Eugene Volokh does a deep dive on the case at his Volokh Conspiracy blog . . .
From Magistrate Judge Reid Neureiter’s Report and Recommendation yesterday in Huff v. City of Aurora (D. Colo.) (the ultimate decision will be in the District Judge’s hands, though such Magistrate Judge Reports and Recommendations are generally quite influential)
At 11:30 p.m., Officers Ord, Marrero, and Oviatt, without any advance notice to Mr. Huff, went to Mr. Huff’s home. They parked around the corner and, wearing all black clothing, proceeded to “creep” through neighboring yards towards Mr. Huff’s residence. When Mr. Huff, who was smoking outside, saw these unidentified individuals advancing upon his home, he believed that Mr. Bejar-Gutierrez was following through on his earlier threats. He ran inside and retrieved a shotgun. He was facing the window with both hands by his side. His left hand held the shotgun by the barrel—his finger was not on the trigger and the gun was pointed at the ceiling. About 30 feet away, Officer Ord drew his weapon and, as he yelled, “Put your hands up, put your hands up!”, fired five shots at Mr. Huff. Mr. Huff, who was diving away from the window as Officer Ord opened fire, was shot in rectum and severely injured. Another round entered the room where his daughter lay sleeping.
Officer Ord attempted to justify his actions by exclaiming that Mr. Huff “came into the window with a gun,” and afterwards stated, “They are racking up in the garage,” when, in fact, Mr. Huff, bleeding profusely on the floor, was merely calling 911 for help. Mr. Huff was charged with multiple felonies, all of which were ultimately dismissed. The second is a claim for municipal liability brought against the City for its allegedly unconstitutional policies, practices, and customs.
And the Magistrate Judge also concluded that municipal liability was possible here, because Huff “has sufficiently alleged that the City failed to train Officer Ord in the use of appropriate force when confronted with individuals exercising their Second Amendment right to keep bear arms in their homes, and that the City’s final policymakers ratified Officer Ord’s allegedly unconstitutional use of deadly force”:
Mr. Huff alleges here that “[n]ot only does Aurora have absolutely no training on shooting into residences or encounters with homeowners exercising Second Amendments rights, but it has also almost zero training on avoiding unnecessary escalation, and deficient training on proportional constitutional use of force.” If true, this demonstrates the APD’s deliberate indifference to its citizens’ constitutional rights, especially given how many American homeowners—exercising their well-established Second Amendment rights—legally own and possess firearms. Accordingly, at this early stage, Mr. Huff’s Amended Complaint plausibly states a claim against the City under a failure to train theory….
According to Mr. Huff, APD Chief Paul O’Keefe publicly supported Officer Ord after the shooting, stating that Officer Ord complied with APD policy and did nothing wrong. Mr. Huff further notes that former APD Chief Nick Metz publicly backed the officers who shot and killed Mr. Black in 2018. No officers were disciplined in either case. Mr. Huff argues that this amounts to ratification and is evidence of the APD’s unconstitutional policy of shooting at homeowners lawfully exercising their Second Amendment rights….
Chief O’Keefe’s failure to discipline Officer Ord after shooting Mr. Huff cannot, on its own, plausibly form the basis of municipal liability on a ratification theory. However, … “[a] failure to investigate or reprimand might also cause a future violation by sending a message to officers that such behavior is tolerated.” That is what Mr. Huff alleges here. He claims that after police shot and killed Mr. Black in his home, then-Chief Metz publicly stated the officers did nothing wrong and none of them were disciplined. Then, Chief O’Keefe, after “carefully review[ing] and analyz[ing] Officer Ord’s decision to shoot Plaintiff,” under circumstances similar to those that resulted in Mr. Black’s death, likewise determined that the officer’s actions were in line with APD policy. If the City’s final policymakers took affirmative steps to not merely condone but also commend the allegedly excessive and unconstitutional use of deadly force by APD officers, this deliberate conduct may be enough to establish the existence of an official informal policy, whatever the formal written policy may provide….
