MEMORANDUM DECISION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

DAVID NUFFER, District Judge.

Davis County Deputy Sheriff Joshua Boucher ("Deputy Boucher") filed a Motion for Summary Judgment.1 The claims by Elizabeth Wood, Jerry Wood and Becky Wood (collectively "Plaintiffs") relate to the September 22, 2008 shooting of Brian Wood ("Mr. Wood") by Deputy Boucher during an arrest attempt.2

BACKGROUND3

A. Early Morning Domestic Dispute4

On the morning of September 22, 2008, Mr. Wood's wife, Elizabeth Wood ("Elizabeth"), woke up to take a shower and get ready for the day.5 As Elizabeth was coming out of the shower, Mr. Wood "came up from behind[,] ... grabbed [her,] ... threw [her] on the bed" and proceeded to try and have sex with her.6 When Elizabeth tried to get away, Mr. Wood used physical force to stop her,7 and, at one point, "started punching [Elizabeth]."8 During this confrontation, Jerry Wood ("Jerry"), Mr. Wood's father, called the house. Mr. Wood answered the call and told Jerry what had just occurred.9 Shortly after Jerry's phone call, Mr. Wood "started getting out his guns and putting them in his pockets."10 At approximately 9:19 a.m., shortly after speaking with Jerry, Mr. Wood called 911 dispatch and told dispatch what he had done to his wife.11 After the 911 call, and while Mr. Wood was getting his guns, Jerry arrived at Mr. Wood's home.12

When Jerry arrived, Mr. Wood "left the home[,] to the rear[,] and got into his Ford pickup truck."13 Jerry first "discuss[ed] the situation with Elizabeth" and then "went out and spoke to [Mr. Wood] while he was locked in his truck, pleading with him to come out."14 While Jerry pleaded with Mr. Wood, Mr. Wood "open[ed] the passenger window of the truck and fired a single shot from one of the hand guns ... into the utility trailer filled with trash that was located in [Mr. Wood's] driveway, just west of his truck."15

B. Police Arrive

At approximately 9:19 a.m. the Davis County dispatch notified the Farmington City Police Department of the domestic dispute at the Wood residence.16 Officers arrived on scene and observed Mr. Wood enter his vehicle, holding two handguns.17 Shortly after their arrival, officers heard a gunshot.18

Deputy Boucher arrived on scene after receiving a backup request from the Farmington Police Department.19 Upon his arrival, Deputy Boucher spent approximately two hours relaying information to other officers that were just arriving on scene.20 During those two hours, Deputy Boucher witnessed Mr. Wood, still in his vehicle, pointing a gun at his "father — as he would move it across[], so as it came up and over and then down out of ... view."21 Officers attempted to convince Mr. Wood to exit his vehicle and surrender but Mr. Wood resisted officers' requests.22 To better facilitate negotiations, officers threw a phone into Mr. Wood's vehicle, but Mr. Wood refused to use the phone.23

C. Afternoon Events

After Mr. Wood refused to cooperate with officers or surrender, tear gas was eventually fired into Mr. Wood's vehicle.24 The tear gas caused Mr. Wood to exit his vehicle, but "he still had a gun with him and he was alternating [the gun] from being pointed to his head to his chest and back."25 During the tear gas deployment, sometime around noon, Deputy Boucher was relieved of his position of observing and providing information to other officers and asked to assist the tactical operations center.26 Mr. Wood stood by his vehicle for several hours, and during that time was asked "more than fifty (50) times to drop the gun or give up," but officers "never saw him drop the gun."27 Negotiations were unsuccessful during the afternoon.

