Opinion
Case No. 2:19-cv-00553-RJS-CMR
2020-07-10
ESTATE OF Patrick HARMON Sr.; Patrick Harmon II, as Personal Representative of the Estate of Patrick Harmon Sr. and heir of Patrick Harmon Sr.; Tasha Smith, as heir of Patrick Harmon Sr., Plaintiffs, v. SALT LAKE CITY, a municipality; and Officer Clinton Fox, in his individual capacity, Defendants.
Andrew G. Deiss, Corey Drew Riley, Deiss Law PC, Salt Lake City, UT, Nicholas A. Lutz, Qusair Mohamedbhai, Pro Hac Vice, Rathod Mohamedbhai LLC, Denver, CO, for Plaintiffs. Catherine L. Brabson, David F. Mull, Mark E. Kittrell, Salt Lake City Attorneys Office, Salt Lake City, UT, for Defendants.
Andrew G. Deiss, Corey Drew Riley, Deiss Law PC, Salt Lake City, UT, Nicholas A. Lutz, Qusair Mohamedbhai, Pro Hac Vice, Rathod Mohamedbhai LLC, Denver, CO, for Plaintiffs.
Catherine L. Brabson, David F. Mull, Mark E. Kittrell, Salt Lake City Attorneys Office, Salt Lake City, UT, for Defendants.
MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
ROBERT J. SHELBY, United States Chief District Judge This case arises out of the 2017 shooting of a Black man by a white Salt Lake City police officer. An important question in the case is whether the officer is entitled to qualified immunity under existing law. While the events at issue in this case occurred nearly three years ago, this Memorandum Decision and Order issues in the midst of an important national conversation concerning race and policing. That conversation was brought into sharp focus by the recent death of George Floyd.
Floyd died on May 25, 2020, after officers assigned to the Minneapolis Police Department responded to a 9-1-1 call concerning an alleged attempted forgery in progress. The interactions between those officers and Floyd have been widely reported and are shown on videos viewed millions of times on social media and television. Those events sparked as many as 2,000 protests throughout the United States and around the world. It is estimated that with between 15 million and 26 million participants in the United States alone, the protests were collectively the largest in our nation's history.
Floyd's death came on the heels of numerous high-profile deaths of Black men and women in interactions with police officers in recent years. These events and others carried the Black Lives Matter movement into the mainstream and invigorated discussion and debate on a wide range of issues surrounding law enforcement and race, including calls in some circles to change the qualified immunity laws this court must apply in this ruling.
The court is cognizant of this moment and the context in which it must decide legal questions presented in this case about the shooting death of a Black man by a white Salt Lake City police officer. Because it would be inappropriate to do so, this court expresses no opinion whatsoever about the current protests, movements, counter-movements, opinions, other cases around the country, the wisdom of current qualified immunity laws, or any other matters touching on the important issues we are grappling with as a nation. Rather, as it is required to do in the context of determining qualified immunity, and as it labors to do in every case, the court attempts in this Memorandum Decision and Order to faithfully apply the precedent established by the appellate courts to the specific facts and arguments here presented by the parties.
INTRODUCTION
On August 13, 2017, Salt Lake City police officer Clinton Fox—a white man—shot and killed Patrick Harmon, Sr.—a Black man. The events leading to Harmon's death were captured on body cameras worn by three officers at the scene. The body-cam footage includes seven critical seconds immediately before the shooting. During those chaotic seconds, Officer Fox observed Harmon resist arrest, begin to flee, turn back towards the officers, assault an officer, begin to flee in the opposite direction, again turn back towards the officers, and—according to Officer Fox—pull a knife before suddenly moving towards Officer Fox who was several feet away. When Officer Fox shot Harmon, he believed Harmon was armed with a knife and coming towards him.
Harmon's estate and children bring five claims against Officer Fox and Salt Lake City: (1) a Fourth Amendment excessive force claim against Officer Fox pursuant to 42 U.S.C. § 1983, (2) a municipal liability claim against Salt Lake City pursuant to § 1983, (3) a Fourteenth Amendment Equal Protection claim against both Officer Fox and Salt Lake City pursuant to § 1983, (4) a wrongful death claim under Utah law against Officer Fox, and (5) an Excessive Rigor Clause claim under Utah's constitution against both Officer Fox and Salt Lake City.
See Dkt. 2-1 (Complaint) ¶¶ 134–94.
Defendants move to dismiss all of Plaintiffs’ claims, arguing Officer Fox is entitled to qualified immunity and Plaintiffs cannot separately maintain an action against Salt Lake City if the court concludes Officer Fox did not violate Harmon's constitutional rights.
See Dkt. 12.
The court has carefully reviewed and considered the parties’ filings and received oral argument at a hearing on February 6, 2020. For the reasons explained below, Defendants’ Motion to Dismiss is GRANTED. Plaintiffs’ first and second claims for relief are dismissed with prejudice. Plaintiffs’ third, fourth, and fifth claims for relief are dismissed without prejudice. Plaintiffs may file an amended complaint within 28 days should they wish to attempt to replead the claims dismissed without prejudice.
Dkt. 28.
Dkt. 12.
BACKGROUND
Resolution of Defendants’ Motion to Dismiss largely turns on the evidence the court is permitted to consider at this early stage of the proceedings and the legal standard dictating how the court may consider that evidence. Most notably, Plaintiffs object to the court considering some of Defendants’ exhibits. To clarify how the court determined the relevant facts, the court first outlines below the Federal Rule of Civil Procedure 12(b)(6) standard under which Defendants move to dismiss, then addresses Plaintiffs’ evidentiary objection before finally recounting the facts.
See Dkt. 18 at 4–5.
I. Legal Standard for Rule 12(b)(6) Motions
Defendants move to dismiss Plaintiffs’ claims pursuant to Rule 12(b)(6). Under Rule 12(b)(6), the court will dismiss claims that are inadequately pled – that is, where the complaint fails "to state a claim upon which relief can be granted." To avoid dismissal under this rule, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." In other words, "[t]he allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief." This does not require "detailed factual allegations, but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Indeed, "[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do."
Dkt. 12 at 9–10.
Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quotation marks and citation omitted).
Id. (citation omitted).
Robbins v. Oklahoma , 519 F.3d 1242, 1247 (10th Cir. 2008).
Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quotation marks and citation omitted).
Id. (quotation marks and citation omitted).
While the Rule 12(b)(6) analysis is typically confined to the plausible allegations within the complaint, the court may consider "the attached exhibits and documents incorporated into the complaint by reference." The court may also consider exhibits that are "indisputably authentic," "central to the plaintiff's claim," and "referred to in the complaint." If an exhibit "blatantly contradicts Plaintiff[s]’ version of the events" pled in the complaint, the court may "view[ ] the facts in the light depicted by the [exhibit]."
