Case 1:16-cv-01664-CMA-KMT Document 37 Filed 09/19/16 USDC Colorado Page 1 of 26

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-1664-CMA-KMT
ESTATE OF RYAN RONQUILLO, et al.,
Plaintiff,
v.
CITY AND COUNTY OF DENVER; et al.,
Defendants.
______________________________________________________________________
PLAINTIFFS RESPONSE TO DENVER DEFENDANTS MOTION TO DISMISS WITH
REQUEST FOR HEARING
______________________________________________________________________
Plaintiffs, through counsel, Holland, Holland Edwards & Grossman, P.C.,
respond to Denver Defendants Motion to Dismiss (Doc. 21) as follows:
I. INTRODUCTION
At the time these Defendants assaulted and then killed Ryan Ronquillo, he was
sitting in his car about to go back into a funeral to grieve the death of his friend, to the
awareness of at least several of the officers. He was suspected only of non-violent
property crimes -- stealing low value old cars.1 He was just 20 years old. He was then
threatening no one. Law enforcement had been following him for hours during which he
had done nothing wrong, he had not been aggressive or driven dangerously. By police
admissions, he was unarmed.

1
It appears from Defendants Ex. 1 that he was suspected of taking stereos and the like
as he allegedly leaves the cars with minor damage and was not fencing them. One of
the charges alleges that when a female owner approached him, he left immediately
without any response and was obviously non-violent.

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There were absolutely no exigent circumstances until these Defendants created

them. Even if commands had been given, Mr. Ronquillo was given no reasonable or
sufficient opportunity to comply. See 2-6, 30- 36, 47- 54 and especially 73-106
and 133-1352. Of course, it is difficult to comply when being punched in the face.3
If the police had stuck to their plan to land him out of his car, he was easily
arrested by these officers after he got out of his car. But, rather than employ
constitutional tactics, Defendants did exactly what they are trained, instructed and
encouraged to do. They did not wait for him or give him even the slightest opportunity to
surrender. They acted like a school of frenzying piranhas, attacking Ryan Ronquillo
putting him in fear of imminent death or severe bodily injury.
As police punched him repeatedly in the face and head, smashed his car
windows and tried to grab him, Ryan Ronquillo did what most normal humans would do
-- he tried to defend himself by getting away. 1, 2-3, 24-27, 29-40, 91, 133-1354, 3945. He backed up and Defendants opened fire on a moving vehicle, rather than just
moving out of the way, killing a 20 year old over for property crimes.
Since Tennessee v. Garner, 471 U.S. 1, 8 (1985) it is plain that reasonableness
depends on not only when a seizure is made, but also how it is carried out. And, since
1993, the 10th Circuit has repeatedly held that [t]he reasonableness of the use of
force depends not only on whether the officers were in danger at the precise

2
Paragraph references throughout this pleading are to the Complaint.
3
As Mike Tyson has famously explained: Everybody has a plan until they get punched
in the mouth.
4
He had also not previously driven his car aggressively in any way as was the case in
several of the below discussed inapposite cases Defendants cite, discussed below.

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moment that they used force, but also on whether the officers own reckless or
deliberate conduct during the seizure unreasonably created the need to use such
force. Jiron v City of Lakewood, 392 F.3d 410, 415 (10th Cir 2004) (quoting Sevier v.
City of Lawrence, Kan., 60 F.3d 695, 699 (10th Cir.1995). (Emphasis added.)
Plaintiffs have sufficiently alleged that the City of Denver and these individual
Defendants violated Ryan Ronquillos constitutional rights and this Court, like Courts
everywhere, should reject Defendants attempt to apply a heightened pleading standard.
II. STANDARD OF REVIEW
Defendants Motion advances various litigation arguments, impermissibly
disputes Plaintiffs factual allegations and drawn inferences, and repeatedly argues for
more benign interpretations of the damaging evidence against them. The courts
function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties
might present at trial, but to assess whether the plaintiffs Complaint alone is legally
sufficient to state a claim for which relief may be granted. Dubbs v. Head Start, Inc.,
336 F.3d 1194, 1201 (10th Cir.2003).
A dismissal for failure to state a claim under Rule 12(b)(6) is only appropriate
when it is apparent that a Plaintiff can prove no set of facts which would entitle him to
relief. Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir.2003). There is a
strong presumption against entry of judgment against a plaintiff or dismissal of a claim.
Cottrell, Ltd. v. Biotrol Intl, Inc., 191 F.3d 1248, 1251 (10th Cir.1999). Dismissal should
be denied unless the complaint, viewed in the light most favorable to plaintiff, lacks
enough facts to state a claim to relief that is plausible on its face. U.S. ex rel. Conner

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v. Salina Regl Health Ctr., Inc., 543 F.3d 1211, 1217 (10th Cir. 2008). A claim is
plausible on its face if the complaint contains sufficient facts for a court to draw an
inference that the defendant is liable. Ashcroft v. Iqbal, 556 U.S. 662 (2009).
The plausibility standard requires that relief must plausibly follow from the facts
alleged, not that the facts themselves be plausible. Notably, Twombly did not alter the
bedrock principle that a judge ruling on a motion to dismiss must accept all allegations
as true and may not dismiss on the ground that it appears unlikely the allegations can
be proven, nor did it require a showing that the facts are likely to be true simply
because a defendant asserts qualified immunity. Robbins v. Oklahoma, 519 F.3d 1242,
1247 (10th Cir. 2008). 5 Here, while Defendants impermissibly inject countervailing
inferences, Plaintiffs have pled extensive facts in support their claims, from which all
reasonably plausible inferences must be drawn and accepted in their favor.
III. PLAINTIFFS HAVE PLED EXCESSIVE FORCE AGAINST THE INDIVIDUAL
DEFENDANTS
Plaintiffs must allege that officers used objectively excessive amounts of force in
light of the facts and circumstances confronting them. Casey v. City of Federal Heights,
509 F.3d 1278 (10th Cir. 2007). The allegations must include that the officers were
objectively unreasonable, under the totality of the circumstances. Graham v. Conner,

