a. Special Relationship

For the reasons stated in § V(B) (1), supra, I conclude that the Command Defendants were not in a special relationship with Plaintiff.

 
b. Danger Creation/Enhancement

Although the danger creation/enhancement exception is not expressly stated as a basis for liability in Claim Five, the parties addressed this exception in their briefs. Out of an abundance of caution, I analyze this exception to DeShaney'slimitation of liability for failure to protect citizens from private violence.

In DeShaney, the Court stated that:

​

[w]hile the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them.

DeShaney, 489 U.S. at 201, 109 S. Ct. 998 (emphasis added).

​

Courts have grappled with the question of what state conduct "creates or enhances" danger sufficient to establish a duty to protect. In Medina v. City and County of Denver, 960 F.2d 1493 (10th Cir.1992), the Tenth Circuit explained that police officers who engaged in a high speed car chase that resulted in injuries to a bicyclist could be liable for creating a special danger faced by the bicyclist. Id. at 1495-99.

​

The Tenth Circuit also addressed directly the state-created or enhanced danger *1219 doctrine in Graham v. Independent School Dist. No. I-89, 22 F.3d 991, 994 (10th Cir.1994) concerning acts of violence at two schools. At one school, a student was shot and killed by another student. At the other school, a student was stabbed by a fellow student. The students' parents brought separate § 1983 actions against their respective School Districts which were consolidated on appeal.

​

The Graham Court noted that "DeShaney ... le[ft] the door open for liability in situations where the state creates a dangerous situation or renders citizens more vulnerable to danger," citing Reed, 986 F.2d at 1125 and Dwares v. City of New York, 985 F.2d 94, 99 (2nd Cir.1993). Citing L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir.1992), cert. denied, 508 U.S. 951, 113 S. Ct. 2442, 124 L. Ed. 2d 660 (1993), the Court stated that "[this state-created danger] doctrine necessarily involves affirmative conduct on the part of the state in placing the plaintiff in danger." Graham at 995. Based in part on the plaintiffs' failure to point to any affirmative actions by defendants that created or increased the danger to the victims, the Court affirmed the district court's dismissal of the plaintiffs' complaints.

​

The contours of this doctrine were further explored in Uhlrig, 64 F.3d 567 in which the husband of a therapist killed by a mental hospital patient filed a § 1983 action asserting that the state's decision to terminate a special unit created the danger that led to his wife's death. The Uhlrig Court articulated a five-part test to determine whether a defendant created or enhanced the danger for the plaintiff: 1) whether plaintiff was a member of a limited and specifically definable group; 2) whether defendant's conduct put plaintiff at substantial risk of serious, immediate, and proximate harm; 3) whether the risk to plaintiff was obvious or known; 4) whether defendant acted recklessly in conscious disregard of that risk; and 5) if such conduct, when viewed in total, "shocks the conscience" of federal judges. Id.

​

To bring the Uhlrig test in line with DeShaney, the Tenth Circuit later held in Armijo v. Wagon Mound Public Schools, 159 F.3d 1253 (10th Cir.1998) that "in addition to meeting Uhlrig's five-part test, a plaintiff must also show that the charged state entity and the charged individual defendant actors created the danger or increased the danger in some way." Id. at 1263; accord Sutton v. Utah State School for the Deaf and Blind, 173 F.3d 1226, 1238 (10th Cir.1999) (noting that danger-creation theory "necessarily involves affirmative conduct on the part of the state in placing the plaintiff in danger"). If, however, a plaintiff is unable to meet the five Uhlrig requirements, a court need not reach the question of the state's role in causing or enhancing the danger to the plaintiff. Armijo, 159 F.3d at 1263, fn. 6. I address Plaintiff's claim in light of these controlling legal principles.

 
i. First Uhlrig element Member of Limited and Specifically Definable Group

Plaintiff contends he was a member of a limited and specifically definable groupthose students shot and seriously injured students in the Library. Plaintiff has met this element of the Uhlrig test.

 

ii. Second Uhlrig element Risk of Serious, Immediate and Proximate Harm

Claim Five is based not only on the Command Defendants' failures to act but also on their instructions to persons in the Library, including Plaintiff, to stay put and assurances to them that help was on the way. For the reasons set out in Schnurr, under the circumstances of this case, *1220 Plaintiff's allegations can be construed fairly to meet the second element of the Uhlrig test that the Command Defendants' affirmative actions on April 20, 1999 enhanced the danger that he would be attacked by Harris and Klebold. By ordering the SWAT teams and rescue units to not enter Columbine for several hours after Harris and Klebold committed suicide, the Command Defendants also enhanced the danger that his injuries would be aggravated and his suffering increased.

 
iii. Third Uhlrig Element Obvious or Known Risk

Plaintiff does not allege that the Command Defendants knew specifically that he had been shot in the Library and was in need of medical treatment. It is alleged, however, that the Command Defendants knew that emergency medical treatment was needed for persons in the Library. See C/O ¶ 208. Thus, Plaintiff's allegations can be construed fairly to meet the third Uhlrig element.

 

iv. Fourth Uhlrig Element Reckless Actions in Conscious Disregard of the Risk

For a claim of recklessness to be cognizable under § 1983, the state actor must manifest either an intent: 1) to harm; or 2) to place a person unreasonably at risk of harm." Uhlrig, 64 F.3d at 573. The Due Process clause does not protect citizens "against incorrect or ill-advised [government] decisions." Seamons, 84 F.3d at 1236 quoting Collins, 503 U.S. at 120, 112 S. Ct. 1061.