Commonwealth Prop. Advocates, LLC v. Mortg. Elec. Registration Sys., Inc. , 680 F.3d 1194, 1201 (10th Cir. 2011) (citation omitted).
GFF Corp. v. Associated Wholesale Grocers, Inc. , 130 F.3d 1381, 1384 (10th Cir. 1997) (citations omitted).
Estate of Ronquillo by and through Estate of Sanchez v. City and Cty. of Denver , No. 16-cv-01664-CMA-KMT, 2016 WL 10843787, at *2 (D. Colo. Nov. 17, 2016) (quotation marks and citations omitted), aff'd , 720 F. App'x 434 (10th Cir. 2017) (unpublished).
Scott v. Harris , 550 U.S. 372, 381, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).
Applying these standards, the court "first discard[s] allegations in the complaint that are ‘legal conclusions’ or ‘threadbare’ recitals of the elements of a cause of action, supported by mere conclusory statements." Next, the court "accepts as true the remaining, well-pleaded (that is, plausible, non-conclusory, and non-speculative) factual allegations and construe[s] them in the light most favorable to the plaintiff." But when those well-pleaded factual allegations are "blatantly contradicted" by a properly-considered exhibit, the court relies on the facts depicted by the exhibit.
Soto for Estate of Jimenez v. Bd. of Cty. Comm'rs of Caddo Cty., Okla. , 748 F. App'x 790, 793 (10th Cir. 2018) (unpublished) (brackets omitted) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ).
Id. (citing Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 ).
See Scott , 550 U.S. at 380–81, 127 S.Ct. 1769 ("The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.").
II. Plaintiffs’ Objection
Defendants submitted with their Motion the officers’ body-cam videos showing the events leading to Harmon's death and frame-by-frame excerpts of those videos. Plaintiffs do not object to the court considering the body-cam videos. But Plaintiffs object to the court considering the frame-by-frame excerpts, arguing "[s]uch images can be taken out of context or selected to advance a particular narrative." The court fails to appreciate any material distinction between viewing the body-cam videos and pausing on significant moments, versus viewing frame-by-frame excerpts taken from those same videos. Moreover, Plaintiffs do not argue the frame-by-frame excerpts are "doctored or altered" in any way. Plaintiffs’ objection is OVERRULED. The court will consider both the videos submitted and the frame-by-frame excerpts from those videos.
Dkt. 13, Exs. A–D.
Dkt. 13, Exs. E–H.
The court may consider the officers’ body-cam videos because they are referred to in the Complaint and central to many of Plaintiffs’ claims. See GFF Corp. , 130 F.3d at 1384 ("[I]f a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff's claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss.").
Dkt. 18 at 5.
Scott , 550 U.S. at 378, 127 S.Ct. 1769 ("There are no allegations or indications that this videotape was doctored or altered in any way, nor any contention that what it depicts differs from what actually happened.").
III. Background
Applying the standards above, the court now sets forth the facts relevant to Defendants’ Motion. These facts derive from the well-pleaded allegations in Plaintiffs’ Complaint, and those portions of the body-cam videos and frame-by-frame excerpts that blatantly contradict Plaintiffs’ allegations.
Defendants also submitted a Knife Scene Photos exhibit. See Dkt. 13, Ex. I. Although Plaintiffs do not object to the court considering this exhibit, it is outside the scope of a Rule 12(b)(6) motion because it is not central to the Plaintiffs’ claims and is not referenced in the Complaint. Thus, the court has not considered the Knife Scene Photos in ruling on Defendants’ Motion.
a. The Shooting
On August 13, 2017, Salt Lake City Police Department (SLCPD) Officer Kris Smith stopped Harmon, a Black man, for allegedly riding a bicycle without a red taillight. The stop occurred sometime at night. According to Officer Smith, Harmon initially identified himself with varying and inconsistent names but ultimately volunteered that he likely had an outstanding warrant for his arrest. At some point during this interaction, Officer Smith called for backup and returned to his patrol car to run a warrant check. Harmon calmly waited while Officer Smith ran the warrant check. SLCPD officers Clinton Fox and Scott Robinson later arrived on the scene. Officers Smith, Robinson, and Fox are all white men.
Dkt. 2-1 (Complaint) ¶¶ 19–21; see Dkt. 13-1, Ex. A (Smith Body-cam).
See Dkt. 13-1, Ex. A (Smith Body-cam).
Dkt. 2-1 (Complaint) ¶¶ 22–23.
Id. ¶¶ 23–24.
Id. ¶ 24.
Id. ¶¶ 24–25.
See Dkt. 13-1, Ex. A (Smith Body-cam); see also Dkt. 13-3, Ex. C (Robinson Body-cam).
Officer Smith eventually verified the outstanding warrant Harmon had reported and exclaimed to Officer Fox, "Yes! Excellent." "We're going to go 82, 99, Fox2," indicating the officers should arrest Harmon on the felony warrant. Officer Smith then joined the other two officers, who were standing with Harmon. The officers told Harmon he was going to be arrested and asked him to remove his backpack. Harmon removed his backpack. Officer Smith instructed Harmon to place his hands behind his back, and he complied. Officer Smith and Officer Robinson each held one of Harmon's arms to handcuff them behind his back, and Harmon initially allowed the officers to do this. While this was happening, Officer Fox stood in front and to the right of Harmon.
Dkt. 2-1 (Complaint) ¶ 26. In their Motion, Defendants allege that Harmon's outstanding felony warrant was for an aggravated assault. Dkt. 12 at 20. But Plaintiffs do not make this allegation in their Complaint. And, in the body-cam videos, the officers never define what "We're going to go 82, 99, Fox2" means. Thus, Defendants’ unsworn allegation is outside the scope of a Rule 12(b)(6) motion and provides no basis for the court to treat the Motion as one for summary judgment. Accordingly, this fact is excluded from consideration. See Fed. R. Civ. P. 12(d) ("If, on a motion under Rule 12(b)(6) ... matters outside the pleadings are presented to and not excluded by the court , the motion must be treated as one for summary judgment under Rule 56.") (emphasis added).
Dkt. 2-1 (Complaint) ¶ 27.
Id. ¶ 28.
Id.
Id. ¶ 29.
Id. ¶¶ 30–31.
Id. ¶ 32.