D. Evening Events

At approximately 4 p.m. Deputy Boucher was assigned by the tactical operations center to be an advanced observer marksman, along with Officer Merino, Officer Marshall, and Officer Hudson.28 In the evening, after more than a twelve-hour standoff and several failed negotiation attempts, a deliberate action plan ("action plan") was agreed upon to achieve Mr. Wood's surrender.29 The action plan consisted of using less-lethal ammunitions, such as .40-mm foam baton rounds, pepper balls, taser, and noise flash diversionary devices, in an attempt to force Mr. Wood to drop his weapon.30 During the deployment of the action plan, Deputy Boucher, and the other advanced observer marksmen, were required to remain "in the position that [they] were in to provide cover for the teams that were up close and provide cover for the deliberate action teams when the plan was set in place and initiated."31

At the start of the action plan, noise flash diversionary devices were deployed and Mr. Wood was hit with pepper balls and foam baton rounds. During these events, Mr. Wood was continuously ordered to drop his weapon. Because the noise flash diversionary devices, the pepper balls and the foam baton rounds failed to achieve their purpose, Mr. Wood was then tasered. Todd Barton ("Barton"), a non-officer eyewitness, Officer Justin Hudson ("Officer Hudson"), Detective Break Merino ("Detective Merino"), Officer Dustin Marshall ("Officer Marshall") and Deputy Boucher, each provided an account of what transpired during the time Mr. Wood was tasered and shortly before Mr. Wood was fatally shot:

Ultimately, Detective Merino, Officer Hudson, Officer Marshall and Deputy Boucher each independently perceived an immediate threat and decided to use lethal force to stop Mr. Wood. Deputy Boucher was the first to fire his weapon and killed Mr. Wood.39

DISCUSSION

A. Summary Judgment Standard

Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material facts and the movant is entitled to judgment as a matter of law."40 When applying this standard, the entire record is viewed "in the light most favorable to the party opposing summary judgment."41 "However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof."42 Likewise, "[a]ffidavits or other evidence offered by a nonmovant must create a genuine issue for trial; viewing the evidence in the light most favorable to the nonmovant, it is not enough that the evidence be `merely colorable' or anything short of `significantly probative.'"43 "[O]nly material factual disputes preclude summary judgment; factual disputes about immaterial items are irrelevant."44

B. 42 U.S.C. § 1983 Deprivation of Constitutional Rights Claim

Deputy Boucher asserts that he is entitled to summary judgment under the doctrine of qualified immunity. When such a defense is raised, the burden shifts to the plaintiff, who must overcome a heavy two-part burden.45 "To prevail ... a `plaintiff must show that (1) the official violated a constitutional or statutory right; and (2) the constitutional or statutory right was clearly established when the alleged violation occurred.'"46

(1) First Prong

Whether Deputy Boucher's use of deadly force against Mr. Wood violated a constitutional or statutory right is analyzed "under the Fourth Amendment, which guarantees citizens the right to be free from unreasonable searches and seizures."47 A reasonableness determination "requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake."48 The United States Supreme Court in Graham v. Connor laid out factors that courts should consider in a reasonableness inquiry.49 The Graham factors include "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight."50 "As with all reasonableness inquiries[, however,] the touchstone is the totality of the circumstances."51 Furthermore, whether an officer's use of force is reasonable is measured "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight."52 "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation."53

Plaintiffs claim that there are disputed issues of material facts — regarding the objective reasonableness of Deputy Boucher's use of deadly force — which preclude the grant of summary judgment. Plaintiffs assert that Deputy Boucher acted in an objectively unreasonable manner both during the events leading up to the use of lethal force and at the time of the actual shooting.

(a) Events Prior to the Shooting

Plaintiffs contend that Deputy Boucher's actions prior to using lethal force were objectively unreasonable.54 "The reasonableness of the officers' use of force depends not only on whether they believe they were in danger at the time but also on whether their `own reckless or deliberate conduct during the seizure unreasonably created the need to use such force.'"55 An officer's conduct leading up to the use of deadly force is only relevant, however, if it is "immediately connected" to the threat of force.56 Moreover, the officer's conduct must rise to the level of recklessness to be actionable.57 Courts are required to consider the totality of the circumstances in their reasonableness inquiry.58

Plaintiffs contend that "[Deputy] Boucher did not have an operating radio, was not wearing his glasses he needed at night and his mind was racing because of the plan his superior officers put into effect."59 Plaintiffs say these facts require the court to find Deputy Boucher's actions, prior to his use of deadly force, reckless. Plaintiffs offer no authority for this assertion. Although not having an operating radio nor wearing one's prescription glasses might be imperfect behavior, these facts do not demonstrate that Deputy Boucher acted in a reckless manner which created the need to use such deadly force.