5
Although this Court may consider attached documents that explicitly contradict mere
conclusory facts alleged by Plaintiff, it may not impose its own analysis and
characterization of what such documents tend to prove at this stage. Rather, the Court
must accept all the well-pleaded allegations of the complaint as true and must construe
them in the light most favorable to the plaintiff. Alvarado v. KOBTV, L.L.C., 493 F.3d
1210, 1215 (10th Cir. 2007). When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief. Iqbal, 556 U.S. at 679.

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490 U.S. 386 (1989). Plaintiff must also show that the law violated by the
unconstitutional conduct was clearly established. The relevant, dispositive inquiry in
determining whether a right is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted. Holland
v. Harrington, 268 F.3d 1179, 1186 (10thCir.2001). As the Tenth Circuit has explained:
This reasonableness standardwhich is clearly established for the purposes
of 1983 actionsimplores the court to consider factors including the alleged
crimes severity, the degree of potential threat that the suspect poses to an
officers safety and to others safety, and the suspects efforts to resist or evade
arrest. Because the reasonableness inquiry overlaps with the qualified immunity
analysis, a qualified immunity defense is of less value when raised in defense of
an excessive force claim. Whether an officer acted reasonably in using
deadly force is heavily fact dependent.
Olsen v. Layton Hills Mall, 213 F.3d 1304, 1313-14. (Emphasis supplied).
The 10th Circuits most recent explication of the long clearly established law
applicable to this cases facts is cogently set forth in Pauly v. White, where officers were
held liable for recklessness and deliberate conduct prior to the shooting:
In determining whether an officers use of force was excessive, many [of our]
cases have focused solely on the three factors specifically described in
Graham. Id. (citing Casey v. City of Fed. Heights, 509 F.3d 1278, 1281 (10th
Cir.2007)). However, these three factors were not intended to be exclusive,
and the circumstances of a particular case may require the consideration of
additional factors. Id.
814 F.3d 1060, 1070-71 (10th Cir. 2016).6
Thus, the Court added at this same page, emphases supplied, that:
In addition, we have held that [t]he reasonableness of the use of force
depends not only on whether the officers were in danger at the precise
moment that they used force, but also on whether the officers own
reckless or deliberate conduct during the seizure unreasonably created

6
The Court in Pauly also discusses the clearly established law at pages 1074-76.

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the need to use such force. To be sure, we consider an officers

conduct prior to the suspects threat of force if the conduct is
immediately connected to the suspects threat of force.
Id., internal citations omitted. As the 10th Circuit also held in Allen, in an incident that
was 90 seconds long, emphasis supplied:
The excessive force inquiry includes not only the officers actions at the moment
that the threat was presented, but also may include their actions in the
moments leading up to the suspects threat of force . . . as we stated in Sevier:
[t]he 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. We will thus
consider an officers conduct prior to the suspects threat of force if the conduct
is immediately connected to the suspects threat of force.
119 F.3d at 841-842, (internal citations omitted).
The officers here put themselves in danger, not the other way around. Just as in
in Allen, a reasonable jury could conclude on the basis of some of the testimony
presented that the officers actions were reckless and precipitated the need to use
deadly force. Id. In the poignant mental illness case of Hastings v. Barnes, 252
Fed.Appx. 197, 203-205 (10th Cir 2007) the Court found held that their review convinced
them that whether Barnes and Davis actions unreasonably precipitated their need to
use deadly force calls for a jury determination A reasonable jury could find that under
these facts Barnes and Davis actions unreasonably escalated the situation to the point
deadly force was required. As to preceding officer misconduct, the Court held that we
conclude the unreasonableness of Barnes and Davis actions was clearly established by

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Allen and Sevier. Id.7

Plaintiffs here have alleged that Defendants use of lethal force was objectively
unreasonable under the totality of the circumstances, which included their own reckless
creation of the situation in which deadly force was supposedly required.
IV. DEFENDANTS MOTION ASSERTS DEFENDANTS LITIGATION POSITION
REGARDING THE FACTS AND SEEKS INFERENCES DRAWN IN THEIR FAVOR
Plaintiffs detailed complaint puts Defendants on ample notice of the
constitutional violations alleged and clearly states a claim for excessive force in the
attack and shooting. Defendants motion impermissibly disputes Plaintiffs facts, seeks
inferences drawn in their favor, and asserts their own conclusion about what happened.
Plaintiffs allege that Defendants conduct recklessly precipitated the use of deadly force
Plaintiffs allege, and Defendants ignore, that the video of this death shows,
starting at 17:59:49, that at the time multiple officers began attacking Ronquillo he was
not being aggressive. His alleged preceding criminal conduct which the Defendants
attach to their motion, apparently in an attempt to bias, are bereft of any allegations that
Ronquillo was violent in allegedly stealing cars. Over 20 officers, many in unmarked
cars and plain clothes recklessly abandoned their plan to arrest him outside his car,
approaching him in his car as they formed the front wedge with two vehicles.
This collective group assault, as described in 77-1048 began with multiple

