e. Uhlrig TestFifth 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 injury to 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. The Uhlrig Court acknowledged, however, that the level of culpability that must be shown under the "shocks the conscience" standard is difficult to define.

​

County of Sacramento v. Lewis, 523 U.S. 833, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998) provides a gauge to assess conduct under this difficult standard. The Supreme Court cast the Uhlrig principles into a sound framework, grounded in common sense, for analyzing those myriad situations involving law enforcement and governmental workers deployed in emergency situations. The Court reiterated the important principle that rejects "the lowest common denominator of customary tort liability as any mark of sufficiently shocking conduct" and held "that the Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process." Lewis, 523 U.S. at 848-49, 118 S. Ct. 1708. The Court then observed that conscience-shocking behavior is most likely to be found "at the other end of the culpability spectrum"that is, where there is an intent to do harm that is not justified by any government interest. Id. at 849, 118 S. Ct. 1708. The Lewis Court further recognized that in the middle range of the culpability spectrum, where the conduct is more than negligent but less than intentional, there may be some conduct that is egregious enough to state a substantive due process claim. See id. at 849-50, 118 S. Ct. 1708.

​

Within this middle range, Lewis directs an examination of the circumstances surrounding the conduct at issue and the governmental interests at stake. The Lewis Court then points the inquiry to the official's opportunity for deliberation while drawing helpful analogies to the Eighth Amendment prison context. See id. at 850-55, 118 S. Ct. 1708 citing, inter alia, Whitley v. Albers, 475 U.S. 312, 106 S. Ct. 1078, 89 L. Ed. 2d 251 (1986); City of Revere, 463 U.S. 239, 103 S. Ct. 2979, 77 L. Ed. 2d 605; Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251. The marked differences between, for instance, a normal custodial situation in a prison and a violent disturbance in a prison demonstrates "why the deliberate indifference that shocks in the one case is less egregious in the other." Lewis at 852-53, 118 S. Ct. 1708. The "deliberate indifference" standard is only utilized when actual deliberation is practical. Id.

​

The Court looked to the level of culpability required for an Eighth Amendment violation in the prison context to the level required for substantive due process liability, instructing that the analysis rests upon:

​

the luxury enjoyed by prison officials of having time to make unhurried judgments, upon the chance for repeated reflection, largely uncomplicated by the pulls of competing obligations. When *1130 such extended opportunities to do better are teamed with protracted failure even to care, indifference is truly shocking. But when unforeseen circumstances demand an officer's instant judgment, even precipitate recklessness fails to inch close enough to harmful purpose to spark the shock that implicates "the large concerns of the governors and the governed."

​

Id. at 853-54, 118 S. Ct. 1708 quoting Daniels, 474 U.S. at 332, 106 S. Ct. 662. Lewis specifically analogized a prison official's response in a riot situation to a police officer's conduct in the high speed chase before it. Both situations require the officer's instant judgment, and, accordingly, no substantive due process claim can lie unless the defendant official's conduct was unjustified by any government interest and was "tainted by an improper or malicious motive." Id. at 855, 118 S. Ct. 1708.

Therefore, in assessing the constitutionality of law enforcement actions, I must distinguish between emergency action and actions taken after opportunity for reflection. Appropriately, I must give great deference to the decisions that necessarily occur in emergency situations. With that caveat in mind, I look to the nature of the official conduct on the spectrum of culpability that has tort liability at one end; conduct in which the state actor intended to cause harm and in which the state lacks any justifiable interest on the other. In emergency situations, only conduct that reaches that far point will shock the conscience and result in constitutional liability. Where the state actor has the luxury to truly deliberate about the decisions he or she is making, something less than unjustifiable intent to harm, such as calculated indifference, may suffice to shock the conscience. See also Radecki v. Barela, 146 F.3d 1227 (10th Cir.1998), cert. denied, 525 U.S. 1103, 119 S. Ct. 869, 142 L. Ed. 2d 771 (1999) (sheriff's deputies had no time for deliberation in making instantaneous judgment call in suddenly explosive law enforcement situation; therefore no § 1983 claim based on substantive due process violation).

​

In determining this question, I am also mindful that courts must be "`reluctant to expand the concept of substantive due process because guideposts for responsible decision-making in this unchartered area are scarce and open-ended.'" Washington v. Glucksberg, 521 U.S. 702, 720, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997) quoting Collins, 503 U.S. at 125, 112 S. Ct. 1061. Courts must "exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of [judges]." Glucksberg, 521 U.S. at 720, 117 S. Ct. 2258. See also Lewis, 523 at 842, 118 S. Ct. 1708. Also, there is concern that § 1983 liability not replace state tort law and the need for deference to local policy-makers in making decisions impacting upon public safety. See Uhlrig, 64 F.3d at 573. Moreover, the Due Process Clause "is not a guarantee against incorrect or ill-advised [government] decisions." Collins, 503 U.S. at 129, 112 S. Ct. 1061.

​

Plaintiffs allege that Deputy Gardner learned of the attack on Columbine at approximately 11:15 a.m. on April 20, 1999. C/O ¶ 16. When Deputy Gardner arrived at the senior parking lot approximately three minutes later, he spotted one of the attackers, likely Klebold, near an entrance to the school. Id. at ¶ 23. After firing several shots at Deputy Gardner, Klebold entered the school. Id. at ¶ 24. From Plaintiffs' allegations, I cannot determine the precise time that elapsed between the time Harris and Klebold entered the school building until they entered the Library and attacked the Library Plaintiffs. It is apparent from the allegations, however, that the elapsed time *1131 was mere minutes. See C/O ¶¶ 47-49. During these minutes, the Deputy Sheriff Defendants heard gunshots and explosions inside the school. C/O ¶ 27. These circumstances are directly analogous to the prison riot discussed in Lewis during which state officials were forced to make "split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving." See Lewis, 523 U.S. at 853, 118 S. Ct. 1708. Under such circumstances, unless an intent to harm a victim is alleged, there is no liability under the Fourteenth Amendment redressable by an action under § 1983. See id.