Then everything changed. The following events happened in a span of approximately four seconds. Harmon suddenly broke away from Officers Smith and Robinson without warning before they could apply the handcuffs and Harmon began running north, away from them. All three officers immediately chased Harmon. After running a few feet, Harmon quickly pivoted left onto a sidewalk and turned south back towards the officers. Officer Fox followed closely behind Harmon as he began running south down the sidewalk. Officer Robinson positioned himself directly in Harmon's path and attempted to grab him. While attempting to grab Harmon, Officer Robinson struck him near his head and neck, knocking a cigarette out of Harmon's mouth. Harmon then threw Officer Robinson aside and continued running south along the sidewalk past the officers. Officer Robinson fell towards the ground, but caught himself before continuing to chase Harmon. At the same time Harmon threw Officer Robinson, Officer Fox attempted unsuccessfully to grab Harmon with his left hand. Officer Fox then drew his service firearm with his right hand as Harmon ran by Officer Fox and Officer Smith. To this point in the body-cam videos, nothing is clearly visible in either of Harmon's hands.
Dkt. 13-1, Ex. A (Smith Body-cam) at 8:13–17.
Id. at 8:13–14.
Id. at 8:14–15.
Id. at 8:13–20.
Dkt. 2-1 (Complaint) ¶ 37; Dkt. 13-1, Ex. A (Smith Body-cam) at 8:14–16.
Dkt. 2-1 (Complaint) ¶¶ 38–39.
Id. ¶ 40.
Id. ¶ 41.
Dkt. 13-1, Ex. A (Smith Body-cam) at 8:15–17; Dkt. 13-2, Ex. B (Fox Body-cam) at 1:03–04.
Dkt. 13-1, Ex. A (Smith Body-cam) at 8:16–23; Dkt. 13-2, Ex. B (Fox Body-cam) at 1:03–04.
Dkt. 13-1, Ex. A (Smith Body-cam) at 8:15–16.
Id.
Dkt. 2-1 (Complaint) ¶ 44.
The following events occurred in a span of approximately the next three seconds. Officer Fox pursued Harmon with his gun drawn, Officer Smith drew his Taser and ran after Harmon, and Officer Robinson recovered from his near fall and resumed chasing Harmon. As Harmon ran from the officers, he turned his body and head to the left, back towards the pursuing officers and began side-stepping away from them. Although Harmon was still moving in a direction away from the officers, he was no longer running. While doing this, he brought both of his hands together at chest height. Harmon's left arm dropped back down after his hands came together, but his right arm remained bent at the elbow and at chest height. Harmon then slightly crouched and started back towards the officers with his right arm bent and raised to his chest. Officer Fox was closest to Harmon—approximately five to seven feet from him—when Harmon suddenly changed direction back towards the officers. Officer Fox then shot Harmon three times while yelling, "I'll [expletive] shoot you!" The first two shots hit Harmon's torso, while the third shot entered his right leg, injuring his femoral artery and vein.
Dkt. 13-1, Ex. A (Smith Body-cam) at 8:17–20.
Dkt. 2-1 (Complaint) ¶ 47.
Id. ¶ 51; Dkt. 13-1, Ex. A (Smith Body-cam) at 8:17–20.
Dkt. 13-1, Ex. A (Smith Body-cam) at 8:16–23.
Id. at 8:17–18.
Id.
Id. at 8:18–19. Plaintiffs allege that "[a]t no point in the bodycam footage can Harmon be seen [ ] using both hands to open a folding knife." Dkt. 2-1 (Complaint) ¶ 124. Although the body-cam videos do not clearly show Harmon opening a folding knife, they unmistakably show him bringing his hands together at chest height. Dkt. 13-1, Ex. A (Smith Body-cam) at 8:18–19.
Id.
Id. The body-cam videos blatantly contradict Plaintiffs’ allegation that "[a]t no point in their interaction did Harmon come back at the officers." Dkt. 2-1 (Complaint) ¶ 103. In fact, the body-cam videos show Harmon came back at the officers two times during the confrontation. Harmon first came back at the officers when he stopped running north, turned south, and ran back through the officers. See Dkt. 13-1, Ex. A (Smith Body-cam) at 8:14–16. And Harmon came back at the officers a second time when he stopped running south and turned back north towards the pursuing officers with his right hand raised. See id. at 8:17–19; see also Dkt. 2-1 (Complaint) at 17–19 (showing pictures of Harmon turning towards the officers with his feet pointing towards the officers and his right arm raised).
Dkt. 13-1, Ex. A (Smith Body-cam) at 8:19–20.
Id. at 8:19–21; Dkt. 13-2, Ex. B (Fox Body-cam) at 1:04–08.
Dkt. 2-1 (Complaint) ¶ 87.
At about the same time Officer Fox shot Harmon, Officer Smith fired his Taser, hitting Harmon in the chest. Except for Officer Fox's yelling, no officer issued any commands or warnings to Harmon before Officer Fox shot him. Harmon did not audibly threaten the officers during this incident and was unarmed when he was shot.
Dkt. 2-1 (Complaint) ¶ 54.
Dkt. 13-3, Ex. C (Robinson Body-cam) at 2:20–25.
Dkt. 2-1 (Complaint) ¶¶ 56–57.
Id. ¶ 58. The court accepts Plaintiffs’ allegations concerning what was and was not said during the seven seconds leading to the shooting because the allegations are not blatantly contradicted by the body-cam videos’ audio. See Bryner v. Utah , 429 F. App'x 739, 746 (10th Cir. 2011) (unpublished) ("Since there is no sound, we must accept Mr. Bryner's allegation that he was verbally berated by Deputy Rowley for not complying with the clerk's request that he go to the first floor to file his documents.").
Dkt. 2-1 (Complaint) ¶ 141.
Upon being shot, Harmon immediately fell to the ground, and the officers appeared to be in a state of shock. Officer Smith then stated into his radio, "Priority, shots fired. Start medical." Without drawing his firearm, Officer Robinson approached Harmon, who was lying face-down on the ground. Neither Officer Fox nor Officer Smith warned Officer Robinson that Harmon had a knife or that Officer Robinson should look for or secure a knife. Officer Robinson said, "okay, cover him [inaudible]," as Officer Fox kept his gun trained on Harmon and replied, "I got him." Officer Robinson did not search the area or Harmon's hands or clothing for a knife or other weapons. As Officer Robinson reached to handcuff Harmon, a knife was on the ground next to Harmon's right hand. Officer Robinson did not report to Officer Fox or Officer Smith that he found a knife. Although the officers later claimed a knife was recovered near where Harmon had fallen, Officer Robinson did not secure a knife while approaching Harmon.
Dkt. 2-1 (Complaint) ¶ 55.
Id. ¶ 59.
Id. ¶ 60.
Id. ¶¶ 61–62.
Id. ¶¶ 64–65.