7
See also, Medina v. Cram, 252 F.3d 1124, 1132 (10th Cir.2001)(In addition to
considering whether the officers reasonably believed they were in danger at the time
they used force, a Court must determine whether [officers] own reckless or deliberate
conduct during the seizure unreasonably created the need to use such force.)
8
Where, as here, the facts show that: (1) all Defendants actively and jointly
participated in the use of force, and (2) even if a single deputys participation did not

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officers, including Defendants Bell, Ingersoll, and Sandoval, indisputably running

immediately up to Ryan Ronquillo and assaulting him. The assault is partially shown
starting in Defendants Ex. 2 at 17:59:49.
Defendant Sandoval admits he grabbed Ronquillos shirt collar, ripped off his
Broncos lanyard, punched him repeatedly in the face and head, and was assisted by
Defendants Bell and Ingersoll who were all hitting him, grabbing at him, or trying to do
so, including smashing the car. 87-92. This excessive use of force began without
affording any opportunity to surrender. Multiple witnesses including, Defendant Trujillo,
state that he was not given any commands to put his hands up or exit his vehicle.9 This
was all before Ryan Ronquillo began moving his car backward. 158, 86-92.
Defendant Trujillo, the first shooter, is also alleged to have recklessly failed to
block in Mr. Ronquillos vehicle from the back as part of the reckless tactics employed
and then also recklessly positioned herself in the cars path. Collectively, the tactics
employed violated well-trod high risk/felony stop protocols, evidencing reckless training.

constitute excessive force, that deputy could be liable under a failure-to-intervene
theory. Estate of Booker v. Gomez, 745 F.3d 405, 421-23 (10th Cir. 2014). The Booker
court noted that all Defendants actively participated in a coordinated use of force, and
that [i]f excessive force occurred, all deputies contributed to it. Id. at 422. This
unconstitutional death was also a group effort. See 45-59, 61, 86-91, 93, 95, 99-102,
111-117 describing the coordinated efforts of many officers. Defendants all jointly
participated in or supported the assault and and/or failed to stop the excessive force.
9
Defendant Trujillo, who was at ground zero, has sworn she did not hear any officers
give him any commands. 75. See also the witness reports of no commands,
importantly alleged in 69, 72, and 74. Defendants repeatedly argue that whether
Ryan Ronquillo knew they were police or after him is irrelevant as objective
reasonableness is evaluated from the police officers perspective. While the
reasonableness of the officers perceptions is judged from their perspective, the totality
of the circumstances analysis of these closely related actions includes the recklessness
of the assault, to which the lack of commands or announcements is directly relevant.

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At the Time of the Shooting There Also Was No Threat to Anyone.

Defendants also push their own interpretation of the danger perceived by
Officers. Plaintiffs allege that, because of her positioning, there was accidental contact
between Defendant Trujillo and Ryan Ronquillo when he backed up in highly
foreseeable self-defense10 while she continued to come towards his vehicle, but that
she was not in danger at the time she fired on Mr. Ronquillo.
When four Defendant members of this police squad executed him, Ryan
Ronquillo was not then presenting an actual and imminent threat to the lives of any
officers or civilians. His accidental contact with Defendant Trujillo had passed. Before
this contagion shooting all the Defendants were in safe positions (except from shooting
each other), being to the sides of the vehicle on the perimeter. Defendant Trujillo was
by then safely to the right of the passenger side, and again herself moving towards the
car, when she made the decision to shoot. 130. There was no reason to believe letting
him drive away would pose a threat to others, if escape were even possible given the
blockage of his car. As stated in Waterman v. Batton, a case Defendants cite, the
position of the person relative to the path of the vehicle is important. 393 F.3d.
471, 479 (4th Cir. 2010).11
The 6th Circuit, when faced with a similar fact pattern, expressly recognized that

10
C.R.S. 18-8-103 with emphases supplied, grants this right as follows: It is no defense
to a prosecution under this section that the police officer was attempting to make an
arrest which was in fact unlawful, if he was acting under color of his official authority,
and in attempting to make the arrest, he was not resorting to unreasonable or
excessive force giving rise to the right of self-defense.
11
See 56, 105-132 explicitly detailing from their reports, again, pre-depositional
discovery, the safety of all third parties and the self reported movements of the involved
officers to positions of safety and out of the way at the time of this contagion shooting.

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an officer may not use deadly force once the car moves away, leaving the officer and
bystanders in a position of safety and additionally that where the car no longer
presents an imminent danger, an officer is not entitled to use deadly force to stop a
fleeing suspect. Godawa v. Byrd, 798 F.3d 457, 464 (6th Cir. 2015)(internal citations
omitted). The position of shooting officers is also very relevant to this determination -bullet evidence supports that the shooters were not in the path of the car. 12 Here, just
as in Cordova v. Aragon, a reasonable jury could disagree with the . . . determination
that Officer Aragon was indisputably in immediate danger when he fired the fatal shot.
569 F.3.d 1183, 1191 (10th Cir. 2009).13
Of course, given that Ryan Ronquillo is unable to tell his version of these events
about his assault, the accidental contact with Defendant Trujillo and the officers
positions at the time four of them fired eleven bullets at him, the Court should proceed
with caution in accepting any pre-discovery dispositive motion assertions about the