​

Plaintiffs allege that the individual Sheriff Defendants "acted recklessly and in conscious and unreasonable disregard to the serious and immediate risk to the students in the library...." C/O ¶ 71. They allege further that the individual Sheriff Defendants' actions, and failures to act, constitute deliberate indifference to, and willful and callous disregard of, the constitutional rights ... of [the Library Plaintiffs]. Id. at ¶ 72. Plaintiffs do not allege that these Defendants acted with an intent to harm Plaintiffs. Therefore, there is no liability under the Fourteenth Amendment redressable by § 1983 action. See Lewis, 523 U.S. at 853, 118 S. Ct. 1708.

​

Assuming, arguendo, the proper standard were pleaded, under the totality of the circumstances facing the Deputy Sheriff Defendants on the morning of April 20, 1999, pursuant to Lewis and its progeny, Claim One may not be maintained.

It is beyond cavil that the Deputy Sheriff Defendants faced an unprecedented situation on the morning of April 20, 1999. As students lay wounded and dying outside the school, masses of students were running from inside where gunshots and explosions could be heard. Unlike a high-speed vehicle chase, the exact nature and extent of this criminal attack was unknown to the Deputy Sheriff Defendants. The decisions made by these Defendants in the first moments of the attack came under shocking, violent, and "rapidly evolving" circumstances leaving no opportunity for "unhurried judgments," "repeated reflection," or the "luxury of a second chance." See Lewis at 848, 852-53, 118 S. Ct. 1708.

​

Citing cases from foreign jurisdictions, Plaintiffs contend that the Lewis formulation is inapplicable, even to acts taken in an emergency situation, when the police officers had time to deliberate before performing the alleged unconstitutional act. See e.g., Feist v. Simonson, 222 F.3d 455, 464 (8th Cir.2000); Helseth v. Burch, 109 F. Supp. 2d 1066 (D.Minn.2000) (Helseth I); Schieber v. City of Philadelphia, 1999 WL 482310 (E.D.Pa.1999). Feist and Helseth I were overruled in Helseth v. Burch, 258 F.3d 867 (8th Cir.2001) (Helseth II) and Schieber is distinguishable.

​

In Feist and Helseth I, cases involving high-speed police vehicle chases, the respective courts rejected the Lewis "intent to harm" standard because after the initial decision to give chase, the police officers had time to deliberate. See Feist I, 222 F.3d at 464; Helseth I, 109 F. Supp. 2d at 1076. On appeal, the Helseth II court reversed the lower court's holding and overruled explicitly Feist. See Helseth II, 258 F.3d at 871. Relying in part on Trigalet v. City of Tulsa, 239 F.3d 1150, 1155 (10th Cir.2001), the Helseth II court stated:

[T]o reject intent-to-harm as the governing standard whenever a judge or a jury could say, with the wisdom of hindsight, that an officer engaged in a high-speed pursuit had `ample time to deliberate' ... produces a standard that eviscerates the holding of Lewis [.][I]t also gives too little recognition to the Court's other bases for that holding-its historical reluctance "to expand the concept of substantive *1132 due process," ... [and] its recognition that police officers confronting high-speed lawlessness are "subject to countervailing [law] enforcement considerations" .... Lewis, 523 U.S. at 855, 118 S. Ct. 1708.

Id. 870-71. (emphasis added). This conclusion is buttressed by Whitley v. Albers, 475 U.S. 312, 320, 106 S. Ct. 1078, 89 L. Ed. 2d 251 (1986) which adopted the intent-to-harm standard for a two-hour prison riot.

​

Plaintiffs also rely on Schieber, in which police officers failed to forcibly enter the apartment from which a woman's screams of help had been reported by neighbors. The next day, the woman was found dead on the floor of the apartment. Despite there being no evidence that the police had other immediate calls or that they had to leave the apartment building for any other reason, they spent less than five minutes at the scene. There, the officers had the opportunity but failed to truly deliberate. The Court did not apply the "intent to harm" formulation and allowed the § 1983 claim to proceed.

​

Under Plaintiffs' reasoning, law enforcement officers who take minutes rather than seconds to decide on a course of action, have the time deliberate. Thus, the "intent to harm" formulation applied in Lewis and Radecki would not, per se,apply. I disagree. [T]he measure of what is conscience shocking is no calibrated yard stick....' Lewis, 523 U.S. at 847, 118 S. Ct. 1708. It "merely poin[ts] the way." Id. quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2nd Cir.), cert. denied, 414 U.S. 1033, 94 S. Ct. 462, 38 L. Ed. 2d 324 (1973). Likewise, I do not measure "conscience shocking" by use of a clock. Rather, I adhere to "an appraisal of the totality of facts" presented, see Lewis, 523 U.S. at 850, 118 S. Ct. 1708, to determine whether the Deputy Sheriff Defendants' actions shock the conscience of the court.

​

The Deputy Sheriff Defendants were faced with a volatile emergency situation the scope and nature of which was unprecedented. From the outset, the danger confronting the persons inside and outside of the school was extreme and remained so throughout the attack. These Defendants were required to make multiple, simultaneous decisions in a critically short period of time with no opportunity to "reflect" or "truly deliberate." See Radecki, 146 F.3d at 1232. Thus, Scheiber is factually distinguishable. Moreover, no Tenth Circuit or Supreme Court authority has narrowed the Lewisanalysis in the manner sought by Plaintiffs.