The first type of recklessness conforms to the outlines of traditional intentional torts, while the second is defined as "when a state actor `was aware of a known or obvious risk that was so great that it was highly probable that serious harm would follow and he or she proceeded in conscious and unreasonable disregard of the consequences.'" Uhlrig, 64 F.3d at 574 quoting Medina v. City and County of Denver, 960 F.2d 1493, 1496 (10th Cir.1992) (emphasis added).

​

Pursuant to Uhlrig, there are no factual allegations supporting the inference that these Defendants harbored an intent to harm Plaintiff. See id. at 574. Rather, Plaintiff alleges that at some point after Harris and Klebold killed themselves, a SWAT team entered the School's north entrance, see C/O ¶ 133. Based on the exigent circumstances facing the Command Defendants, including the need to clear the School of potential attackers and potential explosives, see Command Defendants' Response Brief, p. 12, I cannot conclude that the decisions made and implemented by the Command Defendants were unreasonable. See Medina, 960 F.2d at 1496. Consequently, Plaintiff's allegations are insufficient to demonstrate that the Command Defendants acted recklessly in conscious disregard of the risk that Mr. Ireland's injuries would be aggravated and his suffering increased. Thus, this Uhlrig factor has not been met.

 
 

v. Fifth Uhlrig Element "Conscience Shocking" Conduct

The fifth Uhlrig element requires that a defendant's conduct, when viewed in total, must be "conscience shocking" to the court. To "shock the conscience," a plaintiff must do more than show that the government intentionally or recklessly caused or enhanced the danger facing a plaintiff by abusing or misusing government power. The plaintiff must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking. Uhlrig, 64 F.3d at 574.

​

In the companion case of Sanders v. Board of County Comm'rs, 192 F. Supp. 2d 1094, I concluded that the Command Defendants' failure to provide medical aid to *1221 Mr. Sanders shocked the conscience of this federal court. Id. at p. ___, 2001 WL 1808537 at pp. 15-16. The circumstances in this case are distinguishable from those presented in Sanders.

​

In Sanders, Columbine teacher Dave Sanders reached Science Room 3 after being shot twice in the back by Klebold near the School cafeteria. It was alleged that from approximately 12:30 p.m. when the Command Defendants learned that Harris and Klebold were dead until 4:00 p.m. when a SWAT team reached Mr. Sanders, the Command Defendants knew Mr. Sanders' exact location and the nature of his wounds. The Sanders Complaint alleged that during this time, despite repeated communications with the Science Room 3 occupants apprising them of Mr. Sanders' grave and deteriorating condition, the Command Defendants took repeated affirmative actions to block access to or rescue of Mr. Sanders by private citizens or other state actors. See Sanders Memorandum Opinion and Order, p. ___, 2001 WL 1808537 at *15. These actions included forbidding the Science Room occupants from breaking exterior windows to get help for Mr. Sanders and physically preventing a teacher from leaving the School to obtain help. See id. at pp. ___-___, 2001 WL 1808537 at *18.

Here, in contrast, Plaintiff has not alleged that the Command Defendants knew: 1) that he was in the Library; 2) that he was injured; or 3) the nature and extent of his injuries. Moreover, there are no allegations that the Command Defendants stymied specific attempts to obtain medical aid for Plaintiff.

​

Furthermore, Plaintiff has not alleged that the Command Defendants harbored an intent to harm him unjustified by any government interest. Consequently, for the reasons set out in Schnurr based on County of Sacramento v. Lewis, 523 U.S. 833, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998), I conclude that the alleged actions and inactions on the part of the Command Defendants faced with a volatile emergency situation the scope and nature of which was unknown and unprecedented, fail to shock the conscience of this court in the constitutional substantive due process sense. See Lewis,523 U.S. at 849, 118 S. Ct. 1708; Radecki v. Barela, 146 F.3d 1227 (10th Cir.1998).

​

Plaintiff has not met the fourth and fifth Uhlrig elements. Consequently, the Command Defendants are entitled to dismissal of Claim Five based on danger creation/enhancement theory.

Even if Claim Five asserts violations of substantive due process, qualified immunity necessarily attached for the reasons stated in Schnurr, § VI, 189 F. Supp. 2d at 1124-25.

 

C. Claim Six42 U.S.C. § 1983Deprivation of right to life, liberty, and personal security against individual Sheriff Defendants Stone, Kiekbusch, Manwaring, Dunaway, Walcher, and John or Jane Does 51-100, in their individual capacities, based on failure to remedy subordinates'/colleagues' deprivations of constitutional rights

​

The proper test for holding a supervisor liable for the unconstitutional conduct of subordinates under § 1983 requires allegations of personal direction or of actual knowledge and acquiescence in conduct alleged to have violated the constitutional rights of a citizen. Woodward v. City of Worland, 977 F.2d 1392, 1400 (10th Cir.1992) cert. denied, 509 U.S. 923, 113 S. Ct. 3038, 125 L. Ed. 2d 724 (1993). See also Rizzo v. Goode, 423 U.S. 362, 371, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976) (supervisor liability requires an "affirmative link [between the supervisor and the subordinate] ... showing [the supervisor's] authorization *1222 or approval of such misconduct"); McClelland v. Facteau, 610 F.2d 693, 696 (10th Cir.1979) (same).

Plaintiffs allege that the Command Defendants issued "command and/or supervisory directives causing, and/or knowingly acquiescing in commanded personnel's ... deprivation of Patrick Ireland's constitutional rights...." C/O ¶ 213. Thus, the first Woodward element is met.

