We and the family of Jimma Reat are gratified that Federal Judge Robert Blackburn has recognized the

egregious and community shocking nature of Denvers 911 Operator affirmative actions that night in creating a fatal danger for him that could also have killed his brothers and cousin. These kinds of cases can be difficult. Not all of them have the facts required to shock the judicial conscience and state a due process constitutional claim for the arbitrary confiscating of life, liberty, family and bodily integrity by a government employee. But, as the Court has now found from the 911 tape itself, this case contains the requisite evidence to state this claim. Magistrate Judge Michael Hegarty previously found that all the other factual elements for a federal danger creation claim were present, 5 out of 6 off them. He also found that evidence of willful, wanton, and reckless behavior violating Colorado state law was amply and plausibly alleged. We felt, however, that the Magistrate had set the bar for proving conscience shocking behavior, the final element, too high and asked Judge Blackburn to review the Magistrates Recommendation. On this main issue in this case, Judge Blackburn has now held that plausible evidence of deliberately indifferent governmental conduct by a 911 operator that recklessly disregards a known risk of serious injury or death, that affirmatively creates a dangerous emergency and produces such a tragic and preventable fatality, also states a claim for a substantive due process violation of the 14 th Amendment. The Court stated that this ruling is well grounded in long established principles announced by the Supreme Court and the 10 th Circuit. Denvers 911 operator repeatedly instructed these car passengers that they had to return to Denver to obtain police assistance as a condition of reporting their earlier violent, racially motivated, assault by persons who had hurled beer bottles and bottle rockets which smashed out their back window, showered them with glass and brandished a gun. Under these circumstances, and in shock himself from having been hit and eluding their attackers, Jimma Reats brother, Ran Pal, begged Denvers 911 Operator, Juan Rodriguez, to send the police to them at the safety of their apartment. But Mr. Rodriquez refused to do so.

Instead, Mr. Rodriguez repeatedly directed these plaintiffs that they had to return to Denver. He did this knowing he could send the police and ambulance to where they had eluded their attackers and reached safety at their apartment complex. He just chose not to do so and told these men he could not send police or other help to them. In obedience to his instructions, once they crossed into Denver at 29 th and Sheridan, Judge Blackburn also found that Mr. Rodriguez directed these young men to stop their car, park, turn their hazards lights on to illuminate themselves in the very corridor where their attackers had just recently been and wait for the police. In so instructing, as the Court noted, Mr. Rodriquez even "acknowledged during the call that the assailants might return." While telling them that the police had been sent, Denvers 911 operator in fact never sent the police until after learning Jimma Reat had been shot and killed. As Judge Blackburn stated: "Most glaringly, knowing that the driver was injured and that the assailants had a gun, he failed to send help to the scene until after the tragedy was fair accompli." Rejecting the 911 operator's argument about the law of government danger creation Judge Blackburn wrote: "It cannot be the law that a state actor is entitled to the benefit of the heightened state of mind standard when he himself allegedly set in motion the series of events giving rise to the emergency. Unless Denver decides to take fair responsibility and provide justice to this family for the shocking conduct of their employee and their horrific painful permanent losses, this family will seek to proceed to trial on their federal and state claims as soon as discovery can be completed.

John Holland, Erica Grossman, Anna Holland Edwards Holland, Holland Edwards & Grossman, PC