Dkt. 13-1, Ex. A (Smith Body-cam) at 8:27–29; Dkt. 13-2, Ex. B (Fox Body-cam) at 1:14–15.
Dkt. 2-1 (Complaint) ¶¶ 66–68.
Dkt 13-3, Ex. C (Robinson Body-cam) at 1:33–35. The court accepts Plaintiffs’ allegation that Harmon was unarmed when he was shot because the officers’ body-cam videos do not blatantly contradict it. It is unclear from the videos whether Harmon ever had a knife in his hand before he was shot. Although it is reasonable to infer that the knife found next to Harmon was the knife he allegedly pulled on the officers, the court may not draw this inference in Defendants’ favor at this procedural stage of the proceedings. See Soto , 748 F. App'x at 793.
Dkt. 2-1 (Complaint) ¶ 69.
Id. ¶ 70.
Officer Smith then approached Harmon, who began screaming in pain but otherwise remained still. Officer Robinson handcuffed Harmon and examined his body for gunshot wounds. Officer Robinson instructed Harmon to roll onto his left side, but Harmon could not because he was incapacitated. Officer Robinson rolled Harmon onto his side and back, revealing a large blood stain on the back of Harmon's pants, above his left buttock, as Harmon was hemorrhaging blood from his right thigh. Officer Fox told the other officers he was going to get gloves and ran to his car. Officer Smith began removing Harmon's pants by pulling them down. When Officer Fox returned from his car, he began cutting Harmon's clothing off with a knife.
Id. ¶ 63.
Id. ¶¶ 71–74.
Id. ¶¶ 75–76.
Id. ¶ 76.
Id. ¶¶ 79–80.
Id. ¶ 78.
Id. ¶ 83.
Id. ¶ 82.
At this point, other SLCPD officers arrived. Officer Robinson and one of the other officers had the following exchange:
Id. ¶ 85.
Unnamed Officer: Any evidence that we're looking to --
Officer Robinson: There was a knife somewhere.
Unnamed Officer: [Inaudible]
Officer Robinson: Yeah [inaudible] he pulled out the knife.
Dkt. 13-3, Ex. C (Robinson Body-cam) at 3:55–4:03.
Harmon was pronounced dead just after midnight.
Dkt. 2-1 (Complaint) ¶ 86.
b. The SLCPD Investigation
After the shooting, the SLCPD conducted an internal investigation during which Officer Fox provided a recorded interview. In it, Officer Fox repeatedly stated that he shot and killed Harmon because he reached for and produced a knife. Specifically, Officer Fox stated, "As soon as [Harmon] started running, both of his hands went to his right pocket. The moment he started going for the pocket, and I don't remember exactly what he said but I remember it was to the effect of, ‘You'll get cut,’ ‘I'm gonna cut you’ or something. I know that I heard it. I know that I processed it." Officer Fox also stated, "And I can't remember but I think, I think [Officer Smith] was telling [Harmon] to stop."
Id. ¶¶ 90–91.
Id. ¶ 92.
Id. ¶ 93.
Id. ¶ 96.
Officer Fox described his perspective of the moments after Harmon pushed past Officer Robinson: "I see what [Harmon is] doing, I see his hands are going for his right pocket still" and "the entire time the guy is running, I can see him going for that right pocket." Officer Fox continued: "When [Harmon] broke direction and he started going [n]orth on the sidewalk again, he was still going for that pocket." Prior to shooting Harmon, Officer Fox claimed Harmon "stopped, turned, and came back at [the officers]."
Id. ¶¶ 98–99.
Id. ¶ 100.
Id. ¶ 102 (brackets omitted).
When Officer Fox was asked why he chose to shoot, he answered:
When he first started going in his pocket, and again, I don't remember exactly what he said but I know it was to the effect of ‘I'll cut you’ or ‘You're going to get cut,’ he said something to that effect, I immediately believed that he was going for a weapon and it was most likely going to come out as a knife. At that point I knew that was a lethal weapon, and every bit of my training from post to until – we actually had a lineup training that day and the sergeant had watched – had us watch a video and it was the video of the officer in South Carolina where he was confronting the guy and he drew a TASER, the guy ended up having a gun and we had talked about never leading into a situation where if there could be a potential for lethal force that we use a less lethal weapon.
Id. ¶ 107.
Officer Fox reiterated how his training impacted his decision to draw his gun on Harmon, "through every bit of training you don't respond to a knife or a lethal weapon with a less lethal option. So, that's why I drew my gun."
Id. ¶ 108 (brackets omitted).
Plaintiffs seem to contend the body-cam videos disprove the recorded statements made by Officer Fox. Specifically, Plaintiffs allege that none of the body-cam videos show Harmon reaching for his right pocket. Plaintiffs further allege Harmon can be heard in none of the body-cam videos making any statement about cutting Officer Fox. Because these additional allegations are not blatantly contradicted by the body-cam video, the court accepts them as true for purposes of the Rule 12(b)(6) analysis below. As it must, the court also views these facts at this stage in the light most favorable to Plaintiffs.
Id . at ¶ 94.
Id . at ¶ 95.
But to the extent Plaintiffs invite the further negative inference that Officer Fox was untruthful in his statements – because the things he reported cannot clearly be seen or heard on the body-cam videos – that negative inference lacks support in the videos. During the seven seconds between Harmon breaking away from the officers and Officer Fox shooting him, the body-cam videos obviously do not capture everything that occurred. Specifically, the audio in the videos is largely obscured and muffled by sounds caused by the officers chasing Harmon. The images on the videos are often blurred and shaky during the critical moments as the officers are moving very quickly and the nighttime lighting is often poor.
See Dkt. 13-1, Ex. A (Smith body-cam); Dkt. 13-2, Ex. B (Fox body-cam); Dkt. 13-3, Ex. C (Robinson body-cam).
In any event, the veracity of the post-shooting statements made by Officer Fox is immaterial under the objective reasonableness standard the court is required to apply when evaluating the totality of the circumstances as Plaintiffs allege and the body-cams depict under the Graham factors described below. As noted throughout this ruling, the court assumes for purposes of resolving Defendants’ motion that Harmon was unarmed at the time Officer Fox shot him.
c. SLCPD's History of Race-based Policing and Use of Force
In January 2016, the SLCPD settled a lawsuit that alleged the SLCPD had engaged in a racially-motivated gang sweep of a local high school, exclusively targeting and arresting Latino, African-American, and Pacific Islander students. That settlement includes a requirement that "SLCPD officers shall not use race, color, ethnicity, or national origin in exercising discretion to conduct warrantless stop or search, or to seek a warrant."
Id. ¶ 131.
Id.