​

Based on the analysis of Claim Five, however, Plaintiff has not made an initial showing of an underlying constitutional violation on the part of the Command Defendants. Thus, Plaintiff has not met the second essential element of a supervisory liability claim. See Woodward, 977 F.2d at 1400. The Command Defendants are entitled to dismissal of Claim Six.

Assuming Claim Five asserts violations of Plaintiff's rights to substantive due process, the Command Defendants state they are entitled to qualified immunity. I agree for the reasons stated in Ruegsegger v. Jefferson County Bd. of County Comm'rs, Case. No. 00-B-806, 197 F. Supp. 2d 1247, 1262-1264, § VI which are incorporated by reference into this Memorandum Opinion and Order.

​

D. Claim Two42 U.S.C. § 1983Deprivation of right to life, liberty, and personal security against Sheriffs Beckham and Stone, in their official capacities, and the Jefferson County Sheriff's Department, based on inadequate policies, practices, and training.

Claim Two asserts that the Jefferson County Sheriff's Department, former Sheriff Ronald Beckham, in his official capacity, and Sheriff John Stone, in his official capacity violated Plaintiff's substantive due process rights by failing to implement adequate policies or adequately train the Sheriff's deputies so as not to violate Plaintiff's constitutional rights. See C/O ¶¶ 161-62. Liability does not attach to the governmental entity pursuant to § 1983 for the acts of its employees unless the Plaintiff can show: 1) that a municipal employee committed a constitutional violation; and 2) a municipal policy or custom was the moving force behind the constitutional deprivation. Myers v. Oklahoma County Bd. of County Comm'rs, 151 F.3d 1313, 1317 (10th Cir.1998).

​

1. Constitutional Violation

Plaintiff has not made the requisite predicate showing of an underlying constitutional violation as to Claim Two against the Sheriff Defendants. See §§ (V) (A-C), supra. Therefore, Plaintiff cannot meet this element. Assuming, however, a constitutional violation, I assess the second element also.

​

2. Policies, Procedures, Custom, or Training as Moving Force

A governmental entity or its policy makers may be liable pursuant to § 1983 if there is a failure to adequately train employees and that failure is the cause or the "moving force" behind the underlying constitutional deprivation. See City of Canton v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989); Myers, 151 F.3d at 1317. A governmental entity "`is only liable when it can be fairly said that the city itself is the wrongdoer.'" Collins, 503 U.S. at 122, 112 S. Ct. 1061.

​

As in Castaldo, I conclude that Harris and Klebold were the "moving force" behind Plaintiff's injuries. Plaintiff's allegations that his injuries could have been avoided if there were different policies in place or adequate training do not state a viable claim.

 

*1223 VI.

Claims against School Defendants

A. Claim Three42 U.S.C. § 1983Deprivation of right to life, liberty, and personal security against Howard Cornell, individually based on creating or substantially enhancing the danger faced by Plaintiff and special relationship

Plaintiff alleges that Defendant Cornell was responsible for enacting policy relating to the enforcement of student behavior and discipline at Columbine. See C/O ¶ 172. He alleges that "various District R-1 employees knew of or suspected Harris' and Klebold's hateful and violent tendencies." C/O ¶ 82. The Complaint does not allege specifically that Mr. Cornell was one of the "various District R-1 employees" that were privy to the information about Harris and Klebold. For purposes of analysis, however, I assume that Mr. Cornell acquiesced in Harris' and Klebold's conduct by "repeatedly failing and refusing to address [their] threatening and menacing behavior." See id. at ¶ 171.

​

Generally, "a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." See DeShaney, 489 U.S. at 197, 109 S. Ct. 998. Absent a special relationship or Mr. Cornell's creation of the danger that Plaintiff faced, there is no constitutional duty to protect. See id.

​

In the Tenth Circuit, school officials have no constitutional duty to protect students based on mandatory school attendance from the private actions of third parties. See Graham, 22 F.3d at 994-95; Maldonado, 975 F.2d at 732. This is true even when public officials know of an individual's capacity for violence. See Graham, 22 F.3d at 994-95 (no duty despite school's prior knowledge of specific threats of violence against student); Armijo, 159 F.3d at 1261 (no duty to protect student with known suicidal ideation from self-inflicted harm).

 

1. Special Relationship

Pursuant to DeShaney, "[t]he affirmative duty to protect arises not from the State's knowledge of the individual's predicament... but from the limitation which it has imposed on his freedom to act on his own behalf." DeShaney, 489 U.S. at 200, 109 S. Ct. 998. (emphasis added). Unlike criminal incarceration and involuntary commitment to a mental health facility, public education does not impose a sufficient limitation upon students' freedom to act to create a special relationship. See Vernonia School Dist., 515 U.S. at 655, 115 S. Ct. 2386; Seamons, 84 F.3d at 1236; Graham, 22 F.3d at 994. See also O'Hayre v. Board of Educ., 109 F. Supp. 2d 1284, 1289 (D.Colo.2000).

​

Plaintiff does not allege that Mr. Cornell placed limitations upon his freedom to act at any time. Under these circumstances, as a matter of law, no special relationship existed between Mr. Cornell and Plaintiff.

 
2. State-Created or Enhanced Danger

To determine whether Plaintiff has stated a danger creation/enhancement claim, I apply the Uhlrig factors in light of his allegations.

​

a. First Uhlrig Element Member of Limited and Specifically Definable Group

Plaintiff contends that as a Columbine High School student, he was a member of a limited and specifically identifiable group. Citing Sutton, in which the victim was a deaf, blind, and mute student who required personal assistance and Armijo,*1224 in which the victim was a mentally unstable student with suicidal ideations, Mr. Cornell argues that Plaintiff did not possess some characteristic by which he was identified apart from the shooting or that rendered him vulnerable to the attack. I do not view this element so narrowly here.

