violation occurred. It went on to say disputed

facts clouded the issue as to whether Aragon was in immediate danger at the time

of the shooting. Therefore, construing the facts in the light most favorable to

Cordova, 15 it assumed Aragon was not in immediate danger at the time of the

shooting. With no analysis the majority accepts that assumption. We may affirm

on any basis supported by the record, even though not relied on by the district

court. Felix v. Lucent Techs., Inc., 387 F.3d 1146, 1163 n.17 (10th Cir. 2004).

We should do so here by critically evaluating the danger to Aragon. That danger,

as well as danger to the public, justifies the shooting.

We review de novo a district court’s summary judgment decision. See

Smith v. Maschner, 899 F.2d 940, 942 (10th Cir. 1990). In doing so, we apply the

same standard as that used by the district court and examine the record to

15
The district court went overboard. It construed more than facts and inferences
favorably to Cordova. We need not repeat that mistake.

-9-
determine whether there are genuine disputes as to material facts and whether the

prevailing party was entitled to judgment as a matter of law. Id. at 942-43. No

facts are “found” in a summary judgment and the district court’s analysis and

conclusions are entitled to no deference. While we view the historical facts in the

light most favorable to the non-moving party, in this case Cordova, we do not

equate argument and allegations with fact. Lawmaster v. Ward, 125 F.3d 1341,

1349 (10th Cir. 1997). The plaintiff, who has the burden of proof in qualified

immunity cases, must show a genuine dispute regarding a material fact before we

construe that fact in his favor. Scott, 550 U.S. at 380. “Where the record taken

as a whole could not lead a rational trier of fact to find for the [party claiming

injury], there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986) (quotations omitted). “[M]etaphysical

doubt as to the material facts” is not enough. Id. at 586.

In examining the undisputed facts of this case, it is clear Aragon felt his

life was in immediate danger at the time of the shooting, as would any reasonable

officer in the same circumstances. Aragon’s words make the case. Neither the

words he used nor the facts related are controverted in this record. As he was

debriefed by his supervising officer at the scene, Aragon was “visibly shaken and

his voice cracked.” (R. Appellants’ App. Vol. II at 270.) Aragon told his

supervisor, “I felt it when [Cordova] passed by me,” which the supervisor

interpreted as meaning Aragon felt the wind disruption created by the truck as it

passed. (Id.) In the police department investigation interview just hours after the

shooting, Aragon stated:

-10-
 I saw him come straight at me . . . . I feared, feared for my life at
that point. Uh drop the stop sticks where they were and uh deployed
my hand gun at that point . . . . [W]hen he’s . . . coming straight at
me . . . . I think I am going to be a hood ornament to this big truck .
. . . I just didn’t feel like I had any other option at that point.

(R. Appellants’ App. Vol. I at 203, 205, 207.) Finally, in a sworn affidavit, he

recounted the final seconds of the incident:

I realized that the truck was too close [to deploy the stop sticks]. It
was bearing down on me, and I feared for my life . . . . I thought he
was going to run me down. I thought I was about to become a hood
ornament on this truck . . . . [T]he truck turned and was coming
straight at me . . . . Knowing that I was in immediate danger, that I
was about to be run over, I fired my weapon . . . . While I was firing
my firearm at the vehicle, I felt that I was in imminent danger of
death – of being run down by this large truck. I stopped firing when
I perceived that the danger had abated. I fired all of the rounds at the
truck in one or two seconds.

(Id. at 88.)

The majority concludes Aragon was not in imminent harm or death because

Cordova’s truck had already passed him when he fired the fatal shot. While the

defendants conceded for purposes of summary judgment that all or part of the

truck had passed Aragon, two telling facts remain undisputed—one second, or

less, passed between the first and final shot and the first shot entered the

windshield, not the driver side window. The shots cannot be parsed in slow

motion but must be considered as an integrated whole. No officer could

recognize within one second and in the midst of a violent confrontation that the

danger prompting the use of force had totally abated. Cordova’s massive truck

and loaded trailer passed so close Aragon “felt it when [Cordova] passed by.”

