From [HERE] Almost 10 years to the day after Denver police shot at Michael Valdez 19 times while he lay on the ground in surrender, lawyers for the city were back in court seeking to throw out his excessive force lawsuit.

This time, Valdez was armed with a jury's verdict finding Denver liable for failing to train its officers on a specific category of deadly force, along with $2.5 million in damages jurors awarded him in 2021. But the city claimed the trial judge so mishandled the case that Valdez's allegations never should have went before a jury in the first place.

During oral arguments on Tuesday before a three-judge panel of the U.S. Court of Appeals for the 10th Circuit, the city argued the single incident Valdez used to illustrate Denver's failure to train its officers — his own January 2013 shooting — was not a viable constitutional violation.

"It’s undisputed that Denver trains on the constitutional limits of the use of lethal force," said Katherine Field of the Denver City Attorney's Office. "And that alone should foreclose any single-incident municipal liability claim."

In Valdez's case, Sgt. Robert Motyka Jr. shot him repeatedly after a vehicle chase in which Motyka himself was shot. The question for Valdez's jurors was whether his injuries were a product of Denver failing to train its officers that deadly force should not be used "out of adrenaline, or anger, after heaving been shot at or struck," or as a means of retaliation.

Some members of the 10th Circuit panel were unsure that question could be resolved solely by looking at the law, and required asking a jury to sort out what actually happened.

"Here you have the officer’s been shot, right? Chasing the truck, getting shot at, getting shot," said Judge Scott M. Matheson Jr. "And officers get involved in chasing fleeing felons — at least maybe not every day, but it’s not an unusual circumstance. So why wouldn’t it be obvious that if you have an officer who's involved in a chase, he gets shot, he needs some guidance on what to do next?"

On Jan. 16, 2013, Valdez accepted a ride in a pickup truck from acquaintances, not knowing police were looking for the truck in connection with multiple reports of violence in the Denver area. An officer spotted the vehicle after it picked up Valdez and a chase ensued. Other occupants of the truck, but not Valdez, shot at officers, hitting one of them in the shoulder.

The wounded officer — Motyka — continued with the pursuit until the truck crashed near 39th Ave. and Osage St. In Valdez's telling, he exited the truck, immediately got on the ground and held his hands above his head. It was undisputed that Motyka began shooting Valdez, joined by Lt. John Macdonald, who shot because he saw Motyka shooting. One bullet destroyed Valdez's finger and another seriously damaged his bowel and spine.

Valdez was taken to the hospital, where he had to be resuscitated. The bullet that entered his back injured his spine, and his finger had to be amputated. He was then charged with fifteen criminal counts, including attempted first-degree murder, for the shootout, and four counts related to Montoya holding up his relatives at gunpoint, even though Valdez never used a gun and wasn't involved in Montoya's previous crime. Valdez spent over two months in jail before Denver District Attorney Mitch Morrissey dismissed all the charges.

The Denver City Attorney's Office has been fighting Valdez in court since the original complaint was filed in 2015. All other officers involved in the chase and shooting have been cleared. [MORE]

Motyka subsequently received an award for his actions, and Denver's then-manager of safety said Motyka "acted appropriately and reasonably to stop the imminent threat posed by Michael Valdez."

In 2015, Valdez sued multiple officers and the city for constitutional violations. Eventually, his claims were pared down to Motyka's use of excessive force and Denver's failure to train its officers.

At that point, U.S. District Court Judge William J. Martínez took over the case. In the city's telling, he made a series of questionable decisions that benefitted Valdez. For example, Martínez permitted Valdez to pitch new theories for holding the city liable, not raised in the original lawsuit. Of those, Martínez green-lit one for trial: Denver's failure to train officers that retaliatory shootings were wrong.

"In other words, a reasonable jury could conclude, through common experience and common-sense," wrote Martínez, "that some police officers, once shot at, will believe that the shooter is inviting a gunfight and is therefore fair game for deadly force no matter what happens next, such that failure to train police officers in this regard 'could properly be characterized as deliberate indifference to constitutional rights.'"

The city contended that Martínez was wrong to deny Denver summary judgment, which a judge may do when the key facts are undisputed and the law allows one party to prevail. It also argued Martínez allowed Valdez to repeatedly change his theory for holding Denver liable, and had failed to properly instruct the jury.

Adam Mueller, the attorney representing Valdez, told the 10th Circuit that it was highly unusual for Denver, in its post-trial appeal, to not rely on the evidence introduced at trial. He defended Martínez's decision allowing Valdez to hold the city liable for its inadequate training on anger-based shootings, even if there was no pattern of similar incidents.

"There is a category of cases where the need for training is so obvious that the failure to give that training is substantially certain to lead to a deprivation of constitutional rights," Mueller said. "The jury was instructed on that theory. And it is a question of fact whether something is so obvious that the city should have known."

"There have to be some limits on when the jury is allowed to determine this is obvious, even though it hadn’t happened before," responded Judge Harris L Hartz. "Human nature is, 'Once it’s happened, it’s obvious. If it happened, it can happen.'"

He elaborated that a similar situation arises in lawsuits seeking to hold jail officials liable for detainee suicides. One such instance arose last year, when Hartz joined a decision granting immunity to Jefferson County sheriff's employees. At the time, he reasoned they may have been negligent in allowing a mentally-troubled woman to remain alone in a room with implements to hang herself, but their conduct was not a constitutional violation.

"In retrospect it’s pretty obvious you don’t leave a rope in a cell or a sheet in a chair," Hartz told Mueller. "But you have so many cases where summary judgment for a defendant, a law enforcement agency, is granted because of evidence that they hadn’t experienced this before. Why is that not enough to say the verdict here can’t stand?"

Yet, the panel also acknowledged Martínez's belief that a jury could find the lack of training to be obvious at the time.

"There was no guidance on what to do if you’ve been shot," Matheson said.

At the same time the city appealed Martínez's handling of the case, Valdez also asked the 10th Circuit to reinstate his claim against Macdonald, the other officer who shot him. The original trial judge, Richard P. Matsch found in 2019 that Macdonald's conduct did not clearly violate Valdez's constitutional rights. Weeks later, Matsch died and Martínez took over the case.

As the final component of the appeal, Denver, now joined by Motyka, challenged Martínez's award of attorney fees to Valdez.

The case is Valdez v. City and County of Denver et al.