​

In the context of the Columbine attack, as framed by the Plaintiffs' complaint, I conclude that the alleged actions by the Deputy Sheriff Defendants fail to shock the conscience of this court in the constitutional substantive due process sense. See Lewis, 523 U.S. at 852-53, 118 S. Ct. 1708; Radecki, 146 F.3d 1227. Plaintiffs have not met the fifth Uhlrig element.

​

To state a danger creation claim, Plaintiffs must meet all five Uhlrig elements. See Uhlrig, 64 F.3d at 574-75. Because Plaintiffs' allegations do not satisfy all five Uhlrig factors, the Deputy Sheriff Defendants are entitled to dismissal of Claim One.

2. Claim Two Deprivation of Constitutional Right to Life, Liberty and Personal Security under 42 U.S.C. § 1983 Special RelationshipAll Plaintiffs against the Deputy Sheriffs in their individual capacities

Plaintiffs contend that, through the 911 operator, the individual Sheriff Defendants restrained the Library Plaintiffs from leaving the Library by instructing the Library Plaintiffs to stay in the library and await help. Therefore, according to Plaintiffs, pursuant to DeShaney the Deputy Sheriff Defendants stood in a "special *1133 relationship" with the Library Plaintiffs giving rise to the constitutional duty to protect and care for them. See id. at 199-200, 109 S. Ct. 998. I disagree.

According to Plaintiffs, the 911 operator, through teacher Patti Nielson, was in telephone contact with the occupants of the Library. C/O ¶ 51. It is alleged that based on her training and/or responding to the direction of Sheriff Stone or the Deputy Sheriff Defendants, the 911 operator: 1) assured Ms. Nielson that paramedics, fire personnel, and police were en route (a true statement); and 2) instructed Ms. Nielson to "keep everyone low to the floor." Id. Ms. Nielson conveyed this information to the students in the Library, including the Library Plaintiffs. Id. at ¶¶ 53, 58. At the same time, the Deputy Sheriff Defendants prevented the Denver SWAT team and other potential rescuers from entering the Library. Id. at ¶ 54.

Allegedly, as a direct result of these communications, the Library Plaintiffs eschewed escaping through the open exterior library door. Id. at ¶ 53. Shortly thereafter, Harris and Klebold entered the Library and shot several students, including Evan Todd, Jeanna Park, and Valeen Schnurr. The Deputy Sheriff Defendants maintain that these allegations do not amount to restraint as contemplated by DeShaney. I agree.

​

As the DeShaney Court described:

[i]in the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf-through incarceration, institutionalization, or other similar restraint of personal liberty-which is the "deprivation of liberty" triggering the protections of the Due Process Clause....

DeShaney, 489 U.S. at 200, 109 S. Ct. 998. (emphasis added). "The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf." Id.citing Estelle v. Gamble, 429 U.S. at 103, 97 S. Ct. 285.

I hold that the 911 operator's communications to those in the Library do not, as a matter of law, give rise to a special relationship as contemplated by the United States Supreme Court. The "restraint" here is in no way "similar" to incarceration or institutionalization. Nor did an affirmative duty to protect arise from the expressions of intent to help. Even assuming the falsity of the statement that help was on the way, there is no allegation that it was intentionally false. See Uhlrig, 64 F.3d at 575, n. 15. Although Tenth Circuit cases after DeShaney are distinguishable in some respects from this case, they do not alter the fundamental rule of the United States Supreme Court. See Bryson v. City of Edmond, 905 F.2d 1386 (10th Cir. 1990) and Armijo.

​

I also consider whether the individual Sheriff Defendants' alleged conduct giving rise to a special relationship with the Library Plaintiffs shocks the conscience of the Court. See Radecki, 146 F.3d at 1230 citing Uhlrig, 64 F.3d at 572-73. ("[T]he `shocks the conscience'" standard applies to both ["`danger creation' and `special relationship'] suits").

According to Plaintiffs, the "intent to harm" formulation is inapplicable because the individual Sheriff Defendants had ample time to deliberate. I disagree for the reasons set out in section VI(A) (1) (e). Accepting Plaintiffs' allegations as true and construing all reasonable inferences in their favor, see Maher, 144 F.3d at 1304 and Dill, 155 F.3d at 1201, the Deputy Sheriff Defendants' conduct is not conscience shocking in a constitutional sense. I conclude, consequently, that the Deputy *1134 Sheriff Defendants are entitled to dismissal of Claim Two.

3. Claim Three-Failure to Provide Medical Assistance under 42 U.S.C. § 1983 by the Schnurr and Park Plaintiffs against the Unknown Deputy Sheriffs, in their individual capacity

The Schnurr and Park Plaintiffs bring Claim Three for failure to provide medical assistance based on the following allegations:

Within a minute or two after Harris and Klebold left the Library, Valeen Schnurr and Jeanna Park, along with the other students able to walk, escaped the Library through the exterior library entrance. C/O ¶ 59. Ms. Schnurr, who was seriously wounded and bleeding heavily, was assisted to the car of an unknown deputy sheriff who then told her to wait for the next car. C/O ¶ 60. Schoolmates then assisted Ms. Schnurr into a second unknown deputy sheriff's car. The second deputy sheriff then took Ms. Schnurr to a third unknown deputy sheriff's car. Id. This third unknown deputy sheriff handed Ms. Schnurr over to civilians driving a golf cart who transported Ms. Schnurr to a vehicle operated by a police officer. Id. This police officer recognized the seriousness of her condition and provided first aid until an ambulance arrived. Id. Ms. Schnurr lost a great deal of blood during the thirty (30) to forty-five (45) minutes she was required to wait for care. Id.Upon arrival at the hospital, medical personnel and attendants were unsure she would survive. Id.

​

Jeanna Park was assisted to a deputy sheriff's car by her sister Kathy Park behind which the sisters hid. Id. Thereafter, an unknown deputy sheriff took them to another area without administering first aid. Jeanna Park, the last of the wounded taken to a hospital, received no medical assistance from the Sheriff's Department during the time she waited for an ambulance. Id.