SLCPD officers have a history of shooting people. In August 2014, an SLCPD officer shot and killed Dylan Taylor, an unarmed 20-year old. In January 2015, an SLCPD officer shot and killed James Barker, in part because he was armed with a snow shovel. In February 2016, an SLCPD officer shot and paralyzed a seventeen-year-old who had been carrying a mop handle. In 2018, police shot seven people in Salt Lake County, including four people of color. All three fatal police shootings in Salt Lake County in 2018 involved people of color.
Id. ¶ 126–30.
Id. ¶ 129. The Complaint makes no allegation concerning Taylor's race. Id.
Id. ¶ 130. The Complaint makes no allegation concerning Barker's race. Id.
Id. ¶ 132. The Complaint makes no allegation concerning the seventeen-year-old's race. Id.
Id. ¶ 126.
Id. ¶ 127.
d. Procedural History
Plaintiffs commenced this civil action against Defendants in Utah state court in July 2019, asserting five causes of action against Officer Fox and Salt Lake City. First, under 42 U.S.C. § 1983, Plaintiffs claim Officer Fox used excessive force against Harmon in violation of the Fourth Amendment. Second, Plaintiffs claim Salt Lake City, as a municipality, is liable for Officer Fox's use of excessive force under § 1983. Third, again relying on § 1983, Plaintiffs claim both Defendants violated Harmon's right to equal protection under the Fourteenth Amendment. Fourth, Plaintiffs claim Officer Fox wrongfully caused Harmon's death under Utah law. And fifth, Plaintiffs claim both Defendants violated the Excessive Rigor Clause of the Utah Constitution.
Dkt. 2 at 2.
See Dkt. 2-1 (Complaint) ¶¶ 134–94.
Id. ¶¶ 134–50.
Id. ¶¶ 151–68.
Id. ¶¶ 169–80.
Id. ¶¶ 181–88.
Id. ¶¶ 189–94.
Shortly after Plaintiffs filed their state court Complaint, Defendants removed the action to this court and moved to dismiss Plaintiffs’ claims. In their Motion, Defendants invoke Rule 12(b)(6) to argue Officer Fox is entitled to qualified immunity on Plaintiffs’ Fourth Amendment claim and that Plaintiffs have failed to plead a plausible Fourteenth Amendment claim against Officer Fox. Defendants argue the claims against Salt Lake City should be dismissed because Plaintiffs cannot maintain claims against Salt Lake City if the underlying claims against Officer Fox are dismissed. Lastly, Defendants argue the court should decline to exercise supplemental jurisdiction over Plaintiffs’ remaining state-law claims if the federal claims are dismissed.
See Dkt. 2.
See Dkt. 12.
Id . at 10.
See id. at 20.
See id. at 21.
ANALYSIS
A municipality may not be liable if one of its officers has not committed an "underlying constitutional violation." Because Plaintiffs’ federal claims against Salt Lake City depend on their constitutional claims against Officer Fox, the court first addresses the claims against him. Next, the court turns to Plaintiffs’ claims against Salt Lake City. Finally, the court addresses Plaintiffs’ Utah state law claims against Defendants.
Hinton v. City of Elwood , 997 F.2d 774, 782 (10th Cir. 1993) (citations omitted).
I. Plaintiffs’ Fourth Amendment Excessive Force Claim Against Officer Fox
a. Legal Standard for Qualified Immunity
Officer Fox argues he is entitled to qualified immunity on Plaintiffs’ Fourth Amendment claim in which Plaintiffs allege he used excessive force against Harmon. An "[i]ndividual defendant[ ] named in a § 1983 action may raise a defense of qualified immunity, which shields public officials from damages actions unless their conduct was unreasonable in light of clearly established law." This defense "not only protects public employees from liability, but also protects them from the burdens of litigation." "Although qualified immunity defenses are typically resolved at the summary judgment stage, district courts may grant motions to dismiss on the basis of qualified immunity."
Dkt. 12 at 10–19.
Dkt. 2-1 (Complaint) ¶ 139.
Doe v. Woodard , 912 F.3d 1278, 1289 (10th Cir. 2019) (citation omitted).
A.M. v. Holmes , 830 F.3d 1123, 1134 (10th Cir. 2016) (brackets and citation omitted).
Thomas v. Kaven , 765 F.3d 1183, 1194 (10th Cir. 2014).
At the motion to dismiss stage, qualified immunity is subject "to a more challenging standard of review than would apply on summary judgment" because "it is the defendant's conduct as alleged in the complaint that is scrutinized for objective legal reasonableness." Nevertheless, the court applies "the same [ Rule 12(b)(6) ] standard in evaluating dismissal in qualified immunity cases as to dismissals generally."
Id. (citations omitted).
Behrens v. Pelletier , 516 U.S. 299, 309, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996).
Robbins , 519 F.3d at 1249 (citation omitted).
When a defendant asserts qualified immunity, "the plaintiff bears a heavy two-part burden." First, the plaintiff must plausibly allege that "the defendant's actions violated a constitutional or statutory right." Second, the plaintiff must demonstrate "that the right was clearly established at the time of the conduct at issue." In other words, to overcome qualified immunity at the motion to dismiss stage, "plaintiffs must [1] allege facts sufficient to show (assuming they are true) that the defendants plausibly violated their constitutional rights, and [2] that those rights were clearly established at the time." "[I]f the plaintiff fails to establish either prong of the two-pronged qualified immunity standard, the defendant prevails on the defense," and "the court must grant the defendant qualified immunity."
Thomas , 765 F.3d at 1194 (quotation marks and citation omitted).
Id. (citation omitted).
Id. (quotation marks and citation omitted).
Robbins , 519 F.3d at 1249.
A.M. , 830 F.3d at 1134–35 (citations omitted).
Medina v. Cram , 252 F.3d 1124, 1128 (10th Cir. 2001) (citation omitted).
The court may decide "which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Here, the court begins with the first prong of qualified immunity—whether Plaintiffs have pleaded a plausible constitutional violation against Officer Fox. Because the court concludes that Plaintiffs fail to plead a plausible excessive force claim against Officer Fox, the court will not reach the "clearly established" prong of qualified immunity.
Pearson v. Callahan , 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).
b. Plaintiffs Have Not Pled a Plausible Constitutional Violation
The Fourth Amendment "guarantees citizens the right to be secure in their persons ... against unreasonable ... seizures." "[T]he use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment." Under the Fourth Amendment, an officer's use of deadly force is constitutional "if a reasonable officer in the defendant's position would have had probable cause to believe that there was a threat of serious physical harm to themselves or to others." Indeed, "[a]n officer's use of deadly force in self-defense is not constitutionally unreasonable," and "[a] reasonable officer need not await the glint of steel before taking self-protective action; by then, it is often ... too late." Accordingly, "[a] reasonable perception of imminent danger, even if mistaken, may be consistent with the reasonable use of deadly force."