12
In this case, one bullet into Ryan Ronquillos left scalp was fired from the side and
went back to front. Bullet two also entered the side of his left cheek. Bullet 3 also
entered his left neck from the side. Bullet 4 hit his left arm, again from the side, moving
left to right and back to front. While this ballistic evidence was not plead with
particularity from the attached autopsy, Exhibit A, if needed for this Courts
determination in this pre-discovery motion, Plaintiffs request leave to amend to add this
further shooting officers positional evidence. No one was in the path of the car during
shooting.
13
See also Zia Trust Co. ex.rel. Causey v. Montoya, 597 F.3d 1150, 1154-55 (10th Cir
2010) (Reasonableness analysis includes where an officer positions himself there the
officer recklessly and deliberately placed himself in front of suspect van and then fatally
shot the suspect in the neck.); Godawa, 798 F.3d at 465 (Further, Defendant was not in
front of the car but instead was positioned near the rear passenger side, at the time he
fired his weapon. From that position, Defendant would have no reason to fear being
struck by the car as it continued to advance. . .Under Plaintiffs version of the facts,
however, Defendant was not in danger. And, critically, the fact that a situation is rapidly
evolving does not, by itself permit [an officer] to use deadly force.)

10

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underlying facts. See, e.g., Pauly v. White 814 F.3d 1060, 1079 (10th Cir. 2016): since
the victim of deadly force is unable to testify, courts should be cautious on summary
judgment to ensure that the officer is not taking advantage of the fact that the witness
most likely to contradict his storythe person shot deadis unable to testify. Id.
(quoting Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.1994)).14
Thus, it is highly disputed whether the officers were actually reasonably in fear of
danger at the precise moment that they used deadly force, but even if a jury determines
that they reasonably perceived such, the qualified immunity argument fails because of
their own reckless conduct which unreasonably created the need to use such force.
Defendants Video Distortions.
There are several critical factual distortions by Defendants including the bogus
assertion (and inference drawn in their favor) that Ryan Ronquillo crashed forward into
one of the SUVs before going backward. Actually, by officer and witness accounts, his
vehicle was not in gear until after he was punched in the face. 94. Consider the
following factual assertions raised by Defendants contested by the allegations:
a. The complaint alleges and the film unequivocally demonstrates that multiple
officers immediately attacked Ryan Ronquillo giving him no opportunity to surrender.

14
As the Ninth Circuit noted in Scott, 39 F.3d at 1079, the court may not simply accept
what may be a self-serving account by the police officer rather, [i]t must also look at
the circumstantial evidence that, if believed, would tend to discredit the police officers
story, and consider whether this evidence could convince a rational fact finder that the
officer acted unreasonably. See also Flythe v. D.C., 791 F.3d 13, 18-22 (D.C. Cir.
2015)(An African proverb teaches that only when lions have historians will
hunters cease being heroes Under these circumstances, where the witness most
likely to contradict [the officers] storythe person [he] shot deadis unable to
testify, courts must carefully examine all the evidence in the record.

11

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b. Defendants suggest at page 3 that officers followed Ryan Ronquillo in with

lights flashing such that he should have known police were following him. Def. Motion
p. 3. There is no video proving that any police officer very closely followed Ryan
Ronquillo into his parking spot with lights flashing. In fact, there is a very troubling
potential evidence spoliation 30-second gap or elipsis on Defendants Ex. 2 Cam. 16
which visually makes it falsely appear that Bell arrived only about 3 seconds after Ryan
Ronquillo stopped. In real time the SUV arrives 30 seconds later, decimating the
motions suggestion that Mr. Ronquillo was aware of Sergeant Bells lights. He parked
at 17:59:19 and was wedged in at 17:59:49. Where is that 30-second missing
film? Other views do not have this gap, see e.g. Cam. 2.
c. Ryan Ronquillo also did not crash into the black SUV before going
backwards. Motion page 4. Defendants refer the Court to about 18:00 on the film and
claims a crash happened here. The SUVs wheels do not move as they would if
crashed into. Instead three full sized officers are assaulting Mr. Ronquillo which jostled
the vehicle briefly. There is no clear evidence on the video that his vehicle moved
forward. Nor could he as Defendants admit that they bumped the black SUV into Ryan
Ronquillos vehicle. He could not then drive forward. 58 and 106. Further, Defendant
Sandoval admits that it was only after Ryan Ronquillo had been punched by that he
then moved the car backwards (notably, not forward). The brief jostling movement
in place that is seen in the Black SUV seconds after the assault began is not
reconcilable with the crash Defendants invent, but is entirely consistent with big men
pushing on a car that is already touching the SUV. Similarly, the blue car to the right of
Mr. Ronquillo also moves from the force of the assault.
These matters are not appropriately resolved by motion to dismiss. The Courts
analysis in Choate v. City of Gardner, Kansas, is particularly helpful. There the Court
rejected a motion to dismiss an excessive force claim, noting that such claim are highly
factual, acknowledging that Plaintiff there was alleging reckless conduct precipitating
the need for the use of force and then rejecting Defendants interpretation of a video of
the incident. No. 16-2118-JWL, 2016 WL 2958464 (D. Kansas, May 23, 2016) *2-4.
Specifically the Court rejected Defendants similar assertions there that a video of a
police shooting disproved those Plaintiffs allegations that the officers did not reasonably
perceive themselves to be in danger, finding that the video could be interpreted various
ways and Plaintiffs were entitled to reasonable inferences. The Court also relevantly