​

Based on Harris' and Klebold's writings, videotapes, and statements, apparently the only characteristic necessary to be the object of their rage was to be a Columbine High School student at school on April 20, 1999. Although in this case the group was large, it was specific to Columbine High School students rather than students at any high school. Plaintiff has met the first Uhlrig element.

​

b. Second Uhlrig Element Substantial Risk of Serious, Immediate, and Proximate Harm

Mr. Cornell cannot dispute that the harm at issue was serious. Rather, he contends that the risk facing Plaintiff was neither immediate nor proximate.

Graham teaches that the risk must be of a limited duration, not merely that a person may act violently in the future. Id. at 995. The events that unfolded happened over many months rendering it impossible for Plaintiff to meet this element.

 

c. Third Uhlrig Element Obvious and Known Risk

The risk framed by Plaintiff's Complaint was that Harris and Klebold would act on their unfulfilled plans to violently harm students at Columbine High School. Pursuant to the allegations that Mr. Cornell: 1) knew for more than a year before the attack that Harris and Klebold talked about blowing up the School; and 2) was aware of the contents of Harris' website well before April 20, 1999, I conclude that Plaintiff has met this element.

 
d. Fourth Uhlrig Element Conscious Disregard of an Obvious or Known Risk

This element requires that Mr. Cornell was subjectively aware of the risk at hand. See Uhlrig, 64 F.3d at 573 n. 8 (recklessness requires proof that defendant focused on the risk and deliberately assumed or acquiesced in such risk); Archuleta v. McShan, 897 F.2d 495, 499 (10th Cir.1990) ("[R]ecklessness includes an element of deliberatenessa conscious, acceptance of a known, serious risk."). Pursuant to the allegations as to Mr. Cornell, I again conclude that Plaintiff has met this element.

 

e. Fifth Uhlrig Element "conscience shocking" conduct

Under this element, I assess conduct from two perspectivesboth of which occurred under non-emergency circumstances.

Assuming Plaintiff's allegations as true, see Tonkovich, 159 F.3d at 510, Mr. Cornell ignored ominous information about Harris and Klebold. As discussed in Lewis, 523 U.S. 833, 118 S. Ct. 1708, where circumstances require instant judgment, no substantive due process claim can lie unless the officials' conduct was "tainted by an improper or malicious motive." Id. at 855, 118 S. Ct. 1708. Where as here, however, Mr. Cornell had the time to truly deliberate, something less than intent to harm, such as calculated indifference, may shock the conscience of the Court. See id; Radecki, 146 F.3d 1227.

​

*1225 In this case, there was no emergency. Pursuant to Plaintiff's allegations, Mr. Cornell had ample time to consider the information he allegedly possessed about Harris and Klebold. See Lewis, 523 U.S. 833, 118 S. Ct. 1708. I evaluate the factual allegations set out previously as measured against the circumstances in relevant cases in determining whether Mr. Cornell's conduct is "conscience shocking."

​

In Martinez, 77 F.3d 1253, a teacher who allegedly called a twelve-year-old student a prostitute in front of her class over a period of several weeks and allowed other students to do the same engaged in an obvious abuse of authority and flagrant misconduct. Yet this conduct was not shocking to the Court's conscience. In Garcia v. Miera, 817 F.2d 650 (10th Cir. 1987), cert. denied, 485 U.S. 959, 108 S. Ct. 1220, 99 L. Ed. 2d 421 (1988) a nine-year-old student was held upside down by a teacher and beaten on the legs with a split wooden paddle by the principal resulting in bleeding, a welt, a two-inch cut, and a permanent scar. This behavior was held to be conscience shocking.

​

As illustrated by these cases, whether or not a defendant's conduct was found shocking to the conscience of the Court, there was affirmative conduct by a defendant that directly and immediately resulted in severe physical or psychological injuries to another person or allowed such harm to occur or to continue. Here, however, Plaintiffs' claims are based on allegations that Mr. Cornell failed to anticipate and prevent future behavior by Harris and Klebold. I conclude that Mr. Cornell's alleged actions of omission fail to rise to the level of "conscience shocking" in a constitutional sense. See Lewis,523 U.S. at 852-53, 118 S. Ct. 1708; Radecki, 146 F.3d 1227.

Because Plaintiff has not met all of the Uhlrig factors, Mr. Cornell is entitled to dismissal of Claim Three.

 
B. Claim Four42 U.S.C. § 1983Deprivation of right to life, liberty, and personal security against Jefferson County School District R-1, for inadequate policies, customs, practices, and training

Pursuant to Claim Four, Plaintiff asserts that the Jefferson County School District R-1 relied on various District R-1 policymakers in violating his substantive due process rights by failing to formulate adequate policies, customs, practices and training to Columbine High School staff. See C/O ¶ 191.

​

Under Monell v. New York City Dep't. of Social Serv., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), the School District may not be held liable pursuant to § 1983 unless one of the School District's employees committed a constitutional violation and a School District policy or custom was the moving force behind the constitutional deprivation. See id. at 695, 98 S. Ct. 2018. See also, Myers v. Oklahoma Cty. Bd. of County Comm'rs, 151 F.3d 1313, 1317 (10th Cir.1998). This rule applies to failure to train claims. See Myers, 151 F.3d at 1317.