(b) Time of Shooting

Plaintiffs set forth a list of "Disputed Facts"60 for their argument that Deputy Boucher's use of lethal force was objectively unreasonable. Reviewing those facts in light of the Graham inquiry for reasonableness, it is clear that two of the factors are not in dispute, namely, the severity of the crime at issue and Mr. Wood's active resistance. Plaintiffs do not dispute that Mr. Wood actively resisted arrest. Also, the crime at issue was severe. The police were originally dispatched to the Wood residence regarding a domestic violence situation which alone can be considered severe. Mr. Wood, however, increased the severity of his crime by (1) firing into a utility trailer while in his vehicle, (2) making hostile motions with his gun — moving it from side to side and also aiming it at himself, and (3) during the twelve-hour standoff, refusing to drop his weapon and surrender — even after officers used less-lethal ammunitions, such as .40-mm foam baton rounds, pepper balls, taser, and noise flash diversionary devices.

Therefore, Plaintiffs dispute only one Graham factor — whether Mr. Wood posed an immediate threat to the safety of the officers when he was shot. Plaintiffs assert that Mr. Wood did not pose an immediate threat to anyone because he did not have a gun in his hand at the moment he was fatally shot.61 Plaintiffs rely on the deposition of Barton, an eyewitness, who testified that Mr. Wood "did not have a gun in his hand when Deputy Boucher ... shot and killed [Mr. Wood]."62

In his deposition, Barton testified that he went across the street, and into a building, so he could have a better view of the situation.63 Barton testified that during the police action plan he saw Mr. Wood holding a gun. When asked which hand the gun was in, Barton testified that Mr. Wood had the gun in his "right hand and then at one point in his left hand."64 When asked what he observed when Mr. Wood was tasered, Barton stated that Mr. Wood dropped to his knees, but tried to catch himself, and afterward Mr. Wood raised his hands and, Barton noticed Mr. Wood was no longer holding a gun.65

As further evidence for their assertion that Mr. Wood did not have a gun in his hand at the moment he was shot, Plaintiffs point out that there was no gun in Mr. Wood's hand when officers approached Mr. Wood's body.66 Plaintiffs refer to Officer Hudson's deposition on this point.67 Plaintiffs correctly point out that Officer Hudson testified that he did not see a gun in Mr. Wood's hand when he approached the body; however, Plaintiffs fail to mention that Officer Hudson saw the gun, on the ground, next to Mr. Wood's hand.68

Plaintiffs further claim that "Officer Marshall testified that he doesn't have any recollection of seeing [Mr. Wood's] ... gun in his hand or anywhere else after he was shot."69 Plaintiffs' argument mischaracterizes Officer Marshall's testimony. Officer Marshall was not asked whether he saw the gun, but whether he "recalls where the [.45] Kimber was at the time [he] saw [Mr. Wood's] body."70

Whether Mr. Wood had a gun in his hand when he was shot does not determine whether Mr. Wood posed an immediate threat to the safety of the officers when he was shot. As in Phillips v. James, "Plaintiffs' argument relies heavily on the `precise moment' factor."71 However, "strict reliance on just one factor when the totality must be considered is inappropriate."72

Although the precise moment Mr. Wood was shot is an important factor, "the events leading up to that moment are also extremely relevant" in determining whether Mr. Wood posed an immediate threat.73 The Tenth Circuit has provided a non-exhaustive list of factors to consider when assessing the degree of threat an individual posed to officers: "(1) whether the officers ordered the suspect to drop his weapon, and the suspect's compliance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions of the suspect."74

The circumstances, viewed in the light most favorable to Plaintiffs, show that (1) throughout the twelve-hour standoff, officers continually ordered Mr. Wood to drop his weapon and surrender, yet Mr. Wood continually resisted; (2) throughout the day, Mr. Wood made hostile motions with the gun — motioning the gun from side to side; (3) there were many officers surrounding and in close proximity to Mr. Wood; and (4) having previously fired his weapon, Mr. Wood's manifest intentions were unknown to officers.