12

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found that even if decedent did threaten an officers safety, the officers could still be
liable for the use of excessive force if their deliberate or reckless actions before the
shooting unreasonably created the need to use force. Id.
Just as in Choate at p. 4:
defendants have not shown that plaintiffs excessive force claim cannot
succeed as a matter of law. Because the qualified immunity analysis is closely
related to that substantive inquiry, and because the officers need to act
reasonably was clearly established in the law, the Court further concludes that
defendants are not entitled to prevail at this stage on the basis of qualified
immunity. The Court therefore denies defendants motion to dismiss the
excessive force claim.
Defendants Cases, Primarily From Summary Judgment Rulings, Are Also
Distinguishable On The Main Issue In This Motion.
Defendants cited cases do not undermine Plaintiffs position that this violation
was clearly established.

Most of their cases, which almost exclusively are from

summary judgment proceedings, are bereft of Sevier type findings that the officers
themselves recklessly created the need for force.15
In many of Defendants cases, the police, who did not recklessly create the

15
See, e.g., Brosseau v. Haugen, 543 U.S 194 (2004)(the undisputed facts there show
that the shooting officer was afraid for his and other officers lives and there was no
allegation that the officers had engaged in deliberate conduct that created a need for
deadly force); Thomas v. Durasanti, 607 F.3d 655 (2010)(failing to identify himself as an
officer and pointing a weapon was not reckless creation for need for force where officers
had previously observed the occupants driving in a reckless manner as though fleeing a
crime and the driver admitted targeting officer with car); Troupe v. Sarasota County Fla,
419 F. 3d. 1160, (unlike here where no orders to put his hands up and surrender were
given to Ronquillo, in Troupe the Court found that Hart was disobeying their clear
orders to put his hands up and surrender and then suddenly began driving his vehicle);
Drewitt v. Pratt, 999 F.2d 774, 775 (4th Cir. 1993)(failure to display a badge was
irrelevant to the death threat posed to the officer at the time of shooting where no issue
of preceding recklessness or deliberate misconduct); Fraire v. City of Arlington, 957
F.2d. 1268 (5th Cir. 1992)(there was no basis for even finding that Lowerys actions
leading up to the shooting to be negligent).

13

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situation, also had other specific information that the suspect was endangering others.16
Because they do not address the holdings of the clearly established law in this
case, Defendants have missed the center of this claim. This is not about impermissibly
drawing guns, lack of uniforms or failing to identify. These facts are just part of the
totality to which Ryan Ronquillo can no longer testify. The center of this case is that this
cluster of defendants deliberately attacked and helped each other assault Ryan
Ronquillo, gave no commands and denied him any opportunity to surrender. Four of
them then shot him while neither they nor the public were then in any danger.
V. PLAINTIFFS HAVE ALSO SUFFICIENTLY ALLEGED ENTITY LIABILITY FOR
THE DEATH OF RYAN RONQUILLO
As shown herein, Plaintiffs have plausibly alleged an underlying constitutional
violation. The Complaint contains extensive specific factual allegations regarding the
deliberately indifferent conduct evidencing the Countys unconstitutional policies and
training, from which all reasonably plausible inferences must be drawn and accepted in
Plaintiffs favor in ruling on this motion. Lopez-Aguirre v. Bd. of Cnty. Commrs of
Shawnee Cnty., Kan, 12-2752-JWL, 2013 WL 1668239, *8 (D. Kan. Apr. 17, 2013)
(denying Countys motion to dismiss and rejecting argument that plaintiff has only
conclusorily pleaded claims, noting that plaintiff has at least stated plausible claims
through specific factual allegations.)

16
Hocker v Pikeville City Police Dept, 738 F. 3d 150 (6th Cir. 2013)(Prior to the police
encounter, Hocker had engaged in a high-speed chase and displayed his disregard for
safety and willingness to use his vehicle as a weapon and engaged in wanton
endangerment in the first degree during a high speed chase); Fraire, 957 F.2d. 1268
(Fraires actions leading up to the shooting included trying to run someone down with
his pickup); Cass v City of Dayton, 770 F.3d 368 (6th Cir. 2014)(finding officers prior
interactions with the driver made it clear he would continue to endanger others.)

14

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Factual disputes that must be further explored in discovery are not appropriately
resolved at the motion to dismiss stage. Petty v. Cnty. of Franklin, Ohio, 478 F.3d 341,
348 (6th Cir. 2007) (We are not convinced that the district court was correct in
dismissing Pettys municipal-liability claim at the 12(b)(6) stage. . . We wonder how
Petty would necessarily know, at the point of his complaint, and without the benefit of
discovery, whether such a custom or policy might exist, and if it does exist, what its
contours might be or how exactly it effected a violation of his constitutional
rights.)(emphasis supplied); Titlow v. Corr. Med. Servs., 07-12083, 2008 WL 2697306
(E.D. Mich. July 3, 2008) (As plaintiff points out, [t]he issue [on a Rule 12(b)(6) motion]
is not whether [plaintiffs] may ultimately prevail on [a] theory, but whether the allegations
are sufficient to allow them to conduct discovery in an attempt to prove their allegations.
. . Any suspicion about the type of policy or custom, if any, which resulted in the
decisions at issue here may be examined during discovery. Its existence may be
challenged during summary judgment.).
Denvers written policies were a moving force in Ryan Ronquillos
unconstitutional death.
It is boilerplate law that an entity is not liable for the constitutional violations of its
employee unless the entity itself took an action that was a moving force in that violation.
Monell v Department of Social Services of City of New York, 436 U.S. 658, 691
(1978)(Congress did not intend municipalities to be held liable unless action pursuant
to official municipal policy of some nature cause a constitutional tort.) Here Denvers
policy with respect to shooting at moving vehicles was a direct moving force in that
injury. Pre-discovery, it appears that each of the instances where a police officer shot at

