DENVER (CN) - A family of Sudanese refugees can pursue claims that their loved one was gunned down because of bad advice from a 911 operator, a federal judge ruled.
Jimma Pal Reat had moved to Colorado with his family after escaping from Sudan and spending time in an Ethiopian refugee camp, according to the complaint
The 25-year-old was in a car with his brothers, Changkuoth Pal and Ran Pal, and another Sudenese friend, Joseph Kolong, in the early morning hours of April 1, 2012, when a group of Hispanic men allegedly pulled up along side, shouted racial slurs and shattered their windshield with beer bottles and "bottle rockets."
Ran Pal allegedly called 911 during the attack while his group fled to suburban Denver.
He said their safety was short-lived because the emergency operator, Juan Jesus Rodriguez, instructed the terrified group to drive back downtown and wait for police at the scene of the crime with their hazard lights on.
With Rodriguez still on the line, the assailants allegedly pulled up again and opened fire, killing Jimma Pal Reat at the scene. The operator meanwhile had allegedly not even yet sent police to the scene.
Reat's family and friends claimed that Rodriguez and the city and county of Denver were liable for violations of their due process and equal protection rights.
U.S. Magistrate Judge Michael Hegarty gave his recommendation
in April on how to handle claims over the "tragic" events, and U.S. District Judge Robert Blackburn decided
Monday to preserve claims only against Rodriguez.
"It is ... plausible to conclude from these allegations that Mr. Rodriguez's directions created a substantial risk that plaintiffs would re-encounter their attackers," Blackburn wrote.
"The facts also plausibly suggest that Mr. Rodriguez consciously disregarded this risk," he continued. "After directing plaintiffs to park in a conspicuous location on a major road on which he knew the attackers had been traveling just minutes before, Mr. Rodriguez then instructed plaintiffs to activate their hazard lights, making them even more visible and obvious than they already were at that early hour of the morning. He then learned that the attackers had brandished a gun during the initial altercation. Despite this knowledge, Mr. Rodriguez did not suggest that plaintiffs find a more discrete location, even within the city of Denver, or otherwise make their whereabouts less obvious. Most egregiously, Mr. Rodriguez did not dispatch a police officer to plaintiffs' location at any time until after Jimma Pal had been fatally shot. I find and conclude that these factual allegations, accepted as true, are sufficiently shocking to the conscience to state a plausible claim for violation of plaintiffs' substantive due process rights under the state-created-danger theory."
Reat's family cannot pursue equal-protection claims, however, because they failed to shot that Rodriguez treated them "differently from other 911 callers because of their race," according to the ruling.
Blackburn also found that Rodriguez should not be held liable under the special relationship theory, or that there is substance to the claim that Denver emergency operators "regularly refuse to dispatch units where the victims are safely located, and instead direct them to go back into city limits in the proximity of where the attackers were known to have just been or to still be."
Though the plaintiffs pointed to three incidents since 1980 in which 911 callers who had been attacked were told to return to the city limits in order to file a police report, the judge said this evidence was insufficient.
"To the extent that three incidents spread over a period of 20 or more years can be said to constitute a 'pattern,' I am unpersuaded that these incidents sufficiently allege the existence of a policy or custom such as plaintiffs suggest," Blackburn wrote. "In two of these incidents, although the callers allegedly were instructed to return to Denver, there is no allegation that they were specifically told to return to the scene of the attack or otherwise reenter the zone of danger."
There is also little to support the claim that Denver showed "deliberate indifference" when it failed to properly train Rodriguez and other emergency operators, according to the ruling.
Reat's family may still amend their suit since Blackburn's dismissal was without prejudice. Their complaint noted that Denver never arrested any suspects in connection to Reat's murder and that Rodriguez was fired a month after the shooting.