​

Pursuant to Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (state required to provide adequate medical care to prison inmates), City of Revere, 463 U.S. 239, 103 S. Ct. 2979, 77 L. Ed. 2d 605 (state required to provide adequate medical care to arrestees), and Garcia v. Salt Lake County, 768 F.2d 303 (10th Cir.1985) (arrestees), Defendants acknowledge that the United States Constitution requires them to provide adequate medical care to those citizens who are taken into police custody or otherwise restrained. See Opening Brief, pp. 28-29. In Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir.1992), the Court held that "the Due Process Clause imposes a duty on state actors to protect or care for citizens in two situations: first, in custodial and other settings in which the state has limited the individuals' ability to care for themselves; and second, when the state affirmatively places a particular individual in a position of danger the individual would not otherwise have faced." The guiding principle of Gregory and other similar cases is that, "when a state takes custody of a person, `the Constitution imposes upon it a corresponding duty' for his protection." See, e.g. Reed, 986 F.2d 1122 citing DeShaney, 489 U.S. at 200, 109 S. Ct. 998.

​

I concluded earlier that the Deputy Sheriff Defendants did not take custody of the Library Plaintiffs through their communications relayed by the 911 operator and Ms. Nielson. It is alleged, however, that unknown Deputy Sheriff Defendants took custody of Ms. Schnurr and Ms. Park after their escape from the Library. They allege that unknown Sheriff Defendants moved them to various locations, allegedly without administering any first-aid despite their multiple gunshot wounds.

​

Under these circumstances, Claim Three as alleged states a claim against the unknown Deputy Sheriff Defendants for failure *1135 to provide medical care to Ms. Schnurr and Ms. Park.

​

B. Construed Claims One, Two, and Three against the Municipal Defendants based on Inadequate Policies, Customs, and/or Training

Claims One, Two, and Three allege that the conduct of the Deputy Sheriff Defendants violated the Plaintiffs' constitutional rights pursuant to policies or customs of the Jefferson County Board of County Commissioners and the Jefferson County Sheriff's Department and/or orders of Sheriff Stone, in his official capacity as policymaker for the Sheriff's Department. See C/O ¶¶ 70, 78, 84-85.

In Monell v. Department of Social Serv., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), the Supreme Court held that:

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. 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). 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).

1. Constitutional Violation

As to Claim Three for failure to provide medical assistance, Plaintiffs have stated a claim for an underlying constitutional violation. Plaintiffs have not made the requisite predicate showing of an underlying constitutional violation as to Claims One and Two. Assuming, however, constitutional violations as to Claims One and Two, I assess the second element set out in Myers with respect to Claims One, Two, and Three.

 
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.

Myers illustrates this concept in the context of allegations of the use of excessive force by police officers in responding to a domestic violence incident. The Myers Court held:

​

the plaintiffs' failure to train claims, like their basic excessive force claim against the individual officers, requires a predicate showing that the officers did in fact use excessive force....

Myers, 151 F.3d at 1317. See also Trigalet v. City of Tulsa, 239 F.3d 1150, 1156 (10th Cir.), cert. denied, ___ U.S. ___, 122 S. Ct. 40, 151 L. Ed. 2d 13 (2001). It is only when the "execution of a government's policy or custom ... inflicts the injury" that the governmental entity or its policy *1136 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 the Library Plaintiffs' injuries. Thus, Plaintiffs' allegations in Claims One, Two, and Three, as construed, do not state viable claims for municipal liability against the Jefferson County Board of County Commissioners, the Jefferson County Sheriff's Department, or Sheriff Stone, in his official capacity.

VII.

Qualified Immunity Analysis

As a matter of law, qualified immunity is not available as a defense to municipal liability. See Owen v. City of Independence, 445 U.S. 622, 638, 100 S. Ct. 1398, 63 L. Ed. 2d 673 (1980). Plaintiffs have, however, cleared the initial hurdle of asserting a claim for a constitutional violation in Claim Three for failure to provide medical care but only as to unknown Sheriff Defendants. Because the defense is personal as to them and they have not appeared, I cannot address qualified immunity as to Claim Three. I have also found no constitutional violation as to Claims One and Two. Qualified immunity provides an additional reason why those claims must be dismissed.

​

The question is whether the constitutional rights allegedly violated were clearly established as of April 20, 1999 so that reasonable police officers in the Deputy Sheriff Defendants' position would have understood that their actions were in violation of those rights. See Siegert, 500 U.S. at 232, 111 S. Ct. 1789; Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 516 (10th Cir.1998).

​

In determining whether the law involved was clearly established, I examine the law as it was at the time of the individual Sheriff Defendants' actions. Hilliard v. City and County of Denver, 930 F.2d 1516, 1518 (10th Cir.), cert. denied, 502 U.S. 1013, 112 S. Ct. 656, 116 L. Ed. 2d 748 (1991). "[T]he plaintiff need not show that the specific action at issue has previously been held unlawful," he need only show that the alleged unlawfulness was apparent in light of preexisting law. Id. Ordinarily, for the law to be clearly established, there must be a Supreme Court or Tenth Circuit Court of Appeals decision on point, or the clearly established weight of authority from other circuit courts must have found the law to be as a plaintiff maintains. See Medina, 960 F.2d at 1498; Morfin v. Albuquerque Public Schools, 906 F.2d 1434 (10th Cir.1990).