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a vehicle from 2005 to 2015 was found to be within policy, even when the police officer
could have stepped aside rather than use deadly force. This policy and its ongoing
interpretation were direct moving forces in the death of Ryan Ronquillo. It instructed
DPD officers that it was permissible to place themselves and remain in the path of a
vehicle even in high-risk situations, and use deadly force by shooting into moving
vehicles rather than getting out of the way. This policy made no requirement of either
moving aside, or of otherwise diffusing the threat and also required no officer analysis of
when such deadly force would be excessive. Defendant Denver officers involved in this
shooting, and Denver high-level police evaluating this shooting, all claim that this
shooting was exactly as was allowed by this policy. 151-152.
A municipality is liable when enforcement of its policies causes a constitutional
deprivation. This is when the policy is unconstitutional on its face or as applied to the
Plaintiff. Christensen v. Park City Mun. Corp., 554 F.3d 1271, 1279 (10th Cir. 2009).
Here, Plaintiff has sufficiently alleged that the shooting was excessive and caused by
the policy as applied to Ryan Ronquillo (and to others, before and after, with express
high level approval). Denvers liability under Monell is sufficiently alleged. 175-180.
Denvers Policies regarding Shooting at Vehicles and High Risk tactics, as well as
the associated training, were deliberately indifferent and caused this death.
Denvers policy actions at the time, including not changing the policies despite
widespread knowledge that it was not acceptable police practice to shoot at vehicles in
these situations, along with the associated city training were deliberately indifferent. It is
also boilerplate that an entity can be held liable for failures in training, supervision and
policy making exists where the need for additional or different policies and training was

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so obvious that the failure to provide the same was deliberately indifferent to the rights
of the relevant public, and such failure was a moving force in the complained of injury.
City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989).
Such deliberately indifferent failures are themselves policy decisions. Id. at 389.
A policy decision is a moving force if the plaintiff demonstrates a direct causal link
between the municipal action and the deprivation of federal rights. Bd. of County
Comrs of Bryan County, Okl. v. Brown, 520 U.S. 397, 404 (1997). The Supreme Court
and Tenth Circuit have held that inadequacy of training is actionable under 42 U.S.C.
1983 where the failure to train amounts to deliberate indifference to the rights of
persons with whom the [government actors] come into contact. Allen, 119 F.3d at 8414217 citing to Canton, 489 U.S. 390.
This need for different training or policy making is obvious when a violation of
federal rights is a highly predictable or plainly obvious consequence of a
municipalities action or inaction, such as when a municipality fails to train an employee
in specific skills needed to handle recurring situations, thus presenting an obvious
potential for constitutional violations. Barney v. Pulsipher, 143 F.3d 1299, 1307-1308
(10th Cir.1998).What the individual players knew and did is a question of fact and [t]he

17
To establish liability for failure to train an officer in use of force, a plaintiff must allege
that training was inadequate and that (1) the officers exceeded constitutional limitations
on the use of force; (2) the use of force arose under circumstances that constitute a
usual and recurring situation with which police officers must deal; (3) the inadequate
training demonstrates a deliberate indifference on the part of the city toward persons
with whom the police officers come into contact, and (4) there is a direct causal link
between the constitutional deprivation and the inadequate training. Brown v. Gray, 227
F.3d 1278, 1286 (10th Cir. 2000). These factors are all alleged here. 77-104, 185186, 212-215.

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failure to remedy ongoing constitutional violations may be evidence of deliberate

indifference on the part of a municipality. See Brown, 520 U.S. at 407, 117 S.Ct. 1382
([Municipal decision makers] continued adherence to an approach that they know or
should know has failed to prevent tortious conduct by employees may establish the
conscious disregard for the consequences of their actionthe deliberate indifference
necessary to trigger municipal liability. Layton v. Bd. of Cnty. Commrs of Oklahoma
Cnty., 512 F. Appx 861, 871 (10th Cir. 2013).
Here Plaintiffs allege that the knowledge that Denvers previous Shooting at
Vehicles policy was highly predictable to yield constitutional violations in that it allowed
shooting at vehicles where no other deadly force was even threatened and any without
evaluation of whether such force was excessive. Plaintiff has specifically alleged that it
was well known to policing communities since at least the IACP recommendation of
2006, 8 years before this needless death, that Shooting at Vehicles policies like that
employed by Denver at the time of this injury were highly likely to injury or kill people
which such force was not justified. 178.
To Denver policy makers conscious awareness, the Police Executive Research
Forum had also recognized, prior to this shooting, that officers:
should be prohibited from shooting at vehicles unless vehicle occupants are
attempting to use deadly force -- other than the vehicle against the agent.
Training and tactics should focus on avoiding positions that put agents in the
path of a vehicle and getting out of the way of moving vehicles.
After the deaths of Ryan Ronquillo and Jessie Hernandez, Denvers training changed to
include lesson plans to more specifically cover shooting at vehicles and the use of
felony stop and cover tactics.