​

Plaintiff has not made the requisite predicate showing of an underlying constitutional violation. Therefore, Plaintiff cannot meet this element. In addition, Harris and Klebold were the "moving force" behind Plaintiff's injuries. Plaintiff's allegations that his injuries could have been avoided if there were different policies in place or adequate training fail to state a claim upon which relief may be granted.

 
*1226 VII.

Claims against Municipal Defendants

A. Claim Seven42 U.S.C. § 1983 Municipal Liability against Defendants The Board of County Commissioners of the County of Jefferson, Colorado, and The Sheriffs Department of the County of Jefferson, Colorado, based on acts of policymaker Sheriff Stone in his official capacity-deliberate indifference to deprivation of civil rights

Plaintiff alleges that the Municipal Defendants are liable under § 1983 for Sheriff Stone's acts on April 20, 1999 made in his official capacity as final policymaker in law enforcement matters for the Board and the Sheriff's Department. Claim Seven arises from the lack of rescue attempts despite assurances that help was on the way.

In Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), the Supreme Court enunciated the rule for imposing liability on a governmental entity:

​

a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.

Id. at 695, 98 S. Ct. 2018. The policy need not be formal or written. Id. at 691, 98 S. Ct. 2018. See also Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970).

​

A single act of an employee may be imposed on a local governmental entity if the employee possesses final authority to establish policy with respect to the challenged action. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 736-38, 109 S. Ct. 2702, 105 L. Ed. 2d 598 (1989); City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S. Ct. 915, 99 L.Ed.2d 107(1988); Pembaur v. City of Cincinnati, 475 U.S. 469, 481-84, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986); Ware v. Unified Sch. Dist. No. 492,902 F.2d 815, 817 (10th Cir.1990). Therefore, a local governmental entity such as the Board and the Sheriff's Department may be held liable for decisions made by officials who have authority under state law to speak as final decisionmakers on the particular issue. See Jett, 491 U.S. at 737, 109 S. Ct. 2702.

​

It is alleged that Sheriff Stone was a final policymaker in law enforcement matters for Jefferson County, represented by the Board, and for the Sheriff's Department. See C/O ¶ 220. Liability does not attach to the governmental entity pursuant to § 1983 for the acts of its employees, including those with final authority, unless a plaintiff can show: 1) that a municipal employee committed a constitutional violation; and 2) a municipal policy or custom was the moving force behind the constitutional deprivation. Myers v. Oklahoma County Bd. of County Comm'rs, 151 F.3d 1313, 1317 (10th Cir.1998). The policy need not be formal or written. Id. at 691, 98 S. Ct. 2018. See also Adickes, 398 U.S. at 167-68, 90 S. Ct. 1598. Proving moving force requires showing a "direct causal link between the action and deprivation of federal rights." Lopez v. LeMaster, 172 F.3d 756, 763 (10th Cir.1999).

 
1. Constitutional Violation

Plaintiff has not made the requisite predicate showing of an underlying constitutional violation as to Claims One, Five and Six. Therefore, Plaintiff cannot meet this element. Assuming, however, a constitutional violation, I assess the second element also.

​

*1227 2. Moving Force

A governmental entity or its policy makers may be liable pursuant to § 1983 if the entity's policies or customs are the cause or the "moving force" behind the underlying constitutional deprivation. See Myers, 151 F.3d at 1317. A governmental entity "`is only liable when it can be fairly said that the city itself is the wrongdoer.'" Collins v. City of Harker Heights, Tex., 503 U.S. 115, 122, 112 S. Ct. 1061, 117 L. Ed. 2d 261 (1992). It is only when the "execution of a government's policy or custom ... inflicts the injury" that the governmental entity or its policy makers may be held liable under § 1983. Monell, 436 U.S. at 694, 98 S. Ct. 2018.

Here, Harris and Klebold were the "moving force" behind Plaintiff's injuries. Plaintiff's allegations that his injuries could have been avoided if there were different policies in place or adequate training do not state a viable claim.

 
B. Claim Eight42 U.S.C. § 1983 Municipal Liability against Defendants The Board of County Commissioners of the County of Jefferson, Colorado, and The Sheriff's Department of the County of Jefferson, Colorado, based on acts of policymaker Sheriff Stone in his official capacity-failure to prevent witnessed constitutional violations

Plaintiff alleges that the Municipal Defendants are liable under § 1983 for Sheriff Stone's acts, in his official capacity as final policymaker in law enforcement matters for the Board and the Sheriff's Department arising from his failure and refusal to correct or remedy his subordinates' wrongful disregard of the risk on April 20, 1999 that he would be shot and injured, despite assurances of help. See C/O ¶ 229. Allegedly, this failure constituted the approval of the Municipal Defendants as a matter of municipal policy or custom.

​

As set out above, Plaintiff has not met the requisite predicate showing of an underlying constitutional violation concerning: 1) Sheriff Stone's alleged failure to correct or remedy the responding Sheriff Defendants' wrongful acts; or 2) that the responding Sheriff Defendants violated Plaintiff's constitutional rights. And, again, Harris and Klebold were the moving force behind Plaintiff's injuries. The Municipal Defendants are entitled to Rule 12(b) (6) dismissal of Claim Eight.

 
VIII.

Claims against Gun Show Defendants

A. Claim Nine Negligence against Defendants Ronald F. Hartman and James R. Washington

Plaintiff alleges that at the Gun Show, Defendants Hartman and Washington sold Klebold the shotgun that either Harris or Klebold shot him with in the Library on April 20, 1999. See C/O ¶¶ 21, 232. In addition, he alleges that these Defendants instructed Klebold how to cut down the barrel of the shotgun. Id. at ¶ 232. Based on these allegations, Plaintiff alleges that Mr. Hartman and Mr. Washington were negligent in enabling Klebold to purchase the shotgun. In his response brief, Plaintiff characterizes Claim Nine as a negligent entrustment claim. In Colorado, negligent entrustment is a part of the general law governing liability for negligence. See Casebolt v. Cowan, 829 P.2d 352, 355 (Colo.1992).