It is a plaintiff's burden to convince the court that the law was clearly established. In doing so, a plaintiff cannot simply identify a clearly established right in the abstract and allege that a defendant has violated it. Instead, a plaintiff must make a particularized showing that the "contours" of the right are sufficiently clear that a reasonable state actor would understand that what he is doing violates that right. See Patrick v. Miller, 953 F.2d 1240, 1243 (10th Cir.1992) citing Anderson v. Creighton, 483 U.S. at 640, 107 S. Ct. 3034. Although a "precise factual correlation between the then-existing law and the case at-hand is not required," Patrick, 953 F.2d at 1249, the alleged unlawfulness must be "apparent" in light of preexisting law. Anderson, 483 U.S. at 640, 107 S. Ct. 3034. That is, it must be clear to a reasonable state actor that his conduct was unlawful in the situation confronted. Id. If a plaintiff is unable to demonstrate that the law allegedly violated was clearly established, the plaintiff is not allowed to proceed with the suit. Hilliard, 930 F.2d at 1518. Hence, I look to whether it was clearly established in April 1999 within a sufficiently analogous factual setting that the particular alleged conduct of the Deputy Sheriff Defendants was grounds for a *1137 § 1983 violation based on the allegations in Claims One and Two. Pursuant to the allegations in Claim One, Plaintiffs must make a particularized showing that the "contours" of the state-created or enhanced danger doctrine under similar circumstances were clearly established on April 20, 1999. As to Claim Two, Plaintiffs must make a particularized showing that the contours of the special relationship doctrine were clearly established on April 20, 1999.

​

The situation confronted by the Defendant Sheriff Deputies at Columbine on April 20, 1999 was horrific and unprecedented. The state created/enhanced danger and special relationship exceptions to the rule of DeShaney were clearly established. The contours of the rights flowing from these exceptions in the situation confronted were far from clear and provided no notice to reasonable officers that their conduct violated substantive due process rights.

​

Graham, Uhlrig, Armijo, and Sutton all provide reasoned support for the conclusion that the state created/enhanced danger theory does not fit the circumstances here. As to the special relationship theory, Bryson, 905 F.2d 1386 actually points away from liability. I have found no authority for the novel proposition that the 911 operator's statements to those in the Library were sufficient to establish custody as contemplated by DeShaney and its progeny. Indeed, DeShaney, the font of these exceptions, underscores their narrow strictures.

Even assuming Claims One and Two assert violations of substantive due process, qualified immunity necessarily attached because the contours of the rights were blurred and indistinct.

 
VIII.

State Law Claims

A. Claim FourWillful and Wanton ConductAll Plaintiffs against Deputy Sheriffs, individually, and Sheriff Stone, in his individual capacity

The Deputy Sheriff Defendants and Sheriff Stone (Sheriff Defendants) move to dismiss Claim Four: 1) because it is barred by the Colorado Governmental Immunity Act (CGIA), Colo.Rev.Stat. § 24-10-103(4) (a); and 2) pursuant to Fed. R.Civ.P. 12(b) (6) for failure to state a claim upon which relief can be granted.

 
1. Colorado Governmental Immunity Act

As an initial matter, the Sheriff Defendants contend that because Plaintiffs did not allege a specific factual basis for Claim Four, namely, the identity of the individual Sheriff Defendants who committed the alleged actionable conduct, as required by § 24-10-110(5), C.R.S. of the CGIA, this claim must be dismissed pursuant to Rule 12(b) (6).

Pursuant to § 24-10-110(5), adequate allegations are measured as follows:

(a) In any action in which allegations are made that an act or omission of a public employee was willful and wanton, the specific factual basis of such allegations shall be stated in the complaint. (b) Failure to plead the factual basis of an allegation that an act or omission of a public employee was willful and wanton shall result in dismissal of the claim for failure to state a claim upon which relief can be granted.

Id. (emphasis added).

​

When there are disputed issues of fact, a well pleaded claim asserting that an employee acted willfully and wantonly must *1138 await determination at trial on the merits. City of Lakewood v. Brace, 919 P.2d 231 (Colo.1996); Barham v. Scalia, 928 P.2d 1381 (Colo.App.1996); Patel v. Thomas, 793 P.2d 632 (Colo.App.1990). Whether a plaintiff has pleaded sufficient facts to state a claim based upon willful and wanton conduct, however, is a threshold determination to be made by the Court. See Moody v. Ungerer, 885 P.2d 200 (Colo. 1994); Barham, 928 P.2d at 1385-85; Jarvis v. Deyoe, 892 P.2d 398 (Colo.App.1994).

​

In Claim Four, Plaintiffs allege that the "Deputy Sheriffs" owed a duty to the Library Plaintiffs to protect them from Harris and Klebold. See C/O ¶ 91. Further, the "Deputy Sheriffs' acts, and failures to act, as described more fully above, ... enhanced the danger to these plaintiffs posed by the armed and dangerous Harris and Klebold." Id. Plaintiffs allege also that "[t]he Deputy Sheriffs' duty to the [Library Plaintiffs] arose from the Deputy Sheriffs' affirmative acts which induced these plaintiffs to remain in the Columbine High School library in reliance upon promises of immediate police assistance, rather than escape the [L]ibrary before Harris and Klebold arrived." Id.

 
a. 911 Operator Statements

Claim Four is premised, in large part, on the statements made by the 911 operator to Ms. Nielson and conveyed to the Library Plaintiffs. Plaintiffs allege that "the Deputy Sheriffs and Stone did not order or effectuate an evacuation. Instead, the Deputy Sheriffs remained outside the library while the 911 operator, based on her training and/or responding to the direction of Stone or the Deputy Sheriffs, assured Ms. Nielson that help was on the way...." C/O ¶ 51 (emphasis added). There are no allegations in Claim Four or elsewhere in the Complaint as to which, if any, of the Deputy Sheriff Defendants directed the 911 operator's words or what specifically, if anything, the Deputy Sheriff Defendants told the 911 operator to say. Pursuant to § 24-10-110(5) (a)'s heightened pleading requirements, Plaintiffs' failure to name which, if any, of the Deputy Sheriff Defendants were responsible for the messages conveyed to the Library Plaintiffs requires Rule 12(b) (6) dismissal of the Deputy Sheriffs as to this portion of Claim Four. See § 24-10-110(5) (b).

