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Flores v. Henderson.

No. 23-1049. 5/14/2024. D.Colo. Judge Tymkovich. Fourth Amendment—Denial of Qualified Immunity—Interlocutory Jurisdiction—Summary Judgment—Reckless Creation of Need to Use Deadly Force—Unreasonable Failure to Intervene to Prevent Violation of Constitutional Right.

May 14, 2024

Jackson called 911 to report that he was inside an apartment where he was holding people hostage and that two of the hostages were already dead. Jackson described the situation as a life-threatening emergency, stating that his remaining hostages only had a few minutes left. When police officers arrived at the scene, they encountered Jackson’s sister at the apartment door in no apparent distress. She said her brother was home but did not know whether anyone inside the apartment was hurt. As the officers began to search Jackson’s apartment, they received a radio call that the sister believed Jackson was alone, was unarmed, and might have mental health problems. Officers advanced in a line down a hallway to the back bedroom from which Jackson emerged and moved toward the officers with a machete. Officer Henderson shot and killed Jackson. His parents sued the officers under 42 USC § 1983 alleging that Officer Henderson used excessive force in violation of the Fourth Amendment and that Officers Matthews, Hannon, and Orchard failed to intervene to prevent the deprivation of Jackson’s rights. The district court denied the officers’ motion for summary judgment based on qualified immunity, concluding that a reasonable jury could find that the officers recklessly created the need to use deadly force, which was an unreasonable violation of Jackson’s constitutional rights under clearly established law.

On appeal, Jackson’s parents argued that the Tenth Circuit lacked jurisdiction because the district court’s denial of summary judgment was based on a disputed issue of material fact. Generally, the Tenth Circuit has interlocutory jurisdiction over denials of qualified immunity at the summary judgment stage to the extent that they turn on an issue of law. However, when the record clearly contradicts the version of events that the district court holds a reasonable jury could credit, the Tenth Circuit may assess the case based on de novo review of which facts a reasonable jury could accept as true. This exception to the general rule usually applies to cases involving objective documentary evidence, such as video recordings or photographs. Here, the Tenth Circuit assessed video evidence in the form of bodycam footage and audio, which contradicts the district court’s conclusion that the officers were aware there were no hostages because they had entered Jackson’s bedroom before the shooting. Rather, bodycam footage shows that officers remained in the hallway, and they never entered into nor saw inside the bedroom. Officer Henderson tried to kick the bedroom door open, but someone inside seemed to block it, and within seconds, Jackson rushed from the bedroom and moved toward the officers with a machete in hand. Given that some of the key facts underlying the district court’s denial of qualified immunity are inconsistent with the video evidence, the Tenth Circuit had jurisdiction over the appeal.

On the merits, the officers challenged district court’s conclusions that Officer Henderson recklessly created the need to use deadly force in violation of clearly established law and that the other three officers unreasonably failed to intervene to prevent a violation of Jackson’s constitutional rights. The Tenth Circuit assessed the Fourth Amendment claims under the three-part Graham v. Connor, 490 U.S. 386, 396 (1989), totality of the circumstances test and concluded that (1) Jackson’s self-reported crime was serious if true; (2) Jackson, who refused to comply with police commands to come out and show his hands and then charged at the officers with a machete, posed an immediate threat to the safety of the officers or others; and (3) Jackson was resisting a reasonable investigative detention by refusing to come out, telling officers they would have to come and get him, blocking his bedroom door when the officer tried to open it, and advancing toward the officers with a machete in hand. Given the totality of the circumstances, Officer Henderson’s decision to proceed down the hallway was reasonable, and a reasonable officer in Henderson’s position would have felt justified in taking the steps that led to the use of deadly force. Further, even assuming that Officer Henderson used excessive force in these circumstances, neither the district court nor Jackson’s parents identified precedent determining a Fourth Amendment violation occurred under similar circumstances, so the law was not clearly established at the time of the events. And there can be no failure to intervene unless an underlying clearly established constitutional violation exists, which was not the case here. Accordingly, the officers are entitled to qualified immunity.

The denial of qualified immunity was reversed.

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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