On the afternoon of July 2, 2014, Joseph Valverde arranged with Rodriguez, an undercover deputy sheriff with the Adams County (Colorado) Sheriff’s Office to purchase two kilos of cocaine at a public park in Denver, Colorado. Valverde had previously sold guns illegally to Rodriguez, including an AK-47 rifle.
At the conclusion of the drug sale, a Denver Police Department (DPD) SWAT team was assigned to arrest Valverde. SWAT officers were told in a pre-arrest briefing that Valverde had a gang connection, had previously sold illegal firearms and was known to carry a firearm. DPD Officer Dodge was the SWAT team leader. The team included five other officers and a K-9. Dodge was the driver of the unmarked SWAT van.
At the time of the incident, Deputy Rodriguez gave the bust signal and the SWAT van moved in to arrest Valverde. When the van pulled up, Valverde and Rodriguez were standing on a sidewalk facing toward the park’s parking lot. Directly in front of them was an open parking space. The parking spaces to the immediate right and left of the open space were occupied with vehicles, one of which belonged to the undercover deputy. The SWAT van pulled up and stopped partially in front of the open space.
The SWAT team deployed from the van and an officer threw a flashbang device, which exploded. SWAT leader Dodge exited the van from the driver’s side door armed with his semi-auto carbine. One or more officers ordered Valverde to raise his hands and get down. Valverde did not immediately comply and jumped slightly backward in reaction to the flash bang. Although the officers did not identify themselves, they were wearing SWAT-style green uniforms and their tactical vests contained a DPD badge and the word “Police” on the chest.
Valverde next moved slightly forward and slid to his left, stopping next to the right front tire of a parked vehicle. Valverde faced Officer Dodge who was close by. Dodge saw that Valverde kept grabbing for something in his pocket or waistband. Other surrounding officers saw this as well. Suddenly, Valverde pulled out a firearm in his right hand at waist level. Dodge and some of the other officers saw the gun.
Less than a second later Officer Dodge fired five shots at Valverde in rapid succession. Three shots struck Valverde – one in his right chest, a second to the back of his right elbow and a third to his right back. Dodge did not warn Valverde of his intent to shoot. None of the other SWAT officers fired. About four seconds elapsed from Dodge’s exiting the SWAT van to Valverde being shot and falling to the ground. Valverde was killed and his Estate sued Officer Dodge pursuant to 42 U.S.C. §1983, alleging excessive force in violation of the Fourth Amendment.
During the incident, the FBI deployed a plane and conducted aerial surveillance of the situation. Video footage, without sound, was recorded of the entire event. In the lawsuit, the Plaintiff alleged that the FBI video shows Valverde never pointed his gun at Dodge or any officer, voluntarily discarded his gun to the ground while still standing and raised his hands up near his head, all in one motion prior to being shot.
The Federal District Court rejected Officer Dodge’s assertion of the qualified immunity defense, finding multiple factual disputes that could not be resolved by the aerial video footage. Viewing the disputed facts in favor of the plaintiff as required by federal court procedure in deciding a summary judgement motion, the court ruled that the decedent “discarded his firearm and complied, or was in the process of complying ,,, before Officer Dodge shot him.” Dodge appealed the ruling to the Tenth Circuit Court of Appeals and the Circuit court reversed and ruled in favor of officer Dodge. [1]
Analysis and Ruling of the Tenth Circuit
The Tenth Circuit stated that its analysis would be based upon the Plaintiff’s version of events but would be supplemented with clear evidence from the available video footage.
The court stated it would analyze Dodge’s conduct as to whether he acted with “objective reasonableness” from a “totality of the circumstances” perspective. This requires judgement from the “perspective of a reasonable officer on the scene, rather than with 20/20 vision of hindsight.” [2]
Further the court explained that “the calculus of reasonableness must embody allowance for the fact that … officers are often forced to make split-second judgements – in circumstances that are tense, uncertain, and rapidly evolving.” [2]
The court observed that the Supreme Court in Graham v. Connor [2] cited three facts of importance in the “totality of circumstances” analysis:
- The severity of the crime at issue;
- The immediacy of the threat of harm to the officer or others;
- Whether the suspect resisted arrest or attempted to flee.
The court noted that of these three factors, the most important and significant factor is clearly how immediate the threat of serious physical harm was to the officer or others.
The Tenth Circuit ruled that Officer Dodge acted reasonably in shooting Valverde for the following reasons:
- Officer Dodge was told at the pre-event briefing that Valverde had been selling weapons and dealing with large quantities of illegal drugs. Although the court did not mention it at this point in its opinion, the court’s earlier iteration of the facts mentioned that Valverde was known to carry firearms and had a gang affiliation.
- Dodge saw the barrel of a handgun as Valverde pulled it from his waistband or pocket. The court opined, “To wait to see what Valverde would do with the weapon could be fatal.” The court ruled that “the law permitted Dodge to fire as soon as he saw the gun in Valverde’s hand.”
- The court observed that Dodge fired immediately and stated, “The sound of [Dodge’s] first shot was less than a second after Valverde pulled out his gun. The sound of his last shot was a mere second after the first.”
- The court pointed out that Dodge could not wait to see what Valverde intended to do with his firearm and explained, “Perhaps a suspect is just pulling out a weapon to discard it rather than to fire it. But waiting to find out what the suspect planned to do with the weapon could be suicidal.”
- The court reviewed the FBI video and ruled that “no jury could doubt that Dodge made his decision to fire before he could have realized that Valverde was surrendering (by dropping his gun and raising his hands). The video disclosed that Valverde did not move to discard his firearm until about a half a second before Dodge fired his first shot and did not begin to raise his hands until a quarter second before Dodge’s first shot.
- The court concluded by stating, “Dodge’s decision to shoot…is exactly the type of split second judgement, made in tense, uncertain, and rapidly evolving circumstances, that courts do not like to second guess using the 20/20 hindsight found in the comfort of a judge’s chambers.”
Conclusion
The decision in this case demonstrates the incredible value to American law enforcement found in the clear guidance and direction provided to the lower federal courts by the United States Supreme Court in its Graham v Connor decision.
The Tenth Circuit’s Valverde decision is a prime example of what the Supreme Court described in Graham when it spoke about officers needing to make split-second judgments in tense, uncertain and rapidly evolving highly dangerous circumstances. Officer Dodge saw Valverde produce a gun. He fired five shots in less than two seconds. He had no time to wait to see what Valverde’s intention was. His split-second decision to shoot was foreseen and approved by the Supreme Court in Graham years before it happened.
The Graham standard for the use of deadly force by law enforcement is under attack by anti-police forces in America. [3] Law enforcement departments, agencies and associations should resist these efforts and oppose those seeking to abolish this critical standard.
NEXT: Graham v. Connor: Three decades of guidance and controversy
References
1. Valverde v. Dodge, (No. 19-1255) (10th Cir. 2020).
2. Graham v. Connor, 490 U.S. 386, 396 (1989).
3. See, California Assembly Bill (AB) 392 enacted into law on August 19,2019. This statute changes the California law enforcement deadly force standard from “objective reasonableness” to “necessary” in defense of human life.