As to Sheriff Stone, Plaintiffs allege:

Sheriff Stone is liable for the Deputy Sheriffs' conduct because ... the Deputy Sheriffs acted pursuant to his orders, pursuant to custom established by him and/or pursuant to polices (sic) promulgated by him. Sheriff Stone is also liable for the Deputy Sheriffs' conduct because he knowingly ratified their conduct by, inter alia,continuing to retain the Deputy Sheriffs as employees of the Sheriffs' Department with full knowledge of, and notwithstanding, the Deputy Sheriffs' willful and wanton conduct as described above.

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C/O ¶ 95.

As stated, the Complaint alleges that the 911 operator's communications were based on her training and/or Sheriff Stone's directions or the Deputy Sheriff's directions. See C/O ¶ 51. When ¶¶ 51 and 95 are read together, either Sheriff Stone himself directed the 911 operator's words or unnamed Deputy Sheriffs directed this conduct pursuant to Sheriff Stone's orders. See ¶¶ 51, 95. In either circumstance, Sheriff Stone's participation is pleaded with sufficient specificity.

 
b. Training

With reference to the portion of Claim Four based on the 911 operator's training, it is not alleged which, if any, of the Sheriff Defendants was responsible for training the 911 operator. See ¶ 51. *1139 Thus, pursuant to § 24-10-110(5) (a), Plaintiffs' failure to name which, if any, of the Sheriff Defendants were responsible for training the 911 operator, requires Rule 12(b) (6) dismissal of the Deputy Sheriff Defendants, including Sheriff Stone. See § 24-10-110(5) (b).

 
c. Failure to Advise and Provide Assistance

Plaintiffs also ground Claim Four on the Deputy Sheriff Defendants' failures to: 1) provide assistance to the Library Plaintiffs; and 2) advise the Library Plaintiffs that "no assistance would arrive and that these Plaintiffs must help themselves if they wished to avoid the imminent risk of serious bodily harm or death posed by Harris and Klebold." SeeC/O ¶ 92.

Plaintiffs allege that no assistance was provided by the Deputy Sheriff Defendants or other rescuers and that no advisement was made concerning the need for the Library Plaintiffs to help themselves. I may, therefore, infer that all of the Deputy Sheriffs Defendants failed to so act. Under these circumstances, § 24-10-110(5) (a)'s pleading requirements have been met as to this portion of Claim Four as to the Deputy Sheriff Defendants and Sheriff Stone. See ¶¶ 92, 95.

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In summary, as to the 911 operator's communications to the Library Plaintiffs, the Deputy Sheriff Defendants are entitled to dismissal of Claim Four. For the reasons stated as against Sheriff Stone, the pleading requirements are met on that portion of Claim Four based on the 911 operator's communications. All Sheriff Defendants are entitled to dismissal of Claim Four based on the 911 operator's training. With respect to the alleged failures to act, the pleading requirements are met as to all Sheriff Defendants.

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I further analyze the CGIA to determine if Claim Four in its entirety is barred as to all Sheriff Defendants.

The CGIA covers "all the circumstances under which the state, any of its political subdivisions, or the public employees of such public entities may be liable in actions which lie in tort." Id. at § 102. The term "public entity" is defined as "the state, county, city and county, municipality, school district ... and every other kind of district, agency, instrumentality, or political subdivision thereof organized pursuant to law." Id. at § 103(5). "Public employee" is defined as "an officer, employee, servant, or authorized volunteer of the public entity." Id. at § 103(4). There is no dispute that the Sheriff Defendants are public employees under the CGIA.

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A public employee may only be held liable for conduct that is willful and wanton:

[a] public employee shall be immune from liability in any claim for injury ... which lies in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by a claimant and which arises out of an act or omission of such employee occurring during the performance of his duties and within the scope of his employment unless the act or omission causing injury was willful and wanton.

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Id. at § 118(2) (a) (emphasis added). In any action alleging that an act of a public employee was willful and wanton, "the specific factual basis of such allegations shall be stated in the complaint." Id. at § 110(5) (a). The phrase "willful and wanton" is not defined in the CGIA. I look then to controlling Colorado case law to assess the conduct alleged here.

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In a companion case, Castaldo v. Jefferson County Sheriff John C. Stone, 2001 WL 1808538, ___ F.Supp.2d ___ (D.Colo.), I construed controlling Colorado court authority to mean that for a defendant's conduct to be "willful and wanton" under the CGIA that defendant must be *1140 adequately alleged to have purposefully pursued a course of action or inaction that he or she considered would probably result in the harm to Plaintiffs. I apply that definition in the case as well.

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Here, the Sheriff Defendants' alleged conduct involves the actions and omissions with respect to the 911 operator's communications and the Sheriff Defendants' failure to attempt to rescue the Library Plaintiffs as set out above. Also pertinent are Plaintiffs' allegations that upon arrival, Deputy Gardner saw several wounded students lying on the ground outside the school. See C/O ¶ 23. Almost immediately, Deputy Gardner saw either Harris or Klebold near the west entrance, approximately 30 feet east of the Library's exterior entrance. Id. at ¶ 24. This person fired several shots at Deputy Gardner with a long rifle and then entered the School through the west entrance. Id. Shortly thereafter, the other Deputy Sheriff Defendants arrived on scene and also learned that there were two shooters just inside the School's west entrance. Id. at ¶ 28.

