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Andersen v. DelCore.

No. 22-1130. 8/18/2023. D.Colo. Judge Ebel. Suspected Child Abuse—Excessive Use of Force—Summary Judgment—Qualified Immunity.

August 18, 2023

Colorado Springs Police Department (CSPD) officers responded to a call from a hospital regarding suspected child abuse involving the 19-month-old daughter of Andersen and his fiancée Hiteshaw. Andersen and Hiteshaw were uncooperative with hospital staff and the CSPD officers, but another family member eventually told an officer a vague story about the child being hit by a car in an area within the Teller County Sheriff’s Office’s (TCSO) jurisdiction. TCSO Detective Matarazzo was summoned to the hospital and learned that Hiteshaw had been texting a friend about the child’s injuries, and he asked her about those messages. Hiteshaw denied sending such messages, and Detective Matarazzo insisted that she give him her cell phone to prevent her from deleting any text messages. Andersen took the phone from Hiteshaw and refused to hand it over. Detective Matarazzo then summoned CSPD officers DelCore, Eckert, and Sandoval to help him obtain the phone. The three officers entered the hospital room, and Officer DelCore attempted to take the cell phone from Andersen’s back pocket. Andersen evaded him by jumping back, and Officer Eckert intervened, suggesting they discuss the matter, but Andersen refused, asserting that the officers had no right to take the cell phone. Officers DelCore and Eckert continued to engage back and forth with Andersen unsuccessfully. Ultimately, Officer DelCore tased Andersen twice, and officers then handcuffed him and led him from the room. Andersen was subsequently charged with obstruction and resisting arrest, but both charges were dropped. Andersen sued the three officers, Detective Matarazzo, Colorado Springs, and Teller County, asserting various claims under 42 USC § 1983. At summary judgment, the district court dismissed all claims except for an excessive force claim against Officer DelCore. The district court then denied qualified immunity to Officer DelCore.

On appeal, Officer DelCore argued that the summary judgment record shows that he did not use excessive force against Andersen, so he is entitled to qualified immunity. The Tenth Circuit determined that it had jurisdiction to address Officer DelCore’s interlocutory appeal because he challenged only the district court’s legal conclusion that he used excessive force against Andersen, based on the facts found by the district court. The Tenth Circuit analyzed the use of force according to the factors in Graham v. Connor, 490 U.S. 386 (1989): (1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting or attempting to evade arrest. Here, the record shows that Officer DelCore grabbed Andersen’s arm as part of the officers’ efforts to secure Hiteshaw’s cell phone—a key item in their investigation of the serious crime of child abuse—and that he later tased Andersen twice. Even though the officers’ initial objective was accomplished when Officer Eckert seized the cell phone from Andersen’s back pocket moments after Officer DelCore grabbed his arm, Andersen strenuously resisted arrest and posed a threat to officer safety. Under these circumstances, Officer DelCore reasonably used his taser to subdue Andersen and to obtain control over the situation. Therefore, Officer DelCore did not violate Andersen’s Fourth Amendment right to be free from excessive force, and Officer DelCore is entitled to qualified immunity.

The order denying summary judgment was reversed and the case was remanded with instructions to enter judgment in favor of Officer DelCore.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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