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The deliberately indifferent policy in place was that Denver officers could and
should shoot at moving vehicles when they assessed that there was a risk to them or
others from the vehicle. 182-186. The Office of the Independent Monitor (OIM), in
2015, criticized the pre-revision policy of Denver as not requiring officers to avoid
entering a vehicles possible path. OIM described this policy as lacking sufficient
tactical guidance on how best to safely approach encounters with suspects in vehicles
and a straightforward prohibition against shooting into moving vehicles when a threat is
posed solely by vehicles. OIM called this policy gap significant and noted that it failed
to include other important and common tactical elements such as the requirement
and importance of utilizing cover, if possible, when contacting suspects in vehicles.
Also after these deaths, Denver officers were retrained on high-risk stops and
responding to moving vehicles, including how to use move or move to cover
responses. The previous training was deliberately indifferently insufficient and caused
these deaths. Denver has been on express notice that major police departments
generally prohibited shooting at moving vehicles since at least 2006 when OIM brought
it to Denvers attention.
Denvers knowledge of the likelihood that these constitutionally deficient policies
and training were high likely to yield unconstitutional force is not limited to the
staggering weight of recommended policies and police practices around the country, but
also borne out by their own history of shooting at vehicles.
Between 2005 and 2015, it appears, pre-discovery, that Denver police fired shots
into moving vehicles at least 12 times, each time a finding was made that the shooting

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was in policy. In one such shooting, the Use of Force board recommended an out of
policy finding, but was overruled by the Chief of Police. The ongoing ratification of
these types of shootings is evidence of this custom, habit, practice and high-level
toleration of recklessness to the rights of people in cars to be free from excessive force.
Plaintiffs have already specifically alleged deliberately indifferent policies,
customs, habits, training and procedures which permitted police to shoot at persons in a
vehicle when there is no other weapon ( 174); a long and continuing history of such
unconstitutional shootings at vehicles pursuant to outdated and deliberately indifferent
training and policies ( 175-185); and a pattern, custom, habit, and practice of
encouraging tolerating and ratifying excessive force at DPD ( 187-198). Plaintiffs
further allege that the tactics used pursuant to custom, policy and training and as
directed by command in this event, were also deliberately indifferent. See, e.g., 43,
142, 215. Defendants are on more than ample notice of the allegations against Denver
and Plaintiffs should be allowed to proceed.18
To establish causation, the challenged policy or practice must be closely related
to the violation of the plaintiffs federally protected right. Id. The Supreme Court has
stated that the proper question in these entity-training claims is: Would the injury have
been avoided had the employee been trained under a program that was not deficient in
the identified respect? Canton, 489 U.S. at 391.

18
The above described context of these claims, and many more details about other
shootings, OIM criticisms, the knowledge around the country that such tactics and
policies were deliberately indifferent and the like could all be further pled if required and
thus if the Court is at all inclined to grant dismissal, the remedy should be leave to
amend to include these and other details.

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In answer to Cantons question: yes, this injury would have been avoided had
the employee been trained under a program that was not deficient in the identified
respect. Had the police who shot Ryan Ronquillo been constitutionally trained and
instructed not to shoot at otherwise unarmed moving vehicles he would be alive today.
Denver has a longstanding widespread custom, habit and practice of
encouraging, condoning and tolerating excessive force.
As the Court is aware, an entity is also liable when a person is injured by a state
actor due to the existence of a widespread practice that, although not authorized by
written law or express municipal policy, is so permanent and well settled as to constitute
a custom or usage with the force of law. Praprotnik, 485 U.S. at 127. Plaintiff here
alleges that these entities have a deliberately indifferent and continuing, persistent and
widespread custom and culture of excessive force by DPD. Gates v. Unified Sch. Dist.
No. 449, 996 F.2d 1035, 1041 (10th Cir.1993).
Denver tolerates and encourages excessive force by police through the
constitutionally deficient training described above and also through inadequate training
on use of force, failure to adequately investigate complaints of excessive force or
discipline officers who use such excessive force, ratification and a custom of tolerating
DPD officers code of silence with respect to uses of force. Plaintiffs have more than
plausibly alleging an ongoing pattern, practice and custom of encouraging and tolerating
excessive force. 186-198.
In the instant case, Denver has determined that the tactics and actions taken,
which include the known and admitted assault, were in conformity with policy and
training. Evidence that an officers excessive force was in conformance with training

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demonstrates a municipal failure in training that caused a constitutional violation. See,