Under circumstances where Harris and Klebold were just observed shooting at people directly outside the library's exterior entrance, the Sheriff Defendants' failure to attempt a rescue of the Library Plaintiffs through the exterior entrance and, in essence, telling them to stay put, does not, as a matter of law, amount to willful and wanton conduct. In addition, while the Sheriff Defendants' decision to "secure the perimeter" and not enter the School might in hindsight constitute negligence or arguably gross negligence, I conclude that the Sheriff Defendants' actions or omissions do not constitute willful and wanton conduct sufficient to abrogate governmental immunity under Colorado law. See Colo.Rev.Stat. § 13-21-102(1) (16); Moody, 885 P.2d 200; Pettingell v. Moede, 129 Colo. 484, 271 P.2d 1038 (1954). Consequently, I conclude Plaintiffs' Claim Four is barred by the Colorado Governmental Immunity Act as to all Sheriff Defendants.

 
2. Fed.R.Civ.P. 12(b) (6) Motion to Dismiss

In the alternative, the Sheriff Defendants move to dismiss Claim Four on the grounds that there is no cognizable claim under Colorado law for failure to protect the Library Plaintiffs from Harris and Klebold. In response, Plaintiffs contend that the Sheriff Defendants owed a duty to the Library Plaintiffs to protect them from Harris' and Klebold's criminal acts. SeeC/O ¶ 91. In Plaintiffs' view, this duty arose from the special relationship that existed between the Sheriff Defendants and the Library Plaintiffs based on the Deputy Sheriff Defendants' acts and failures to act which enhanced the danger faced by the Library Plaintiffs. See id. I disagree.

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Guiding principles have emerged from Colorado cases addressing whether police officers owe a duty to crime victims who are injured by third parties. Generally, there is no 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).

a. Special relationship

Pursuant to Leake and its progeny, under Colorado law a special relationship giving rising to a legal duty of care has been confined to circumstances where: 1) a citizen, either perpetrator or victim, was in the custody or control of the police under circumstances giving rise to a duty of care, Leake, 720 P.2d at 163; 2) law *1141 enforcement officers' actions created reasonable reliance on the part of the victims that the police would assist or protect them, Whitcomb v. City and County of Denver, 731 P.2d 749 (Colo.App.1986); or 3) there is a statutory duty of care; see Leake, 720 P.2d at 162; Dare v. Sobule, 674 P.2d 960 (Colo.1984). Plaintiffs assert no statutory duty of care.

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i. Custody or Control over Plaintiffs or Harris and Klebold

Plaintiffs do not allege that the Sheriff Defendants had custody or control over Harris or Klebold. Thus, no special relationship existed between the perpetrators and the Sheriff Defendants. Nor did the Sheriff Defendants have custody or control over the Library Plaintiffs at the time Harris and Klebold entered the Library and attacked the students. See section VI(A) (2), above. Thus, there was no special relationship between the Library Plaintiffs and the Sheriff Defendants.

As an additional basis, Plaintiffs contend that Deputy Gardner's deployment as a School Resource Officer created a special relationship with Plaintiffs and/or Harris and Klebold. I disagree for the reasons stated in companion 192 F. Supp. 2d 1124.

ii. Special Relationship based on Danger Enhancement

​

Plaintiffs state that a special relationship arose between the Sheriff Defendants and the Library Plaintiffs because these Defendants enhanced the risk faced by the Library Plaintiffs by: 1) maintaining a "secure perimeter" around the school preventing any rescue efforts; and 2) informing Plaintiffs that assistance was on the way and instructing Plaintiffs to remain in the Library.

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According to the Colorado Supreme Court, with respect to a state law tort claim a special relationship is created between the actor and a victim if the actor "induce[d] reliance or create[d] the peril or change[d] the nature of an already existing risk." Leake, 720 P.2d at 161. See also Whitcomb v. City and County of Denver, 731 P.2d 749, 751 (Colo.App.1986).

Plaintiffs allege that the Denver SWAT team was present and could have evacuated all the students in the Library through an exterior exit after Harris and Klebold reentered the school's west entrance. This conclusion is belied by the Complaint's allegations. The allegation contained in C/O ¶ 22 and the accompanying diagram of the school demonstrates that the west entrance and the exterior library entrance were immediately adjacent to one another. Further, Plaintiffs allege that either Harris or Klebold shot several times at Deputy Gardner and then entered the west entrance of the school. Plaintiffs allege also that the Deputy Sheriff Defendants observed several wounded students on the sidewalk leading to the west entrance near the exterior entrance to the library. See C/O ¶ 26. Under these circumstances, I cannot conclude that the Sheriff Defendants enhanced or increased the risk that Harris and Klebold would attack the Library Plaintiffs.

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Plaintiffs allege further that the Sheriff Defendants, through the 911 operator, informed the Library Plaintiffs that help was on the way and instructed them to remain in the Library. As a result, the Library Plaintiffs remained in the Library and did not escape out the open exterior entrance door. C/O ¶ 53. Based on these allegations, the Sheriff Defendants induced the reliance of the Library Plaintiffs. Accordingly, I conclude that the Sheriff Defendants were in a special relationship with the Library Plaintiffs. See Leake, 720 P.2d at 161.

 
*1142 a. Solano Factors

In Solano, 985 P.2d 53, the Court listed factors to be examined to determine the existence of a duty in situations where special relationships exist: 1) the foreseeability of harm to others; 2) the social utility of the defendant's conduct; 3) the magnitude of the burden of guarding against injury or harm; and 4) the practical consequences of placing such a duty upon the police. Id. at 54.

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In Solano, the Court concluded that the county sheriff owed no legal duty to the surviving heirs of a man murdered by an inmate who had escaped from the county jail. Solano, 985 P.2d 53. In determining that no duty of care existed, the SolanoCourt assumed the existence of a special relationship between the sheriff and the inmate. This was but the threshold consideration. The Court then analyzed and balanced each of the other factors before concluding that there was no legal duty.

 
i. Foreseeability of Harm

Defendants do not contest that there was a foreseeable risk of harm to the Library Plaintiffs. I agree.