-11-
(Id. at 220.) As I said in the introduction, if the first shot was justified they all

were justified. The only issue requiring resolution is whether, in the instant it

was made, Aragon’s decision to use deadly force was reasonable. No fact,

inference, or combination thereof available in this record can reasonably lead one

to conclude Aragon’s split-second decision was unreasonable. That is especially

true if, as required, we judge the “particular use of force [] from the perspective

of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight.” Graham, 490 U.S. at 396. The majority is simply wrong in saying

“whatever danger [Aragon] might have perceived had passed by the time he fired

the fatal shot.” (Majority Op. at 5.)

The majority also departs from the required totality of the circumstances

analysis, see Garner, 471 U.S. at 8-9; Lawmaster, 125 F.3d at 1349, by

disregarding dramatic events leading up to the shooting and in failing to balance

the equities. See Scott, 550 U.S. at 383-84 (stating it is appropriate to take into

account not only the individuals whose lives are at danger but their relative

culpability in creating that danger). Scott held there is a difference between

ramming a car and shooting at the fleeing suspect but recognized the appropriate

level of force necessary to end a pursuit will always be tied to the level of danger

the suspect has created. Id. at 383-84 & n.10 (“Culpability is relevant, however,

to the reasonableness of the seizure – to whether preventing possible harm to the

innocent justifies exposing to possible harm the person threatening them.”).

-12-
 Without doubt shooting at Cordova placed him in grave danger. On the

other hand, he used his eight-ton rig to lead a number of officers on a 16-minute

chase on public roadways, disregarded traffic laws, attempted to ram Rubino’s

car, drove on and off the road to avoid capture, endangered the lives of Aragon

and Nance by attempting to ram their police cruiser, drove at Nance until a

weapon was aimed at him, and then drove at Aragon. Collectively, if not

individually, those events would lead any reasonable officer in Aragon’s position

to believe he was in imminent danger, the public was at risk and that risk was

immediate, if not imminent. Cordova, alone, was responsible for the level of

danger that led to his death. In spite of numerous opportunities to simply stop his

truck and submit to the authority of the police he continued to use eight tons of

mass in an attempt to bull his way out of trouble.

Cordova alleges and argues that any threat to Aragon was a creation of his

own making. With minimal analysis the majority accepts his argument as fact. It

is not a fact and it is not a reasonable conclusion flowing from actual facts.

“The reasonableness of Defendants’ actions depends both on whether the

officers were in danger at the precise moment that they used force and on whether

Defendants’ own reckless or deliberate conduct during the seizure unreasonably

created the need to use such force.” Sevier v. City of Lawrence, Kan., 60 F.3d

695, 699 (10th Cir. 1995). The record is clear Aragon did not voluntarily place

himself in the path of Cordova’s truck. He neither forced Cordova to drive at him

-13-
nor jumped into Cordova’s path. Rather, Cordova purposely and voluntarily

“swerved,” or “made an abrupt turn,” in Aragon’s direction. (R. Appellants’ App.

Vol. I at 72 (Zamora stating: “[T]he truck . . . swerved and thrashed about . . . .”),

82 (Nance stating: “The truck then made an abrupt turn and swerved . . . .”).) It

was Cordova, not Aragon, who created the need for deadly force.

While Aragon may have mistakenly believed he could safely deploy the

stop sticks and perhaps did not allow himself enough time to safely do so, the

qualified immunity standard “gives ample room for mistaken judgments,”

protecting “all but the plainly incompetent or those who knowingly violate the

law.” Malley v. Briggs, 475 U.S. 335, 341, 343 (1986); see also Pearson v.

Callahan, --U.S.--, 129 S. Ct. 808, 815 (2009) (the protection of qualified

immunity extends to reasonable mistakes of law, fact, or a combination thereof).