Graham v. Connor , 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (ellipses in original) (quotation marks omitted).
Tennessee v. Garner , 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985).
Jiron v. City of Lakewood , 392 F.3d 410, 415 (10th Cir. 2004) (citation omitted).
Romero v. Bd. of Cty. Comm'rs of Cty. of Lake, State of Colo. , 60 F.3d 702, 704 (10th Cir. 1995) (citation omitted).
Estate of Larsen ex rel. Sturdivan v. Murr , 511 F.3d 1255, 1260 (10th Cir. 2008) (quotation marks and citation omitted).
Estate of Ronquillo by and through Estate of Sanchez v. City and Cty. of Denver , 720 F. App'x 434, 439 (10th Cir. 2017) (unpublished) (citation omitted).
The reasonableness of an officer's use of deadly force "depends both on whether the [officer was] in danger at the precise moment that [he] used force and on whether [the officer's] own reckless or deliberate conduct during the seizure unreasonably created the need to use such force." The officer's conduct is "judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." The court views the officer's conduct from the "on-scene perspective" because 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."
Sevier v. City of Lawrence, Kan. , 60 F.3d 695, 699 (10th Cir. 1995) (citations omitted). Plaintiffs allege in the Complaint that Officer Fox "created the need for deadly force ... through his own reckless, deliberate conduct." Dkt. 2-1 (Complaint) ¶¶ 144–145. Plaintiffs do not, however, assert this argument in their response to Defendants’ Motion. See Dkt. 18. Therefore, the court does not address this argument other than to note the body-cam videos blatantly contradict any allegation that Officer Fox recklessly or deliberately created the need for deadly force during his encounter with Harmon.
Estate of Larsen , 511 F.3d at 1259 (citation omitted).
Id. at 1259–60 (citation omitted).
To assess the reasonableness of an officer's use of deadly force, "courts are to consider the totality of the circumstances" and "pay careful attention to the facts and circumstances of the particular case." In Graham v. Connor , the Supreme Court identified three non-exclusive factors to consider as part of this analysis: "[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight." The court "analyze[s] these factors at the precise moment that the officer used force." Importantly, this analysis enjoys "no bright line rules" and "in the end the inquiry is always whether, from the perspective of a reasonable officer on the scene, the totality of the circumstances justified the use of force."
Jiron , 392 F.3d at 414 (citation omitted).
Sevier , 60 F.3d at 699 (quotation marks, brackets, and citation omitted).
Graham , 490 U.S. at 396, 109 S.Ct. 1865 (citation omitted).
Ronquillo , 720 F. App'x at 438 (citation omitted).
Estate of Larsen , 511 F.3d at 1260, 1262 (citation omitted).
Defendants argue the Graham factors justify Officer Fox's use of deadly force. Plaintiffs do not address in their response the first and third Graham factors. Instead, they focus on the second factor, arguing that Officer Fox could not have reasonably perceived Harmon to be an immediate threat. Carefully considering the totality of the circumstances, including each Graham factor, the court concludes Officer Fox's use of deadly force was legally objectively reasonable.
Dkt. 12 at 14–18.
Dkt. 18 at 8–10.
Id. at 9–10.
i. The Severity of Harmon's Crimes
The first Graham factor—the severity of Harmon's crimes—modestly supports Officer Fox's use of force. In evaluating this factor, the court may consider any criminal act that occurs during the police-citizen encounter and is not limited to only considering the crime that caused the encounter. Generally, violent or felony crimes support an officer using more force than would be reasonable for nonviolent crimes or crimes classified as misdemeanors or less.
See Clark v. Bowcutt , 675 F. App'x 799, 807 (10th Cir. 2017) (unpublished) (including in its analysis of the first Graham factor the citizen's initial crime—public urination—and his subsequent offense—fleeing from a traffic stop.).
See id. ("Felonies are deemed more severe.") (citation omitted); see also Casey v. City of Fed. Heights , 509 F.3d 1278, 1281 (10th Cir. 2007) ("Officer Sweet was faced with somebody who had committed a misdemeanor in a particularly harmless manner, which reduces the level of force that was reasonable for him to use."); Ronquillo , 720 F. App'x at 438 (weighing the first Graham factor in favor of the citizen even though he had committed a felony because none of his "alleged crimes were accompanied by violence.").
At the time Officer Fox shot Harmon, a reasonable officer on the scene would know Harmon was wanted on a felony warrant and could have believed Harmon committed a nonviolent infraction in addition to two misdemeanors. Initially, Officer Smith stopped Harmon for riding a bicycle without a red taillight—a nonviolent infraction. Shortly after the stop, Officer Smith discovered Harmon was wanted on an outstanding felony warrant and shared that information with Officer Fox. When the officers tried to arrest Harmon, he broke away and fled—a class B misdemeanor. Instead of continuing to flee, however, Harmon turned back towards the officers and assaulted Officer Robinson by throwing him to the ground—a class A misdemeanor. Although Harmon's initial crime would not justify much, if any, force to effectuate a seizure, a reasonable officer under the circumstances could determine additional force was necessary to seize an individual with an outstanding felony warrant who assaulted an officer in an attempt to evade arrest.
Salt Lake City, Utah, Code §§ 12.80.065 and 12.80.200.
Dkt. 2-1 (Complaint) ¶ 26.
Id. § 76-5-102.4(2)(a).
These criminal acts alone would not justify the use of deadly force. See Garner , 471 U.S. at 9–12, 105 S.Ct. 1694.
ii. A Reasonable Officer Could Have Believed Harmon Posed a Serious and Immediate Threat to Officer Fox
The second Graham factor—the immediate threat Harmon posed to the officers—strongly supports Officer Fox's use of deadly force. The Tenth Circuit has established four non-exclusive factors for assessing the threat posed to officers during an encounter: "(1) whether the officers ordered the suspect to drop his weapon, and the suspect's compliance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions of the suspect." Here, the first factor weighs in Plaintiffs’ favor, while the remaining three factors support the conclusion that Harmon posed a serious and immediate threat to Officer Fox.
Estate of Larsen , 511 F.3d at 1260 (citations omitted).
First, accepting as true Plaintiffs’ well-pleaded allegations, the officers never ordered Harmon to drop a weapon. Thus, he never had the opportunity to comply, and a reasonable officer could not have perceived this as a threat.
Defendants argue Harmon failed to comply with the officers’ attempt to arrest him and, as a result, this factor favors Officer Fox's use of force. Dkt. 12 at 16. But these facts are more relevant to the third Graham factor, where the court addresses them.