The question of foreseeability "`includes whatever is likely enough in the setting of modern life that a reasonably thoughtful person would take account of it in guiding practical conduct.'" Taco Bell, Inc. v. Lannon, 744 P.2d 43, 48 (Colo.1987) quoting 3 F. Harper, F. James, & O. Gray, The Law of Torts § 18.2 at 658-59 (2d ed.1986). Foreseeability is based on common sense perceptions of the risks created by various conditions and circumstances. Solano, 985 P.2d at 54 citing Taco Bell, 744 P.2d at 48. See also, Restatement (Second) of Torts § 289 (1965).

While important, foreseeability alone does not establish the existence of a legal duty. Solano, 985 P.2d at 54; Perreira v. State, 768 P.2d 1198 (Colo.1989); Taco Bell, 744 P.2d at 49; Restatement (Second) of Torts § 344, comment f (1965).

 
ii. Social Utility of Law Enforcement

The second factor is the social utility of the Sheriff Defendants' conduct. In assessing this factor, the appropriate inquiry is to assess the social utility of the Sheriff's Department function and purpose as a whole. See Davenport v. Community Corrections, 962 P.2d 963, 968-69 (Colo.1998) (Court considered function and purpose of community corrections as a whole, including such aspects as sentencing options, rehabilitation prospects, positive impact on victim restitution, and fiscal savings).

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The social utility of the Sheriff's Department's function and purpose and, by extension, the Sheriff Defendants and the 911 emergency telephone system, is high. Their mission, collectively, is to keep the peace to the best of their abilities and to protect the public so that the citizenry can live and work in a relatively safe world. See Solano, 985 P.2d at 55. In this case, imposition of a duty would undermine the Sheriff's Department's high social utility by establishing a real disincentive to provide emergency law enforcement services, including the 911 emergency communications system, thus reducing significant benefits provided to the community at large. This factor weighs against imposition of a duty.

iii. Magnitude of the Burden of Guarding against Injury or Harm

The Sheriff Defendants view the burden of imposing a duty on them based on the 911 operator's statements as immense because "law enforcement officers would essentially have a special relationship in all cases where 911 calls were made." See Opening Brief, p. 46.

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The Sheriff Defendants' burden is not as onerous as they describe. Here, the 911 *1143 operator's communications to the Library Plaintiffs allegedly were false. Although the Complaint characterizes the communication as "false" it cannot be construed to allege that the communications were intentionally false. Fairly construing the Complaint, it can be seen that the communications were inaccurate and misleading. It is not an undue burden to expect 911 operators to provide accurate information to callers. Thus, the determination whether a legal duty exists remains a case specific inquiry. See Taco Bell, Inc., 744 P.2d at 46. Although this factor could be seen to be in equipoise, I will weigh it in favor of imposing a duty on the Sheriff Defendants.

 
iv. Practical Consequences of Imposing a Duty

As discussed in Solano, imposing liability on the individual Sheriff Defendants for the conduct of third parties who have no history of violent acts would render law enforcement officers insurers for such conduct. This would have inevitable negative consequences for all aspects of police work including their management of emergency situations. Indeed, the spectre of personal liability in the exigent circumstances here creates a disincentive to provide emergency 911 and response services. Because these consequences would detrimentally affect the public, this factor weighs against imposing a legal duty.

On balance, consideration of the relevant factors under the circumstances alleged here, leads to the conclusion that imposition of a legal duty on the Sheriff Defendants is not warranted.

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B. Claim Five-Outrageous Conduct against individual Deputy Sheriffs and Sheriff Stone, in their individual capacity

The elements of liability for the tort of outrageous conduct are that: 1) the defendant engaged in extreme and outrageous conduct; 2) the defendant engaged in such conduct recklessly or with the intent of causing the plaintiff severe emotional distress; and 3) the defendant's conduct caused plaintiff to suffer severe emotional distress. Culpepper v. Pearl Street Bldg., Inc., 877 P.2d 877, 882 (Colo. 1994), Floyd v. Coors Brewing Co., 952 P.2d 797 (Colo.App.1997); CJI-Civ. 4th 23:1 (2000).

Proof of the tort of outrageous conduct under Colorado law must consist of either an extreme act, both in character and degree, or a pattern of conduct from which the decisive conclusion is that infliction of severe mental suffering was calculated or recklessly or callously inflicted on the plaintiff. Gard v. Teletronics Pacing Sys., Inc., 859 F. Supp. 1349, 1354 (D.Colo. 1994). The conduct must be so outrageous and extreme, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. See Floyd, 952 P.2d at 804; Davies v. Philip Morris, USA, 863 F. Supp. 1430, 1440 (D.Colo.1994). It is the Court's responsibility, as an initial matter, to determine whether reasonable persons could differ on the question. Floyd, 952 P.2d at 804; Culpepper, 877 P.2d at 883.

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Harris' and Klebold's acts in perpetrating their heinous and horrific attack on the Library Plaintiffs were, without doubt, atrocious. However, where as here, the Sheriff Defendants were confronted with an unprecedented and rapidly evolving violent situation, reasonable persons could not conclude that the Sheriff Defendants's conduct was so extreme in degree, as to be "atrocious" and "utterly intolerable." See Floyd, 952 P.2d at 804. Therefore, Defendants are entitled to dismissal of Claim Five.

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Accordingly, IT IS ORDERED that:

*1144 1. Claim One against all Defendants is DISMISSED;

2. Claim Two against all Defendants is DISMISSED;

3. Claim Three against Sheriff Stone, the Jefferson County Board of County Commissioners, and the Jefferson County Sheriff's Department is DISMISSED;

4. Claim Four against the Deputy Sheriffs and Sheriff Stone is DISMISSED; and

5. Claim Five against the Deputy Sheriffs and Sheriff Stone is DISMISSED.