Aragon’s mistaken judgment (if that it be) and his resulting vulnerability does not

make him responsible for the threat Cordova deliberately posed to him, other

officers, and the general public.

An officer may not purposely place himself in harm’s way to justify a

seizure, but an officer need not avoid a confrontation at all costs. See Scott, 550

U.S. at 385-86 (police are not obliged to call off a pursuit simply because the

pursuit may endanger others). Aragon was not required to dive out of the way to

avoid a confrontation caused by Cordova. In Sevier, three officers approached an

allegedly suicidal individual who had threatened no harm to anyone but himself.

-14-
60 F.3d at 698. In response to the officers’ provocation, the individual lunged at

an officer and was shot. Id. The district court determined the officers were not

entitled to summary judgment on qualified immunity grounds because genuine

issues of material facts remained in dispute. Id. at 699. While we concluded we

lacked jurisdiction over the officers’ appeal, we observed the record revealed

some evidence upon which a jury could conclude that the officers acted recklessly

by confronting the victim in the manner they did knowing he was armed and

distraught and without gathering more information on the situation. Id. at 700,

701 n.10. Conversely, in Jiron v. City of Lakewood, we affirmed a grant of

qualified immunity to a police officer who confronted a felony suspect attempting

escape from a closed room with a deadly weapon in hand. 392 F.3d 410, 418

(10th Cir. 2004). We held the officer did not exhibit reckless behavior by

entering the room because avoiding the confrontation “risked the escape of an

armed and agitated suspect into the public and risked a potentially more violent

confrontation.” Id. Jiron distinguished Sevier where a suicidal person posed no

threat to others while in a confined area. Id. at 419. Like the facts of Jiron,

Aragon reasonably stood his ground against a fleeing suspect using deadly force

against him and who had previously shown a propensity to risk harm to others.

B. Threat to the General Public

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 Would the public have been better served had Aragon simply let Cordova

again escape? 16 The Supreme Court has said “no” in similar circumstances. “We

think the police need not have taken that chance [injury to the suspect or others]

and hoped for the best.” Scott, 550 U.S. at 385. The majority is, of course,

correct in weighing the risks of harm to Cordova against the risk of harm to the

public (in addition to the risk of imminent harm to Aragon). Part of the inquiry

must be the immediacy and probability of harm. See id. at 384 (“[I]t is clear . . .

respondent posed an actual and imminent threat . . . .”); see also Graham, 490

U.S. at 396 (“the test of reasonableness . . . requires careful attention to the facts .

. . including . . . whether the suspect poses an immediate threat to the safety of

the officers or others” and “whether he is actively resisting arrest or attempting to

evade arrest”). But there is even more to the test, including but not limited to the

urgency of the situation, the risk to the police, the alternatives available, and the

relative culpability of the actors. Scott, 550 U.S. at 384; Graham, 490 U.S. at

396. The risk to Cordova was, of course, extreme. Shooting at someone, as Scott

points out, is a great deal different from ramming their vehicle. Scott, 550 U.S. at

383. But Scott is not the most analogous application of deadly force the Supreme

Court has recently considered. Another shooting begs consideration.

In Brosseau v. Haugen, a police officer, engaged in the pursuit of a fleeing

suspect, watched him get into a parked vehicle. 543 U.S. 194, 196 (2004). She

14
He earlier escaped containment in the parking lot.

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repeatedly ordered him to exit the vehicle and briefly engaged in a struggle with

him (where she broke the vehicle’s window and hit him in the head with the butt

of her handgun). Id. When he started the vehicle and began pulling away, the

officer shot him in the back. Id. at 196-97. She was never in the path of the

vehicle, had no knowledge of any individuals who were or had been endangered

by the vehicle, and was aware of no imminent threat to others should he be

permitted to flee. Nevertheless, she shot him. Id. at 197. Officer Brosseau said

her use of force was grounded in a fear “for the other officers on foot who she

believed were in the immediate area, and for the occupied vehicles in [the

suspect’s] path and for any other citizens who might be in the area.” Id.

