Williams v. Denver

153 F.3d 730 98 CJ C.A.R. 3629

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Colleen K. WILLIAMS, individually and as Personal Representative of the Estate of Randy M. Bartel, Plaintiff--Appellant, v. DENVER, CITY and COUNTY of; Michael W. FARR, individually and in his capacity as an officer of the Denver Police Department; Aristedes ZAVARAS, individually and in his official capacity as Chief, Denver Police Department; Manuel MARTINEZ, individually and in his official capacity as Manager of Safety for the City and County of Denver; Roger CISNEROS; Edward SULLIVAN; Leslie FRANKLIN; JANE WOODHOUSE; Deborah WAGNER, individually and in their official capacities as members of the Civil Service Division, City and County of Denver, Defendants--Appellees.

No. 94-1190.

United States Court of Appeals, Tenth Circuit.

June 26, 1998.

Before SEYMOUR, Chief Judge, PORFILIO, ANDERSON, TACHA, BALDOCK, BRORBY, KELLY, HENRY, BRISCOE, LUCERO, and MURPHY, Circuit Judges. **

ORDER AND JUDGMENT *

PER CURIAM.

1

A panel of this court issued an opinion in this appeal affirming the district court's judgment in part, reversing in part, and remanding for further proceedings. See Williams v. Denver, 99 F.3d 1009 (10th Cir.1996). On March 3, 1997, the court issued an Order granting the petition for rehearing en banc of defendant City and County of Denver. In so doing, we ordered the panel opinion vacated, 1 appointed an amicus curiae, and ordered the parties and the amicus to brief, inter alia, the issues of municipal liability and of the standard of care under which the constitutionality of the individual officer's conduct in this case should be evaluated.

2

On June 11, 1997, we entered an Order abating the appeal pending the Supreme Court's decision in County of Sacramento v. Lewis, No. 96-1337, cert. granted, 117 S.Ct. 2406 (June 2, 1997). That decision was handed down on May 26, 1998. See County of Sacramento v. Lewis, No. 96-1337, 1998 WL 259980 (U.S. May 26, 1998). While the instant appeal was pending, the Supreme Court also addressed issues that may be of significance to this case in Board of County Comm'rs v. Brown, 520 U.S. 397 , 117 S.Ct. 1382 , 137 L.Ed.2d 626 (1997). In view of these recent authorities, the abatement is lifted, and the en banc court vacates the judgment of the district court and remands this case for further proceedings in light of the recent Supreme Court authority set out above. The mandate shall issue forthwith.

** Judge David M. Ebel is recused in this case * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3 1

Through administrative oversight the panel opinion was not actually vacated until April 29, 1998