Plaintiffs argue the second factor weighs in their favor because Harmon was unarmed. But the relevant inquiry here is not whether Harmon was armed, "the relevant question here is whether the officers acted reasonably in light of the mistaken perception that [Harmon]" was armed with a knife. The court finds they did.
Dkt. 18 at 8–10.
Estate of Smart by Smart v. City of Wichita , 951 F.3d 1161, 1171 (10th Cir. 2020).
Specifically, the second time Harmon turned back toward the officers, a reasonable officer could have perceived Harmon's actions as hostile motions with a weapon directed at Officer Fox. After throwing Officer Robinson, Harmon ran a few steps before turning back towards the officers. He then stopped running, looked back at the officers, and began to side-shuffle away from them. While side-shuffling, Harmon's hands came together in front of his chest. His left hand then dropped down, but his right arm and hand stayed raised at his chest in a manner a reasonable officer could view as a threatening, stabbing stance. With his arm still raised and his body slightly crouched, Harmon started back towards Officer Fox, who was only approximately five to seven feet from Harmon. All of this happened at great speed in a matter of seconds. Officer Fox shot Harmon at the moment he started back towards the officers because, according to Officer Fox, Harmon had a knife and was coming back at them. Although the court assumes for purposes of resolving the Motion to Dismiss that Officer Fox was mistaken in believing Harmon had a knife, that belief was not unreasonable. Indeed, these facts—all of which occurred in approximately three seconds—support the conclusion that a reasonable officer could have believed Harmon had a knife and was attempting to harm Officer Fox.
Dkt. 13-1, Ex. A (Smith Body-cam) at 8:16–19.
Id. at 8:17–20.
Id.
Id.
Id. at 18–19.
Id. at 19–21.
Dkt. 2-1 (Complaint) ¶¶ 92, 102.
See Thomas v. Durastanti , 607 F.3d 655, 666 (10th Cir. 2010) ("Although Agent Durastanti's reasonable perceptions are what matters, he had mere seconds to react, and his actions in firing the first couple of shots were reasonable, even if mistaken. An officer may be found to have acted reasonably even if he has a mistaken belief as to the facts establishing the existence of exigent circumstances.") (citations omitted).
Third, the distance between Officer Fox and Harmon—approximately five to seven feet—was short enough that Officer Fox could have reasonably believed Harmon posed an immediate threat. The body-cam videos show how quickly Harmon moved throughout the seven critical seconds, establishing that he could close the gap between himself and Officer Fox in a moment.
Fourth, although Harmon never verbally threatened the officers, he physically assaulted Officer Robinson while attempting to evade arrest. Thus, Harmon demonstrated his intention to fight the officers if necessary, rather than be apprehended.
Estate of Larsen , 511 F.3d at 1260 ("Indeed, even if an officer reasonably, but mistakenly, believed that a suspect was likely to fight back ... the officer would be justified in using more force than in fact was needed.") (ellipses in original) (quotation marks, brackets, and citation omitted).
In sum, a reasonable officer confronted with the events Officer Fox faced could have believed Harmon posed a serious and immediate threat to the officers. Although the body-cam videos did not capture everything that occurred with perfect clarity, "it is nevertheless readily apparent to [the court] from examining the video[s] that [Harmon] posed an immediate threat to [Officer Fox's] safety."
Clark , 675 F. App'x at 808.
iii. Harmon was Resisting Arrest
The third Graham factor—whether Harmon was "actively resisting arrest"—also favors immunity for Officer Fox's decision to use deadly force. From the moment Harmon broke free of the officers attempting to handcuff him to the moment Officer Fox shot him, Harmon was actively resisting arrest. And, contrary to Plaintiffs’ allegations, the body-cam videos clearly show Harmon was not merely fleeing from the officers when he was shot. Instead, the videos show Harmon turned back towards the officers (a second time) while side-stepping away from them, his hands came together in front of his chest, and his right arm remained raised at chest height as he came back at Officer Fox.
Graham , 490 U.S. at 396, 109 S.Ct. 1865 (citation omitted).
See Dkt. 13-1, Ex. A (Smith Body-cam) at 8:13–20.
See Dkt 2-1 (Complaint) ¶ 50; see also Dkt. 18 at 9–10.
Dkt. 13-1, Ex. A (Smith Body-cam) at 8:17–20.
Id.
"The calculus of 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"—the very circumstances Officer Fox faced. After carefully weighing the totality of these circumstances, the court concludes a reasonable officer in Officer Fox's position could believe Harmon posed an immediate threat of serious physical harm. Accordingly, Officer Fox's use of deadly force was legally justified, and Officer Fox is entitled to qualified immunity on Plaintiffs’ Fourth Amendment violation claim. The claim is dismissed with prejudice.
Graham , 490 U.S. at 396–97, 109 S.Ct. 1865.
II. Plaintiffs’ Fourteenth Amendment Claim Against Officer Fox
"[E]ven if the actions of the police are acceptable under the Fourth Amendment," they may nevertheless violate the Equal Protection Clause of the Fourteenth Amendment, which "commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the law." Racially selective law enforcement violates the Equal Protection Clause. To state a racially selective law enforcement claim, Plaintiffs must plausibly allege "that [Officer Fox's] actions [1] had a discriminatory effect and [2] were motivated by a discriminatory purpose."
Marshall v. Columbia Lea Reg'l Hosp. , 345 F.3d 1157, 1166 (10th Cir. 2003).
City of Cleburne v. Cleburne Living Ctr. , 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (citation omitted).
Marshall , 345 F.3d at 1166–67.
Id. at 1168 (citation omitted).
Defendants do not challenge the sufficiency of Plaintiffs’ allegations concerning the discriminatory effect of Officer Fox's actions. Instead, they argue Plaintiffs’ Equal Protection claim should be dismissed because Plaintiffs fail to sufficiently allege that Officer Fox's decision to shoot Harmon was motivated by a discriminatory purpose. The court agrees.
See Dkt. 12 at 20 (arguing only that Plaintiffs fail to state a cognizable Equal Protection claim because they fail to allege that Officer Fox's decision to shoot Harmon was motivated by racial animus).
Id.
To establish a discriminatory purpose, Plaintiffs must allege "that discriminatory intent was a motivating factor" in Officer Fox's decision to shoot Harmon. Parties generally rely on "direct evidence of police motivation" or "statistical comparisons" to show discriminatory intent. Plaintiffs here do not rely on any direct evidence to allege that Officer Fox shot Harmon because of his race. Instead, they argue that their conclusory allegations are supported by sufficient statistical and historical data concerning SLCPD's "record of racially biased policing" and "use of deadly force" to establish discriminatory purpose. Plaintiffs’ allegations are legally insufficient.
