A federal judge on Tuesday refused to dismiss an excessive force claim against an Aurora police officer for shooting a gun-wielding man, even though the man was not pointing his weapon at anyone and had only two seconds to react to the officer's commands.
U.S. District Court Senior Judge William J. Martínez agreed Officer Joseph Carns could be held liable for a constitutional violation. The lawsuit and accompanying body-worn camera footage suggested Carns acted unreasonably when he opened fire on Oscar Lucio-Vasquez without warning.
"It is undisputed that Carns ordered Plaintiff to 'drop the gun' twice before firing his service weapon," Martínez wrote in an April 11 order. However, "Plaintiff has pleaded sufficient facts to show he did not have sufficient information or sufficient time to understand that the order was coming from police."
At the same time, the judge dismissed Lucio-Vasquez's claims that the city of Aurora was liable for his injuries because it failed to train its officers on de-escalation and maintained a practice of excessive police force.
Attorneys for Carns did not immediately respond to a request for comment. Kevin Flesch, the lawyer for Lucio-Vasquez, believed Martínez had reached the correct decision. He noted Lucio-Vasquez is still experiencing health issues from being shot multiple times.
"He's been forever changed," said Flesch.
The night of Oct. 20, 2019, Carns and other officers responded to a report of a knife fight in the 9100 block of E. 14th Ave. Dispatchers also notified him of shots fired in the vicinity. Carns walked through the alley when he arrived, emerging at a residential parking lot.
Carns' body-worn camera footage captured, in quick succession, two women running toward him screaming that a man had a gun. Carns raised his own gun toward the apartment building, illuminating Lucio-Vasquez with a flashlight beam. Carns yelled, "Drop the gun! Drop the gun!" and immediately fired five times at Lucio-Vasquez.
Lucio-Vasquez was holding an AR-15 "assault" weapon at the time, which he maintained was unloaded. He told investigators his window was broken just prior to Carns' arrival and he grabbed his rifle to protect his family.
Aurora police released the video shortly after Carns' shooting, claiming Lucio-Vasquez had turned "toward" Carns with his gun when the officer opened fire. Lucio-Vasquez alleged he turned "away" from Carns. It was unclear from the video which assertion was correct.
An Arapahoe County jury subsequently acquitted Lucio-Vasquez of felony menacing in the encounter.
Lucio-Vasquez filed a federal lawsuit alleging excessive force. He heavily relied on a pair of investigations into the Aurora Police Department's operations, including from the Colorado Attorney General's Office. That report found Aurora officers had a pattern of excessive force and racially-biased policing. The revelations prompted the city to enter into a consent decree and agree to change its policies and training.
As for Carns specifically, Lucio-Vasquez alleged the officer shot him without ever announcing he was law enforcement.
"Mr. Vasquez was never given a fair chance or opportunity to drop his gun," Flesch wrote. "Office Carns had many options and distance to use other means other than deadly force."
The defendants moved to dismiss the lawsuit. Aurora argued the investigations into its police department were concluded after Carns' shooting, so the findings could not have put the city on notice that its policies were constitutionally deficient. Carns explained he was confronted with "two terrified unarmed women" running away from a man with a gun, so it was reasonable for him to react with force.
"Plaintiff did not drop his assault weapon when ordered and was in active pursuit of two unarmed women," wrote the officer's lawyers, even though the video did not depict a pursuit.
Martínez weighed several factors when determining whether to grant qualified immunity to Carns. Qualified immunity is a judicial doctrine that generally shields government employees from civil liability unless they violate a person's clearly-established legal rights.
He acknowledged Carns had probable cause to suspect Lucio-Vasquez of menacing, which would support a use of force. However, Carns also gave Lucio-Vasquez no time to comply with his order, failed to identify himself as police and, at the time Carns shot him, Lucio-Vasquez was simply holding his gun in public.
The allegations, wrote Martínez, "depict a police encounter in which an officer’s failure to properly announce himself on a dark night made it extremely difficult, if not impossible, for an armed citizen who was at his residence to comply with police orders in under two seconds, resulting in that citizen being shot."
He denied qualified immunity to Carns. At the same time, Martínez decided the investigations into Aurora's policing and two cited instances of officers shooting people in their homes did not establish the city was liable for failing to train its officers or for maintaining an unconstitutional policy. He dismissed Aurora from the lawsuit.
The case is Lucio-Vasquez v. City of Aurora et al.
