Attorneys for Jimma Pal Reat’s estate are seeking a review by the full 10th Circuit Court of Appeals after a panel of three appeals judges dismissed his wrongful death lawsuit against a Denver dispatcher who told him and his companions to return to the scene of a violent crime.
The petition filed by Denver attorney Erica T. Grossman says that the appeals panel decision “squarely conflicts with the established 10th Circuit’s test for state-created danger.”
“The panel decision also involves a question of exceptional importance as it grants 911 operators unprecedented absolute immunity under the state-created danger doctrine,” says the petition filed Tuesday.
The panel, Chief Judge Timothy M. Tymkovich, Judge Michael R. Murphy and Robert E. Bacharach, had dismissed the case May 31 against former dispatcher Juan Jesus Rodriguez, ordering the case be returned to district court for dismissal. There are 19 judges in the 10th Circuit Court of Appeals.
“We conclude the law was not clearly established such that a reasonable 911 operator would have known his conduct violated Reatap constitutional rights,” the three judges had said. They had determined that Rodriguez was protected by qualified immunity.
The case was appealed before it went before a jury. Denver U.S. District Judge Robert Blackburn previously dismissed the case against the city on the basis of qualified immunity, but he declined to dismiss the case against Rodriguez.
Reat, 25, was driving from Denver to Wheat Ridge with two brothers and a friend early on April 1, 2012, when a group of men drove beside their rental vehicle and began harassing them. According to police reports, the still-unidentified men screamed racial epithets at the Sudanese men and threw bottles, and one of them waved a gun.
Reat made it to the parking lot at their apartment in Wheat Ridge, but Rodriguez, who was fired for his actions in the case, told them they would have to return to Denver to meet police and make a report. When they did, Reat was shot to death.
The petition said that government officials can’t be held blameless solely because a similar situation had never happened. As an example, any law enforcement official responding to the Columbine massacre can’t be excused simply because of the uniqueness of the incident.
“State created danger cases inherently involve novel circumstances. Thankfully, it is rare for state actors to engage in conscience shocking affirmative conduct that creates danger to a limited group of people,” the petition says.