United States v. Alcaraz-Arellano , 441 F.3d 1252, 1264 (10th Cir. 2006) (quotation marks and citation omitted).
Marshall , 345 F.3d at 1168.
Dkt. 18 at 12–13.
First, Plaintiffs make in their Complaint only two direct allegations that Officer Fox's decision to shoot Harmon was motivated by discriminatory intent: (1) Harmon was Black and Officer Fox was white, and (2) "Harmon's race was a substantial motivating factor in Defendant Fox's decision to use excessive force against him." Without more, the first allegation does not "support an inference of racial animus." And the second allegation is merely a legal conclusion that the court may not consider at this Rule 12(b)(6) stage.
Dkt. 2-1 (Complaint) ¶ 176.
Green v. Corr. Corp. of America , 401 F. App'x 371, 376 (10th Cir. 2010) (unpublished) ("Mere differences in race do not, by themselves, support an inference of racial animus.") (citations omitted).
See Iqbal , 556 U.S. at 678–79, 129 S.Ct. 1937 ; see also Requena v. Roberts , 893 F.3d 1195, 1210 (10th Cir. 2018) ("Requena's general allegations of racial animus and discriminatory intent are too vague and conclusory to state a claim.").
Second, racially selective law enforcement claims "draw on what the Supreme Court has called ‘ordinary equal protection standards.’ " One of those standards is that Plaintiffs have the burden of "prov[ing] that the decisionmakers in [their] case acted with discriminatory purpose." In other words, the relevant inquiry is whether Officer Fox acted with discriminatory intent, not whether other officers in the SLCPD or Salt Lake County act with discriminatory intent.
Marshall , 345 F.3d at 1168 (citation omitted).
McCleskey v. Kemp , 481 U.S. 279, 292, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987).
See United States v. Coleman , 483 F. App'x 419, 420–21 (10th Cir. 2012) (unpublished) ("... the statistics are of no help to Mr. Coleman. No help because to prove an Equal Protection claim he must prove that the decisionmakers in his case acted with discriminatory purpose.... And the statistics he asks us to take notice of do not even purport to speak to that question, saying nothing one way or the other about the practices of the undisputed decision maker in this case, Officer Alvarez.").
None of Plaintiffs’ statistical or historical allegations relate to or even mention Officer Fox. Plaintiffs do not allege that Officer Fox was involved in the "racially motivated gang sweep of a local high school" or the subsequent legal settlement. They do not allege that Officer Fox was involved in the shootings between police and "people of color" in 2018. They do not allege that Officer Fox was involved in any of the "high-profile examples" that are "indicative of the culture of ... racially charged police tactics." And Plaintiffs never explain how their statistical allegation—"[i]n a city that is just 2.7% Black, SLCPD used force against Black persons in 13.1% of all use of force incidents between January 2017 and December 2018"—relates in any way to Officer Fox. Therefore, Plaintiffs’ statistical and historical allegations are irrelevant to the question presented and provide no indication that Officer Fox acted with discriminatory intent when he shot Harmon.
See Dkt. 2-1 (Complaint) ¶¶ 125–133, 169–80.
Id. ¶ 131.
Id. ¶¶ 126–27.
Id. ¶¶ 129–30, 132–33.
See id. ¶ 175; Dkt. 18 at 12–13. Further, Plaintiffs never explain how their statistics satisfy the Tenth Circuit's framework for analyzing statistics’ impact on the discriminatory purpose inquiry. See Marshall , 345 F.3d at 1168 (explaining that statistics can indicate a discriminatory purpose when they include "a reliable measure of the demographics of the relevant population, ... a means of telling whether the data represent similarly situated individuals, ... and a point of comparison to the actual incidence of crime among different racial or ethnic segments of the population.") (citations omitted).
See Blackwell v. Strain , 496 F. App'x 836, 841 (10th Cir. 2012) (unpublished) (concluding that statistical data was irrelevant when it concerned a police department as a whole, rather than the conduct of the defendant police officer); Coleman , 483 F. App'x at 421 (concluding "it would be a gross misuse of statistical data to extrapolate about Officer Alvarez's conduct in particular merely from aggregate data that covers many other individuals.") (citation omitted).
At bottom, Plaintiffs have failed to state an actionable Equal Protection claim against Officer Fox. This claim is dismissed without prejudice.
III. Plaintiffs’ Fourth and Fourteenth Amendment Claims Against Salt Lake City Necessarily Fail
"[T]o establish municipal liability, a plaintiff must show 1) the existence of a municipal policy or custom, and 2) that there is a direct causal link between the policy or custom and the injury alleged." But "[a] municipality may not be held liable where there was no underlying constitutional violation by any of its officers." Because the court concludes Officer Fox violated neither the Fourth Amendment nor the Fourteenth Amendment, Plaintiffs cannot maintain independent municipal liability claims against Salt Lake City. Accordingly, Plaintiffs’ second cause of action is dismissed with prejudice, and Plaintiffs’ third cause of action is dismissed without prejudice.
Hinton , 997 F.2d at 782 (citation omitted).
Id. (citations omitted).
IV. Plaintiffs’ State Law Claims
"Under 28 U.S.C. § 1367(c)(3), the district court may decline to exercise supplemental jurisdiction over state-law claims if it has dismissed all claims over which it has original jurisdiction." "Indeed, [the Tenth Circuit has] directed courts that they should usually do so in these circumstances." As explained above, the court has dismissed all of Plaintiffs’ federal claims. Accordingly, the court declines to exercise supplemental jurisdiction over Plaintiffs’ remaining state-law claims and dismisses them without prejudice.
Phan v. Colo. Legal Servs. , 769 F. App'x 520, 527 (10th Cir. 2019) (unpublished) (quotation marks omitted).
Id. (citing Koch v. City of Del City , 660 F.3d 1228, 1248 (10th Cir. 2011)).
CONCLUSION
Defendants’ Motion to Dismiss is GRANTED as follows:
Dkt. 12.
• Plaintiffs’ First Claim for Relief is dismissed with prejudice;
• Plaintiffs’ Second Claim for Relief is dismissed with prejudice;
• Plaintiffs’ Third Claim for Relief is dismissed without prejudice;
• Plaintiffs’ Fourth Claim for Relief is dismissed without prejudice; and
• Plaintiffs’ Fifth Claim for Relief is dismissed without prejudice.
Plaintiffs may file an amended complaint within 28 days should they wish to attempt to replead the claims dismissed without prejudice. If an amended complaint is not received within that time period, the court will close the case.
SO ORDERED this 10th day of July 2020.