Estate of George v. City of Rifle

85 F.4th 1300

ESTATE OF Allan GEORGE, by and through its personal representative Sarra George; Sarra George, individually; Kenneth Allan George, individually; Nicole Lynn Wallace, individually; M.E.G., a minor, by and through their legal guardian Sarra George; T.A.G. a minor, by and through their legal guardian Sarra George, Plaintiffs-Appellees, v. CITY OF RIFLE, COLORADO, a municipality; Dewey Ryan, Police Corporal, in his individual capacity; Tommy Klein, Police Chief, in his individual capacity, Defendants-Appellants.

No. 22-1355

United States Court of Appeals, Tenth Circuit

FILED November 9, 2023

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:20-CV-00522-CNS-GPG)

Eric M. Ziporin (Jonathan N. Eddy, with him on the briefs), SGR, LLC, Denver, Colorado, appearing for Appellants.

David A. Lane (Darold W. Killmer, Liana G. Orshan, and Reid R. Allison, with him on the brief), Killmer, Lane & Newman, LLP, Denver, Colorado, appearing for Appellees.

Before ROSSMAN, KELLY, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

The plaintiffs in this case, which include the estate and surviving family members of Allan Thomas George, filed this 42 U.S.C. § 1983 action against the City of Rifle, Colorado (the City), Tommy Klein, the chief of the Rifle Police Department (RPD), and Dewey Ryan, a corporal with RPD, alleging that the defendants violated George's Fourth Amendment rights by employing excessive and deadly force against him in the course of attempting to arrest him on a felony warrant. Plaintiffs also asserted a Colorado state law claim of battery causing wrongful death against Ryan.

Defendants moved for summary judgment with respect to all of the claims asserted against them. Defendants Ryan and Klein asserted, in particular, that they were entitled to qualified immunity from the § 1983 excessive force claim. The district court denied defendants' motion in its entirety. Defendants have now filed an interlocutory appeal challenging the district court's ruling. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reverse and remand with directions to enter summary judgment in favor of defendants as to all of the plaintiffs' claims.¹

I

Factual history

The facts of this case are, in large part, undisputed. In 2009, George, a Colorado resident, pleaded guilty in the District Court of Lake County, Colorado, to one count of Sexual Exploitation of a Child, in violation of Colo. Rev. Stat. § 18-6-403, a class five felony. George was placed on probation and was required to register as a sex offender for four years. George successfully completed the terms and conditions of his sentence. As a result, his original felony case was dismissed and no felony conviction entered.

On April 10, 2019, a Federal Bureau of Investigation (FBI) Child Exploitation and Human Trafficking Task Force reported that during a recent criminal investigation of suspected illegal possession and distribution of child pornography by individuals using "Kik Messenger," a "cross-platform mobile application used for instant messaging," George, who at that time was a resident of Rifle, Colorado, was positively identified as an active participant in those illegal activities. Aplt. App., Vol. I at 112. Following the Task Force's report, a local FBI agent and an investigator with the 9th Judicial District Attorney's Office in Colorado performed a follow-up investigation into George's activities, including obtaining and executing search warrants for George's home. As a result, they determined George to be in possession of pornographic and/or sexually exploitive images of children.

On June 20, 2019, the same day the search warrants were executed at George's home in Rifle, Colorado, law enforcement officers personally contacted George at a construction site in Vail, Colorado. When law enforcement officers informed George of the investigation, he told them he "knew it was wrong," but that he "explored several groups on Kik" looking for images of child pornography. Id. at 113.

At some point after June 20, 2019, George's wife, Sarra George (Sarra), left Colorado with George's two minor children and traveled to another state. Sarra informed multiple people, including members of George's family, that George was being criminally investigated for possessing child pornography.

On July 12, 2019, George purchased a.45 caliber handgun from a licensed firearms dealer. Because George's 2009 Colorado state felony conviction had been dismissed, the background check that the firearms dealer ran did not reveal anything that would disqualify George from purchasing the firearm.