e.g., Allen, 119 F.3d at 844 (There was evidence the officers were trained to act in
such manner and, thus, were trained to do precisely the wrong thing.); Moore v. Miller,
No. 10-cv-00651-JLK, 2014 WL 2207346, at *6-8 (D. Colo. May 28, 2014); Ingle v.
Dyer, No. 07-cv-00428-LTB-CBS, at *2, 4 (D. Colo. Apr. 11, 2008). As the Tenth Circuit
has noted, failure to investigate or reprimand might also cause a future violation by
sending a message to officers that such behavior is tolerated. Cordova, 569 F.3d at
1194. Lynch v. Barrett, No. 11-cv-1120-RBJ-MEH, 2012 WL 1890442, at *7 (D. Colo.
May 24, 2012) (noting acknowledgment of former Denver safety manager that there is
a culture in the Denver Police Department that accepts officers roughing up suspects
within certain boundaries).
Denver is alleged to have a long history of covering up and ratifying excessive
force. Here Denver is specifically alleged to have tried to cover up the pre-shooting
assault on Ryan Ronquillo as further continuation of this long standing approach to
excessive force with the overt participation of the Chief of Police. See, e.g. 150-173.
Denvers excessive force is not isolated to one type of police interaction, but
there is significant evidence of excessive force relating to shooting at moving vehicles
before and since Mr. Ronquillo. The shootings after this incident, which also were
unconstitutional and caused by the policy and training allowing shooting people rather
than stepping out of the way, were all ratified and also support this claim of a custom
and habit of excessive force. The factual distinctions Denver makes in its motion are
inappropriate at this pleading stage.

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Plaintiffs included allegations from a representative sample of Denvers long

history of excessive force. Denvers suggestion that previous incidents must be
adjudicated to evidence a custom is circular and would allow Denver to benefit from its
own failure to investigate and discipline, which is part of the alleged custom. Plaintiffs
have sufficiently alleged a custom, habit and practice of engaging in and tolerating
excessive force.19
Denver has ratified this conduct.
All the above three aspects of entity liability must be shown to be a moving force
in the underlying constitutional violation. Ratification is a separate avenue to entity
liability. Where Monell analysis focuses on whether an action of the entity was sufficient
to attach liability to the entity, to prevent respondeat superior type liability. Ratification
acknowledges that, where an entity approves of the conduct and the basis therefore of
an employee after the fact, the entity adopts that conduct as the entitys own conduct. It
is often necessarily an after the fact analysis of whether the entity, even knowing of the
conduct and the reasons for the conduct says, yes, we approve of this. When an entity
does that, even knowing the outcome, the concerns of attributing conduct to the entity
that are the heart of the Monell analysis are obviated, and the entity has chosen to

19
As above in describing the training and policies, there is much more that could be
said on this now famous problem of excessive force in Denver. For example, in Ortega
v. City and County of Denver, Denvers former manager of Safety testified that he
believed DPD officers used heavy-handed tactics for years as a result of Denvers
training. Denvers former Independent Monitor testified in that case about a systemic
problem of officers not being held accountable for use of force. There are many press
articles on Denvers high rate of excessive force and many other complaints of the
same. Amendment to add such allegations would be the appropriate remedy to any
found deficiencies. Plaintiffs request leave to do so if the Court is inclined to dismiss.

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adopt that conduct.

Defendants argument that the ratification after the fact strips Plaintiff of a causal
connection has no place in ratification theory. Judge Posner has explained that, [i]t is
true that by adopting an employees action as its own (what is called ratification), a
public employer becomes the author of the action for purposes of liability under section
1983. Gernetzke v. Kenosha Unified Sch. Dist. No. 1, 274 F.3d 464, 469 (7th Cir.
2001). See also J.B. v. Washington Cnty., 905 F. Supp. 979, 985 (D. Utah 1995) affd,
127 F.3d 919 (10th Cir. 1997) (holding that a Sheriffs subsequent review of a
subordinates reports that confirmed that the procedures used by police officers were in
accord with city policy would be sufficient to establish 1983 municipal liability). In fact,
the very essence of ratification is the affirmance of a prior act done by another).
Restatement (Third) of Agency 4.01 (2006) (Ratification is the affirmance of a prior
act done by another....); Id. 4.02 ([R]atification retroactively creates the effects of
actual authority.); Id. 4.01 cmt. b (Although ratification creates the legal effects of
actual authority, it reverses in time the sequence between an agents conduct and the
principals manifestation of assent.); see also Villanueva v. Brown, 103 F.3d 1128,
1139 (3d Cir. 1977) (Her act of signing the Investment Agreement clearly does not
ratify an event which had not yet occurred. She cannot ratify an action that she is not
aware of.)
The relevant inquiry into ratification theory is whether a final policy decision
maker affirmatively approved the unconstitutional act. Plaintiffs have alleged such
affirmative acts and approval here. 150-173.

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VI. CONCLUSION
Plaintiffs have sufficiently alleged and underlying constitutional violation and
entity liability therefore. Defendants motion should be denied.
Dated this 19th day of September, 2016.
/s/ John R. Holland
John R. Holland
Erica T. Grossman
Dan Weiss
Anna Holland Edwards
Holland, Holland Edwards & Grossman, PC
1437 High Street
Denver, CO 80218
Attorneys for Plaintiff

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CERTIFICATE OF SERVICE
I hereby certify that on the 19th day of September, 2016, the foregoing was filed
using the CM/ECF system. I hereby certify I will send electronic notification of said filing
to the following recipients.
Wendy Shea
David Cooperstein
Writer Mott
Denver City Attorneys Office
201 W. Colfax Avenue, Dept. 1108
Denver, CO 80202
Wendy.shea@denvergov.org
David.cooperstein@denvergov.org
Writer.mott@denvergov.org
Attorneys for City of Denver related Defendants
Rebecca Klymkowsky
Rachel Bender
Jefferson County Attorneys Office
100 Jefferson County Parkway, Suite 5500
Golden, CO 80419
rklymkow@jeffco.us
rbender@jeffco.us
Attorneys for Defendant Ingersoll
/s/ Brooke Thiele-LaForest
Brooke Thiele-LaForest, Paralegal

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