​

Under Colorado law, to recover for the negligent conduct of another, a plaintiff must establish: 1) the existence of a legal duty owed to the plaintiff by the defendant; 2) breach of that duty; 3) injury to the plaintiff; and 4) actual and proximate *1228 causation. Leake v. Cain, 720 P.2d 152, 155 (Colo.1986).

​

1. Duty

"The court determines, as a matter of law, the existence and scope of [any] duty...." Metropolitan Gas Repair Service, Inc. v. Kulik, 621 P.2d 313, 317 (Colo.1980). See Perreira v. State, 768 P.2d 1198, 1208 (Colo.1989). If the law imposes no duty of care under the circumstances, a negligence claim cannot be sustained even though injury may have occurred. University of Denver v. Whitlock, 744 P.2d 54 (Colo.1987).

​

The question whether a duty should be imposed in a particular case is "essentially one of fairness under contemporary standardswhether reasonable persons would recognize a duty and agree that it exists." Taco Bell, Inc. v. Lannon, 744 P.2d 43, 46 (Colo.1987). Generally, a person does not have a duty to prevent a third person from harming another unless a special relationship exists between the defendant and the wrongdoer or between the defendant and the victim. Leake v. Cain, 720 P.2d 152 (Colo.1986) citing Restatement (Second) of Torts § 315. See also Solano v. Goff, 985 P.2d 53 (Colo.App. 1999).

 
2. Special Relationship between Defendants and Plaintiff or Harris and Klebold

Special relationships are predicated on "some definite relation between the parties of such a character that social policy justifies the imposition of a duty to act." Whitlock, supra, 744 P.2d at 58. Under Colorado law, the issue of a duty to foresee the criminal behavior of a third party has been analyzed in three general areas: 1) buyer and seller; 2) owner and patron (premises liability); and 3) prisoner and law enforcement agency or patient and mental health care provider. In all three areas, whether a defendant owes a duty of care to prevent injury to others is a threshold question of law. Smith v. City and County of Denver, 726 P.2d 1125 (Colo.1986).

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Under Plaintiff's allegations, I analyze the relationship between a buyer and seller to determine if there was a special relationship between these Defendants and Harris and Klebold warranting imposition of a duty of care.

​

In Hilberg v. F.W. Woolworth Co., 761 P.2d 236 (Colo.App.1988), overruled in part on other grounds, Casebolt v. Cowan, 829 P.2d 352, the only Colorado case addressing gun sellers and buyers, a child was injured by a rifle which was given to a friend by the friend's father. An action was brought against the manufacturer and the retailer. The Hilbergs pursued an appeal from summary judgment denying their claims of negligence per se, negligent entrustment and negligent failure to exercise due care with respect to Defendants F.W. Woolworth Company and its employee, William Jack Myers. Plaintiff also appealed the dismissal of the claims of negligent failure to exercise due care and strict liability in tort against Defendant Savage Industries, Inc., the manufacturer of the .22 caliber rifle sold by a Woolworth employee to Mr. Johnson for use by Mr. Johnson's 14-year-old son, Jeff. Plaintiff Robert P. Hilberg, a minor child, was injured when he was accidentally shot by his friend Jeff Johnson with the .22 rifle. F.W. Woolworth and its agents knew that Mr. Johnson intended to give the rifle to his minor son as a Christmas present.

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The Hilbergs argued that reasonable and due care should have been taken particularly when the employees who sold the firearm knew, or had reason to know, that Mr. Johnson's purchase of the rifle was a Christmas present for his minor son. In *1229 finding no special relationship and, therefore, no duty, the Court concluded:

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Generally, if a person should reasonably foresee that his act, or failure to act will involve an unreasonable risk of harm to another, there arises a duty to avoid such harm; however, there is no duty to prevent a third person from harming another absent a special relationship.

Hilberg, 761 P.2d at 239 citing Leake v. Cain, 720 P.2d 152.

​

Plaintiff alleges that Mr. Hartman and Mr. Washington not only sold the gun to Harris and Klebold by means of a "straw man purchase" knowing them to be minors, but also advised them how to saw off the barrel of the shotgun. Thus, this case is distinguishable from Hilberg because the Hilberg defendants had "no specific knowledge concerning the competence, maturity, judgment or propensity for carelessness or recklessness of either [the purchaser] or his son." See Hilberg, 761 P.2d at 238-39.

The Colorado Supreme Court has stated that:

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One who supplies directly or through a third person a chattel for the use of another whom the supplier know or has reasons to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

​

Casebolt v. Cowan, 829 P.2d 352, 357 (Colo. 1992) (quoting Restatement (Second) of Torts § 390 (1965)).

Defendant Hartman contends that the theory of negligent entrustment does not apply to a legal sale of merchandise. Under the circumstances alleged, I disagree. Colorado courts have acknowledged that the theory of negligent entrustment as set out in Restatement (Second) of Torts § 390 applies to anyone who supplies a chattel for the use of another, including sellers. See Peterson v. Halsted, 829 P.2d 373, 378 (Colo.1992).

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Defendant Washington contends that Harris' and Klebold's criminal acts were an intervening cause of Plaintiff's injures. See Washington Brief, p. 22. I again disagree under the circumstances alleged.