(quotations omitted). The Ninth Circuit reversed a grant of summary judgment,

finding a constitutional violation was clearly established by Garner and Graham.

See Haugen v. Brosseau, 339 F.3d 857, 874 (9th Cir. 2003). The Supreme Court

reversed on narrow grounds. 543 U.S. at 201. The case is more important for

what it did not say than for what it did say. The Court did not say shooting a

fleeing suspect in the back without being able to identify a single person who

could have reasonably been in danger was a constitutional violation. Instead, it

said Garner (involving a youth running away and clearly posing no danger to

anyone) and Graham did not clearly establish the law. Id. at 199. The Court held

Brosseau’s fears for the safety of people who may, or may not, have been in the

area shifted her actions into the “hazy border between excessive and acceptable

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force,” and therefore her actions were not a clearly established constitutional

violation. Id. at 201 (quotations omitted).

Officer Brosseau’s fears for the safety of others were neither as well

articulated nor immediate as Aragon’s. He experienced firsthand being in the

path of Cordova’s truck, knew of other attempted rammings, personally observed

Cordova’s dangerous driving on and off the road, and saw other vehicles on I-

76. 17 The majority should have followed the lead of the Supreme Court and

stopped with a holding of no violation of clearly established law. We are now

unnecessarily committed to a contrary, and in my view, erroneous path.

The majority minimizes the risk Cordova posed to other drivers, saying

there were “[no] other motorists . . . in the vicinity” and Cordova’s actions were

“general dangers” which posed a “risk of future harm [that] was not enough to

justify the near certainty of Mr. Cordova’s death.” (Majority Op. at 13.) Case

15
In footnote 6 the majority faults me for mentioning the other vehicles on
westbound I-76 (supra at 4) claiming they were not referenced in the briefs and we are
not obligated to scour the record in search of facts. We may not be obligated to scour the
record in order to fairly decide a case, but we are not prohibited from doing so. Aragon
referred to other vehicles several times, not just once. I was alerted to his statements from
a record cite in Cordova’s opening brief where he discusses Aragon’s reason for crossing
the median of I-76. (Appellant’s Br. at 8.) The district court said a jury could find
Aragon’s testimony untrustworthy, but we are not bound by that unsupported and
improper conclusion. The district court heard no evidence and could make no findings
(certainly not credibility findings); it looked at the same record we do. The presence of
other vehicles on I-76 is nowhere contradicted in the record and there is no objective
reason to discredit Aragon’s statements about them. Contrary to the majority’s assertions,
we must accept uncontroverted facts even if they are inconvenient — there were other
vehicles on westbound I-76. The majority does not simply construe the factual record in
Cordova’s favor, it assumes facts favorable to his position (and its conclusions).

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law does not require the threat to the general public be immediately recognizable.

Garner said use of deadly force is warranted to prevent escape if the police

officer “has probable cause to believe that the suspect poses a threat of serious

physical harm, either to the officer or to others.” Garner, 471 U.S. at 11. The

Court did not require immediacy of a threat to non-officers. Scott affirmed this

notion when it rejected the injured motorist’s suggestion that an immediate threat

of harm was one of the preconditions set forth in Garner. See Scott, 550 U.S. at

381-82 (“Garner did not establish a magical on/off switch that triggers rigid

preconditions whenever an officer’s actions constitute ‘deadly force.’ [It] was

simply an application of the Fourth Amendment’s ‘reasonableness’ test to the use

of a particular type of force in a particular situation.”) (citation omitted). In

Scott, the police rammed the individual to avoid speculative future injury to other

individuals on the road. The majority described the pursuit as a “Hollywood-style

car chase of the most frightening sort” which placed police and bystanders at

great risk of serious injury. Id. at 380. However, the dissent saw it much

differently, saying “no pedestrians, parked cars, sidewalks, or residences were

visible at any time,” the suspect never lost control of his vehicle, and even

“slowed and waited for the cars traveling in the other direction to pass before

overtaking the car in front of him while using his turn signal to do so.” Id. at

392-93 (Stevens, J. dissenting). The majority determined the risk of letting a

suspect flee into the night because his actions were reckless would create more

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reckless driving by suspects who would know escape was within reach. Id. at

385-86; see also Brosseau, 543 U.S. at 198 (expressly declining to consider use of

deadly force as a constitutional violation).