These circumstances indicate that Mr. Wood posed a significant threat and "from the perspective of a reasonable officer on the scene, the totality of the circumstances justified the use of force" in this case.75 It is uncontested that three separate officers at the scene, each assigned as an advanced observer marksman, made an independent decision to take lethal force against Mr. Wood at the same time that Deputy Boucher shot Mr. Wood because of their perceptions of an immediate threat. This supports the determination that Deputy Boucher's use of deadly force was objectively reasonable and justified.76

Even if the evidence established that Mr. Wood was unarmed at the moment he was shot, this district has previously held, and the Tenth Circuit has affirmed, that is it "not unreasonable for the officers to believe that [the individual] posed a serious threat of physical harm when he was moving in violation of the officers' orders and his gun remained in close reach."77 Even under Plaintiffs' view, the gun was at least within close reach, if not in Mr. Wood's hand, when he was shot. Barton, the witness most favorable to the Plaintiffs, testified that Mr. Wood had the gun in his hand shortly before being shot. Barton also testified that Mr. Wood was moving his hands prior to being shot. The circumstances surrounding the shooting establish that Deputy Boucher was presented with a "tense, uncertain, and rapidly evolving situation that we do not like to second-guess using the 20/20 hindsight found in the comfort of a judge's chambers."78 Even if "`an officer reasonably, but mistakenly, believed that a suspect was likely to fight back the officer would be justified in using more force than in fact was needed.'"79 From the beginning, Mr. Wood was given every opportunity during the twelve-hour standoff to exit his vehicle and comply with officers' commands, instead he refused to drop his weapon — even when hit with baton rounds, pepper balls, and tasered — creating a threatening situation for the officers.

Under the circumstances, it was not unreasonable for Deputy Boucher to believe that Mr. Wood posed a serious threat of physical harm.80 Thus, Plaintiffs have not satisfied the first prong of the qualified immunity analysis because they have failed to demonstrate that Deputy Boucher's use of lethal force was objectively unreasonable and in violation of the Fourth Amendment.

(2) Second Prong

Review of the second prong of the qualified immunity analysis (whether the constitutional or statutory right was clearly established when the alleged violation occurred) is not necessary. "If the plaintiff fails to meet his or her burden on [the] threshold inquiry, the qualified immunity inquiry comes to an end."81 Here, Plaintiffs have not satisfied the first part of the qualified immunity inquiry; therefore, there is no need to address the second inquiry.82 Accordingly, Deputy Boucher is protected by qualified immunity.

C. Violation of Article I, §§ 1, 7, 14, and 15 of the Utah Constitution

Plaintiffs argue that Deputy Boucher violated their constitutional rights under the Utah Constitution, article I, sections 7, 9, and 14.83 Utah does not have a counterpart statute to 42 U.S.C. § 1983 and the Utah Constitution does not expressly provide damage remedies for constitutional violations. "As a result, a plaintiff's remedy for state constitutional violation rests in the common law."84 In order to recover monetary damages for a constitutional violation, the Utah Supreme Court requires a plaintiff to:

Because Plaintiffs seek monetary damages for the alleged violations of their state constitutional rights, the above analysis applies. Deputy Boucher contends that "Plaintiffs have not demonstrated ... that the constitutional provisions alleged ... are self-executing,"86 and further argues that the "Utah Constitutional claims related to monetary damages fail on the first [Spackman] element [Plaintiffs] must show the Court."87 These two arguments are addressed in turn.

(1) Self-Executing

Plaintiffs must first demonstrate that article I, sections 1, 7, and 14 are self-executing. "[A] constitutional provision is self-executing if it articulates a rule sufficient to give effect to the underlying rights and duties intended by the framers[] ... and if no ancillary legislation is necessary to the enjoyment of a right given, or the enforcement of a duty imposed."88 The Utah Supreme Court, in Jensen, has recognized that article I, sections 1, 7, and 14 are self-executing; therefore Plaintiffs have cleared the first Spackman hurdle.89

(2) Monetary Damages

Deputy Boucher next argues that "Plaintiffs' Utah Constitutional claims related to monetary damages fail on the first [Spackman] element.... Plaintiffs did not sustain a `flagrant' violation of their Constitutional rights."90 To establish a flagrant violation of one's constitutional rights:

Plaintiffs contend that "[t]he fact that [Deputy] Boucher claims he was justified in using lethal force does not somehow convert his unlawful killing of [Mr. Wood] into something that is less than `flagrant' under Utah law."92 Plaintiffs further assert that "[i]t is bewildering to think that killing an unarmed man who is being tased could be something less than a flagrant violation of the Utah Constitution."93 Deputy Boucher argues that he was not acting in a flagrant manner, because he "acted in an objectively reasonable manner when he shot [Mr. Wood] because Deputy Boucher feared for the safety of other officers and for his own life."94 The Utah Supreme Court has noted that there "cannot be a flagrant violation ... if there was a reasonable basis to warrant the particular intrusion."95

Deputy Boucher had a reasonable basis for taking lethal force against Mr. Wood. Deputy Boucher was responding to what he perceived to be an immediate threat to himself and other officers. As discussed above in the section 1983 analysis, it was not objectively unreasonable for Deputy Boucher to believe that Mr. Wood posed a serious threat of physical harm. Accordingly, Plaintiffs have failed to establish that they suffered a flagrant violation of their Utah constitutional rights.

D. Intentional Infliction of Emotional Distress

A claim for intentional infliction of emotional distress must be supported by facts that demonstrate that Deputy Boucher "intentionally engaged in some conduct toward the plaintiffs, (a) with the purpose of inflicting emotional distress, or, (b) where any reasonable person would have known that such would result."96 Also, the facts must demonstrate that Deputy Boucher's actions "are of such a nature as to be considered outrageous and intolerable in that they offend against the generally accepted standards of decency and morality."97

Deputy Boucher argues that Plaintiffs' intentional infliction of emotion distress claim fails in these circumstances because his actions were not directed towards Plaintiffs but were towards Mr. Wood. Deputy Boucher further argues that none of his "actions were done with the intention of causing emotional distress"98 to Plaintiffs, and "the single shot taken by [him] ... under the circumstances [where an immediate threat was perceived] was not of such a nature `as to be considered outrageous and intolerable.'"99

Plaintiffs do not address Deputy Boucher's arguments directly; Plaintiffs' arguments assume that Deputy Boucher's actions were a "deliberate violation of [Mr. Wood's] ... constitutional right to be free from the use of lethal force without cause."100 Plaintiffs' claim is not viable because "an actor exercising legal rights is not liable ... merely for exercising those rights."101 Deputy Boucher was fulfilling his legal duty and exercising his legal right to protect himself and others from the immediate threat Mr. Wood presented. "The idea that an actor is protected by exercising a legal right is a narrower but comparable concept to the defense of privilege employed for other intentional torts."102

In addition, Plaintiffs' claim for intentional infliction of emotional distress fails because "a person cannot recover intentional infliction of emotional distress damages based on outrageous conduct visited upon a family member without [plaintiff] being present when the conduct took place."103 Plaintiffs argue that the exception to the presence requirement, recognized in Hatch v. Davis,104 applies. The Hatch court, in considering whether conduct triggers the exception, provided a four factor test: "(1) the relationship of the target of the conduct to the plaintiff, (2) the relationship between the person committing the conduct and the plaintiff, and (3) the egregiousness of the conduct. Finally, (4) a plaintiff must establish that the conduct was undertaken, in whole or in part, with the intention of inflicting injury to the absent plaintiff."105 "This much should be clear at the outset: the bar is high,"106 and the exception only applies "under particularly compelling circumstances."107

The last two Hatch factors are not met. Because Deputy Boucher's actions were taken in response to an immediate threat to himself and other officers, consistent with his law enforcement duty, his actions were not egregious. Further, Plaintiffs have no evidence that Deputy Boucher's conduct was undertaken with the intention of inflicting injury to the Plaintiffs. Deputy Boucher reasonably believed that Mr. Wood posed an immediate threat and his actions were taken with the intent of stopping the threat. Accordingly, Deputy Boucher is entitled to judgment as a matter of law on this claim.

ORDER

For the reasons stated above, IT IS HEREBY ORDERED that Defendant Deputy Boucher's Motion for Summary Judgment108 is GRANTED.