In January, as we reported at the time, a judge ruled that the City of Denver could be listed as a defendant in a lawsuit filed by the family of Jimma Reat, who was killed in 2012 after a tragic error by a 911 operator.
Now, however, another judge has dropped Denver as a defendant. Denver's city attorney describes the decision as "the right one," while a lawyer for the firm representing Reat's family disagrees even as he makes it clear the suit remains very much alive. Details and the complete order below.
A previous post notes that early on April 1, 2012, Reat and two of his brothers, Changkuoth Pal and Ran Pal, as well as Joseph Kolong, were in a vehicle near the intersection of 10th and Sheridan when a Jeep Cherokee pulled up alongside their car. The Jeep's male occupants began "harassing and attempting to injure" the four young men, according to the lawsuit, also on view here.
The men in the Jeep are said to have called Reat and friends "niggers" while throwing beer bottles and what's described as "bottle rockets" at them. The back window of Reat's car was shattered in the altercation, showering the occupants with broken glass. In addition, one of the Jeep's occupants brandished a handgun.
At that point, the suit's narrative continues, Ran Pal phoned 911 to report the crime and get emergency police and medical assistance. The call was answered by Juan Jesus Rodriguez, another defendant in the case. During the conversation, the victims were able to elude the men in the Jeep and find relative safety at an apartment building's parking lot in Wheat Ridge, approximately seven and a half blocks west of Denver's city limits -- and Ran Pal is said to have told the operator that he was too unsettled by the occurrence to feel comfortable driving.
Nonetheless, Rodriguez told them they needed to drive back to Denver in order to rendezvous with DPD officers, and though wary, they eventually acquiesced. But the complaint maintains that the operator didn't immediately send police to the location within Denver limits (the delay is estimated at seven minutes), nor did he create an incident report. Moreover, the suit says, he told the victims that once they had moved their car to a suitable spot, they should make themselves prominent to officers by turning on their hazard lights and leaving them flashing.
Rodriguez was still on the phone with Ran Pal when the car came to a stop in the vicinity of West 29th and Sheridan -- at which point the Jeep Cherokee rematerialized and its occupants opened fire. Jimma Reat died at the scene in Ran Pal's arms, having been shot in the back.
The scene of the crime.
Denver's status as a defendant in the Reat family lawsuit was in doubt until information surfaced about a call taken by Rodriguez in February 2012, more than a month prior to Reat's death. As outlined in the second amended complaint filed by Holland, Holland Edwards & Grossman, PC, the law firm representing the Reat family (the section starts on page 24 of that document, shared below as well), Rodriguez was told by a caller that he'd choked his mother's boyfriend to death after the man had allegedly been violent toward his mom. But rather than dispatching law enforcement to the scene immediately, Rodriguez is said to have spent five minutes processing the call. During that time, he allegedly had the caller go outside the check the exact street address of the house and even suggested that he attempt to revive the man he'd just choked to death.
Here's an excerpt from a highly critical city analysis of the incident featured in the suit:
You started to have the caller, who admittedly choked out the victim, perform CPR. When you asked the caller to check for anything in the victim's mouth, the caller told you, "No, I told you I choked him out! At no point during the conversation did you actively listen to what the caller had to say or appear to understand that a homicide had occurred and scene safety was paramount. You repeatedly harangued the caller with questions and appeared to have no appreciation for the caller's environment and his efforts to assist you with processing the call.
Despite the mishandling of the call, as determined by a city inquiry, "Mr. Rodriguez was not terminated, disciplined, re-trained, or supervised to ensure that he developed these critical abilities to do his job safely," the lawsuit states. Instead, he was merely given a verbal reprimand and allowed to stay on duty -- where, on the first day of April, he answered the call about a group of attack victims that included Jimma Reat.
Jimma Reat, right, with two of the plaintiffs and the newborn child of another of his brothers.
The February 2012 incident was key to Magistrate Judge Michael Hegarty's decision to rejoin Denver as a defendant in the complaint. Afterward, attorney John Holland, who's representing the Reat family in collaboration with colleagues Erica Grossman and Anna Holland Edwards, called the ruling about the city "a significant decision in the pursuit of justice. Because the 911 leadership played a significant role in what happened here."
But now, an order by U.S. District Court Judge Robert E. Blackburn has granted a motion by the City of Denver to dismiss it as a defendant.
Why? A flurry of technical reasons specific to government (as opposed to private) defendants, as well as Blackburn's belief that the new evidence presented by the plaintiffs falls short. "Absent any facts suggesting that the City's training policy itself was deficient or inadequate," he writes, "the fact that Mr. Rodriguez may have required more or different training simply is insufficient to impose liability on the City."
Blackburn adds that "although plaintiffs' conclusion that Mr. Rodriguez presented a danger seems foregone with the benefit of hindsight, there is nothing in the Second Amended Complaint to suggest that the City's response to Mr. Rodriguez's handling of the February 2012 call was plainly inadequate at the time.... Indeed, Mr. Rodriguez acknowledged that he knew it was not necessary for plaintiffs to return to Denver to make a police report. Given that admission, plaintiffs simply cannot establish an affirmative link between the City's response to Mr. Rodriguez's handling of that earlier matter and the alleged violation of plaintiffs' substantive due process rights."
A map showing the distance between the apartment building and the intersection where gunfire rang out.
Likewise, Blackburn cites "the absence of any suggestion that the February 2012 incident itself resulted in a deprivation of constitutional rights, let alone one closely analogous enough to characterize what happened in this case as 'highly predictable or plainly obvious.'" In his view, "The two incidents are too dissimilar to permit a plausible inference that the City was deliberately indifferent to the need for more or better training than was provided to Mr. Rodriguez."
For these reasons, Blackburn granted Denver's motion to dismiss -- but in an e-mail to Westword, City Attorney Scott Martinez avoids a celebratory tone. "This is truly an unsettling situation," he writes. Nonetheless, he continues. "I agree with the ruling of the court. It's the right one.
"This is a tragic case," Martinez acknowledges. "We, too, want justice for Jimma Reat and look forward to the day those responsible for his death are brought to justice."
Attorney Holland wants justice, too -- but he sees the situation differently. "This wouldn't even be a close question with a private organization under these facts," he says, adding, "Too often, government is allowed to be derelict because of overprotective rules -- rules we think would actually have justified keeping Denver in. But we respect the court and will take that up at a later time," likely at the 10th Circuit Court level.
In Holland's view, "the handwriting was on the wall, and we believe there was enough handwriting for Denver to be responsible to intervene and protect the public from recurrence. The court disagreed, but the case against Mr. Rodriguez remains intact and has not been dismissed, which is the heart of the matter."
Here's Judge Blackburn's order, followed by the original lawsuit and the second amended complaint.
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