Where the circumstances make it likely that a defendant's negligence will result in injuries to others and where this negligence is a substantial factor in causing the injuries sustained, proximate causation is satisfied. The intervening or superseding act of a third party, in this case Harris and Klebold, including a third-party's intentionally tortious or criminal conduct does not absolve a defendant from responsibility if the third-party's conduct is reasonably and generally foreseeable. See Ekberg v. Greene, 196 Colo. 494, 496-97, 588 P.2d 375, 376-77(1978).

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There is no question that Harris and/or Klebold injured Plaintiff. The issue is whether Harris' and Klebold's intentional criminal acts constitute a superseding cause of the harm inflicted by them, thus relieving Defendant Washington of liability.

A superseding cause exists when: 1) an extraordinary and unforeseeable act intervenes between a defendant's original tortious act and the injury or harm sustained by plaintiffs and inflicted by a third party; and 2) the original tortious act is itself capable of bringing about the injury. Just as foreseeability is central to finding that a duty is owed, it is also "the touchstone of proximate cause" and of the superseding cause doctrine. Walcott v. Total Petroleum, Inc., 964 P.2d 609(Colo.App.1998). See also Smith v. State Compensation Ins. Fund, 749 P.2d 462, 462-63 (Colo.App.1987); Ekberg, 588 P.2d *1230 at 376. An intentionally tortious or criminal act of a third party does not break the causal chain if it is reasonably foreseeable. Smith, 749 P.2d at 464, Ekberg, 588 P.2d at 376. A superseding cause relieves the original actor of liability when "the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor's conduct." Webb v. Dessert Seed Co., 718 P.2d 1057, 1062-63 (Colo. 1986) (quoting Restatement (Second) of Torts § 442B).

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Here, Defendants Washington and Hartman are alleged to have provided Klebold with a shotgun and advised him how to saw off the barrel. Plaintiff alleges that Harris and/or Klebold shot him in the head with the shotgun provided to Klebold by these Defendants. Thus, to determine whether Harris' and Klebold's intervening criminal actions relieved Mr. Washington and Mr. Hartman of liability, I determine whether their actions were within the scope of the risk created by their conduct.

Restatement (Second) of Torts, § 442A provides that:

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[w]here the negligent conduct of the actor creates or increases the foreseeable risk of harm through the intervention of another force, and is a substantial factor in causing the harm, such intervention is not a superseding cause.

Id.

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Although the question is a close one, applying these principles to the allegations in this case, I conclude that the harm inflicted by Harris and Klebold was within the scope of the risk created by Defendants' conduct in providing Klebold with a shotgun and advising Harris and Klebold how to saw off the barrel of the gun. It is alleged that the Defendants knew that Harris and Klebold were minors and they sought Defendants' advice on how to alter the shotgun by shortening the length of the barrel.

​

No Colorado case has addressed whether a third party's intervening acts relieve an actor of liability. In Cowart v. Kmart Corp., 20 S.W.3d 779 (Tex.App.2000), cert. denied, Sept. 28, 2000, the survivors of a person (Cowart) killed in a shooting incident brought a wrongful death action against Kmart who sold ammunition to a 17 year old minor that another person (Bell) used to shoot and kill Plaintiff's decedent. Pursuant to a summary judgment motion, Kmart asserted that Bell's criminal conduct was an intervening and superseding cause of Cowart's death. In granting summary judgment, the Court concluded that Bell's conduct was a superseding cause of Cowart's death because Kmart could reasonably assume that a 17 year old minor was old enough to appreciate the danger of misuse of ammunition. See id. at 784. Also, the Court held that Kmart: 1) could reasonably assume that a minor would obey the laws; and 2) could not foresee that its sale of ammunition to a minor would result in Bell's negligent or intentional misuse of the ammunition. Id. Significantly, there was no evidence of any fact that should have alerted Kmart that the minor would put the ammunition in the hands of someone who would engage in criminal conduct. Id. at 786. Thus, there was no evidence that Kmart could foresee that the ammunition would be used for a criminal purpose. Id.

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Cowart is distinguishable from this case. I must accept as true that Mr. Washington and Mr. Hartman: 1) provided the shotgun to Klebold; 2) instructed Harris and Klebold how to saw off the shotgun barrel; and 3) knew that Harris and Klebold were minors. See Maher v. Durango Metals, 144 F.3d at 1304. At this stage of the case and under these circumstance, in contrast to Cowart, I conclude that Defendants could not reasonably assume that Harris and Klebold *1231 would obey the laws and not misuse the shotgun. Consequently, although the precise criminal acts committed by Harris and Klebold may not have been foreseeable, it was reasonably foreseeable that the Defendants' conduct would result in the intentional misuse of the shotgun. Thus, Harris' and Klebold's conduct does not, as a matter of law, relieve Mr. Washington and Mr. Hartman of liability for Plaintiff's injuries. Defendants Washington and Hartman are not entitled to dismissal of Claim Nine.

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B. Claim TenNegligence against Defendant James D. Tanner d/b/a Tanner Hunting and Fishing Shows f/k/a Tanner Gun Shows

1. Facts

Plaintiff alleges that Mr. Tanner operates gun shows in the Denver metropolitan area at which all manner of firearms and other weapons are sold. See C/O ¶ 235. In the winter of 1998, Mr. Tanner conducted a gun show at the Denver Merchandise Mart at which the shotgun used to injure Plaintiff was sold. See id. at ¶ 95. According to the Complaint, Mr. Tanner failed to impose reasonable security precautions to guard against the foreseeable risk of minors purchasing and/or obtaining firearms at the gun show. See C/O ¶ 236.