Like the future danger recognized in Scott, Cordova’s significant risk of

future reckless behavior and dangerousness justified immediate action.

Regardless of the justification provided by the imminent threat to Officer Aragon,

the threat Cordova posed to the general public also provided an independent

justification for the use of deadly force.

Past behavior is the best predictor of future behavior. Cordova’s past

behavior, evident on this record, is clear evidence of a wanton disregard for the

safety of others. Zamora stated Cordova “was willing to place an officer and the

public in danger. The truck had become a deadly weapon.” (R. Appellees’ Supp.

App. at 2.) Rubino “felt [Cordova] had endangered [her] life and was using his

vehicle as a deadly weapon.” (Id. at 3.) To Nance, “it was clear . . . [Cordova]

was extremely dangerous and was using his truck as a deadly weapon . . . . I was

in fear for my life.” (R. Appellants’ App. Vol. I at 81-82.) And Aragon said

Cordova “was bearing down on me, and I feared for my life . . . . I thought I was

about to become a hood ornament on this truck . . . . I felt that I was in imminent

danger of death.” (Id. at 88.) When Aragon crossed the median he was worried

about the “safety of the public that was traveling” after seeing “three or four cars”

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on I-76 and witnessing firsthand Cordova’s dangerous behavior. (Id. at 201.)

These subjective impressions are fully supported in the record.

Cordova had once broken from confinement (in the parking lot) by

aggressive means and was threatening to do so again. The threat Cordova posed

to the public was far from hypothetical. Cordova represented a substantial and

significant risk to anyone he may have met as he proceeded the wrong way up the

I-76 entrance ramp. Apparently no cars were present on the ramp, but Aragon,

being otherwise occupied and with his back to the ramp, cannot reasonably be

charged with such knowledge. Traffic was light in the early-morning hours, but

Aragon saw cars on I-76 during the chase; it was not just speculation for him to

conclude a car could be coming down the entrance ramp. But it is quite

speculative to assume (as the majority suggests) such a car encountering

Cordova’s truck with laden trailer would be able to avoid a collision. And other,

but more remote, dangers were reasonably within the orbit of risk. If Cordova

had again broke confinement and escaped without causing a head on collision on

the ramp, his past behavior strongly suggests what he would do if he were to later

encounter another police car, even one ignorant of his escapades.

Cordova posed “a threat of serious physical harm, either to the officer or

others,” which fully justified Aragon “to prevent escape by using deadly force.”

Weigel v. Broad, 544 F.3d 1143, 1152 (10th Cir. 2008), cert. denied, No. 08-

1128, 2009 WL 631116 (May 18, 2009) (quotations omitted). Certainly he posed

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more than a “general danger[].” (Majority Op. at 13.) The threat Cordova posed

to the public was considerably more evident, more immediate, and more serious

than that presented to Officer Brosseau, who shot a fleeing suspect from behind

before his vehicle even moved. Her act, motivated by fear for other police

officers, occupied vehicles, and even individuals she did not know existed was

not determined to be a constitutional violation Brosseau, 543 U.S. at 197.

Aragon’s less egregious acts deserve no harsher treatment.

There was no constitutional violation here. I would affirm the judgment of

the district court so holding. The district court also entered summary judgment in

favor of the Commerce City Police Department because Aragon committed no

constitutional violation. I would affirm that decision as well, for the same reason.

Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006) (citing City of Los

Angeles v. Heller, 475 U.S. 796, 799 (1986)).

I join the majority in holding 1) Aragon’s acts violated no clearly

established law and 2) the Commerce City Police Department is entitled to

summary judgment. From all else, I dissent.

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