On or about July 30, 2019, Sarra contacted the RPD and requested what the RPD classified as a "welfare check" due to a "suicidal party" at George's residence in Rifle. Id. Sarra, who was still out of state, informed the RPD that George was being investigated for child pornography and had recently made suicidal statements to her. Sarra also informed the police that George had recently purchased a gun and had told her "that he was not 'going back to jail without a fight.'" Id. The information that Sarra conveyed on the phone call to the RPD was in turn conveyed to RPD officers during a "pass-down," which "is a routine beneficial practice" that "occurs at the end of each shift so that officers from a previous shift can update and inform other officers of critical information at the time such other officers take over a follow-on subsequent shift." Id.

On August 5, 2019, a judge in the 9th Judicial District in Colorado determined that there was probable cause to conclude that George committed the criminal offense of sexual exploitation of a child, in violation of Colo. Rev. Stat. § 18-6-403, and, as a result, issued a warrant for George's arrest. That same day, officers from the Vail Police Department attempted to contact George at his jobsite to make the arrest. George's supervisor informed the officers that George failed to show up for work that day.

On the afternoon of August 5, 2019, officers from the RPD visited George's residence and spoke with Sarra. Sarra told the officers that George had a firearm that he carried at work and at home, and that he recently returned from a trip out of state. Sarra also told the officers that George recently told her that he was "not going to be a sex offender" and "wasn't going to jail." Id. Sarra told the officers that she interpreted these statements to mean that George would not be arrested without a fight. In addition, Sarra told the officers that, while she was out of state, George had installed a video surveillance camera at their home that fed video directly to his cell phone and would allow him to observe visitors approaching the residence.

At approximately 6 p.m. on August 5, 2019, a dayshift RPD officer who was concluding her shift conducted a "pass-down" of information to Corporal Dewey Ryan (Ryan) and Officer Shelby McNeal (McNeal), the two (and only) officers who were scheduled for that evening's night shift. Id. at 83, 92, 114. This "pass-down" included "the information regarding the arrest warrant for ... George and the statements relayed to law enforcement earlier that day by" his wife. Id. at 114. "At or near the time of this pass-down, Corporal Ryan and Officer McNeal both viewed a photograph of ... George." Id. Ryan subsequently obtained a copy of the arrest warrant and reviewed it.

Based upon the information they received during the pass-down, Ryan and McNeal decided to conduct a felony traffic stop if George returned to Rifle that evening, rather than waiting for him to return to his residence. Accordingly, Ryan and McNeal each drove their own marked patrol cars and parked at the intersection of I-70 and Colorado State Highway 13.² To the south of that intersection lies a small portion of the City of Rifle, comprised mostly of businesses. To the north of that intersection lies the main portion of the City of Rifle.

At approximately 7:11 p.m. that evening, Ryan observed a white Ford F-150 truck exit from I-70 westbound at Exit 90. The truck, which was clearly marked with the name of the company where George worked, matched the description of George's truck given to law enforcement by his wife. Ryan was also able to positively identify George as the driver of the truck.

Upon positively identifying George, both Ryan and McNeal activated the emergency lights on their patrol vehicles and positioned their vehicles directly behind George's truck as soon as he exited I-70 and turned northward onto Colorado State Highway 13. Within seconds, George pulled his truck to the side of the road and stopped approximately 200 yards from the offramp. When stopped, George's truck was on a bridge that spans the Colorado River, which is commonly referred to as the "River Bridge." Id. at 25, 84. Ryan parked his patrol vehicle approximately five to ten yards behind George's truck and McNeal parked her patrol vehicle less than five to ten yards from Ryan's vehicle.

Ryan retrieved his patrol rifle, got out of his patrol vehicle, and stood in the gap between his open driver's-side door and the main vehicle frame of his patrol vehicle. Ryan then began giving loud verbal commands to George to place his hands outside of the driver's side window of his truck. George used his driver's side mirror several times to look directly at Ryan, but did not place his hands outside of his truck as directed by Ryan. George then, without being directed to do so by Ryan, got out of his truck and walked towards the rear of his truck and Ryan's vehicle. Although Ryan ordered George "to stop walking toward" Ryan's vehicle "and return to his" truck, George ignored those commands. Id. at 85. While he was walking towards the back of his truck and the front of Ryan's vehicle, George reached behind his back and retrieved a handgun. Ryan could see that George's handgun had an extended magazine that provided for a larger capacity of ammunition.

George,...