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2. Analysis

Again, under Colorado law, to recover for the negligent conduct of another, a plaintiff must establish: 1) the existence of a legal duty owed to the plaintiff by the defendant; 2) breach of that duty; 3) injury to the plaintiff; and 4) actual and proximate causation. Leake v. Cain, 720 P.2d 152, 155 (Colo.1986).

 

a. Duty

"The court determines, as a matter of law, the existence and scope of [any] duty...." Metropolitan Gas Repair Service, Inc. v. Kulik, 621 P.2d 313, 317 (Colo. 1980). See Perreira v. State, 768 P.2d 1198, 1208 (Colo.1989). If the law imposes no duty of care under the circumstances, a negligence claim cannot be sustained even though injury may have occurred. University of Denver v. Whitlock, 744 P.2d 54 (Colo.1987). Generally, a person does not have a duty to prevent a third person from harming another unless a special relationship exists between the defendant and the wrongdoer or between the defendant and the victim. Leake v. Cain, 720 P.2d 152 (Colo.1986) citing Restatement (Second) of Torts § 315. See also Solano v. Goff, 985 P.2d 53 (Colo.App.1999).

 

i. Special Relationship between Defendant Tanner and Plaintiff or Harris and Klebold

Plaintiff does not allege the existence of a special relationship between Defendant Tanner and himself or Harris and Klebold. Therefore, I conclude that there was no special relationship among these persons.

 
b. Causation

Defendant Tanner states that in the absence of a special relationship, he owed Plaintiff no duty. For purposes of further analysis, I assume Defendant Tanner owed a duty of care to Plaintiff. Even assuming a duty, Defendant Tanner argues that he was not the legal cause of Plaintiff's injuries. I agree.

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In the context of Plaintiff's Claim Ten, Plaintiff's injuries were inflicted by Dylan Klebold and/or Eric Harris. See C/O ¶ 21. To conclude that Defendant Tanner's conduct produced Plaintiff's injuries requires connecting "if ... then ..." propositions which are speculative at best.

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Alleged tortious conduct must also be a "substantial factor" in producing the injury. See North Colo. Medical Ctr. v. Committee on Anticompetitive Conduct, 914 P.2d 902, 908 (Colo.1996); Smith v. *1232 State Compensation Ins. Fund, 749 P.2d 462, 464 (Colo.App.1987). If an event other than the defendant's alleged conduct appears predominant, the defendant's conduct cannot be a substantial factor. North Colo. Medical Ctr., 914 P.2d at 908; Smith v. City and County of Denver, 726 P.2d 1125 (Colo.1986).

​

"Colorado's proximate cause rule is intended to ensure that casual and unsubstantial causes do not become actionable." North Colorado Medical Center, 914 P.2d at 908. Even if Mr. Tanner's actions contributed in some way to Plaintiff's injuries, as to Claim Ten Harris' and Klebold's actions on April 20, 1999 were the predominant, if not sole, cause of his injuries. As a result, as a matter of law, Defendant Tanner's conduct was not a legal cause of Mr. Ireland's injuries.

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Accordingly, IT IS ORDERED that:

1. Defendants' Fed.R.Civ.P. 12(b) (6) motion to dismiss Claim One is GRANTED;

2. Defendants' Fed.R.Civ.P. 12(b) (6) motion to dismiss Claim Two is GRANTED;

3. Defendant's Fed.R.Civ.P. 12(b) (6) motion to dismiss Claim Three is GRANTED;

4. Defendants' Fed.R.Civ.P. 12(b) (6) motion to dismiss Claim Four is GRANTED;

5. Defendants' Fed.R.Civ.P. 12(b) (6) motion to dismiss Claim Five is GRANTED;

6. Defendants' Fed.R.Civ.P. 12(b) (6) motion to dismiss Claim Six is GRANTED;

7. Defendants' Fed.R.Civ.P. 12(b) (6) motion to dismiss Claim Seven is GRANTED;

8. Defendants' Fed.R.Civ.P. 12(b) (6) motion to dismiss Claim Eight is GRANTED;

9. Defendants' Fed.R.Civ.P. 12(b) (6) motion to dismiss Claim Nine is DENIED;

10. Defendant's Fed.R.Civ.P. 12(b) (6) motion to dismiss Claim Ten is GRANTED;

11. Claim One against Defendant Sheriffs Beckham and Stone and the Investigating Defendants, in their individual capacities, is DISMISSED;

12. Claim Two against Defendant Sheriffs Beckham and Stone, in their official capacities, and the Jefferson County Sheriff's Department is DISMISSED;

13. Claim Three against Defendant Cornell, in his individual capacity is DISMISSED;

14. Claim Four against the Jefferson County School District R-1 is DISMISSED;

15. Claim Five against the Command Defendants, in their individual capacities, is DISMISSED;

16. Claim Six against the Command Defendants, in their individual capacities, is DISMISSED;

17. Claim Seven against the Board of County Commissioners of the County of Jefferson, Colorado and The Sheriff's Department of the County of Jefferson, Colorado is DISMISSED;

18. Claim Eight against the Board of County Commissioners of the County of Jefferson, Colorado and The Sheriff's Department of the County of Jefferson, Colorado is DISMISSED;

19. Claim Ten against Defendant James D. Tanner d/b/a Tanner Hunting and Fishing Shows f/k/a Tanner Gun Show is DISMISSED; and

20. the Defendants whose claims are dismissed herein are GRANTED COSTS *1233 upon submission of a bill of costs within 10 days of the date judgment enters.