A federal judge last week permitted a man’s excessive force claims to proceed against law enforcement officers from Craig and Moffat County, who allegedly rammed him with a car as he was walking away with his hands in the air.

Chief U.S. Magistrate Judge Scott T. Varholak noted that plaintiff Tanner Sholes, as alleged, was disobeying orders to get on the ground and was suspected of being a felon carrying a gun. At the same time, the situation as a whole was not one that justified the use of deadly force against Sholes.

“In the end, the Court notes that, over the course of approximately one and one half hours, Plaintiff never threatened anybody with the weapon. He did not stop as ordered by the officers, but he did raise his hands. He was walking away as opposed to running,” wrote Varholak in an April 7 order. “And though he was walking toward a house, the Court cannot tell from the Complaint how far away Plaintiff was from the house or whether the home occupants were in any imminent danger should Plaintiff reach for the rifle, which to that point he had not.”

As Sholes described in his lawsuit, two people called police early on the morning of Sept. 22, 2023 to report a man walking through Craig carrying a rifle. A Craig officer located Sholes and confirmed a barrel poking out of his shirt.

As alleged, police officers and sheriff’s deputies monitored Sholes as he walked throughout the city and into the county. They learned Sholes was subject to a restraining order barring him from having a firearm. At the same time, they heard from his mother that she was missing a BB gun.

In total, Sholes walked past 70 homes without incident and turned down a dirt road with another residence at the end. At that point, officers and deputies made a plan to “contact” Sholes. They allegedly knew, at that point, about his criminal history involving weapons, and they were unsure what his mental state was. They also were aware that he may attempt “suicide-by-cop.”

The officers, pursuing Sholes by vehicle, gave verbal commands to get on the ground. Sholes did not do so, but he allegedly kept walking away with his arms in the air. Sheriff’s Lt. Nate Businger accelerated toward Sholes and hit him at 20-30 mph. As a result, Sholes suffered physical and psychological injuries.

The firearm wound up being a BB gun.

“He was walking down a road, alone. The only person within any reasonable distance was in his house a considerable distance away,” wrote Sholes’ lawyers. “Plaintiff represented no threat to anyone, let alone a serious threat to officer safety. Accordingly, Plaintiff had a clearly established right to be free from the Defendants’ use of unreasonable deadly force.”

The defendants moved to dismiss the lawsuit, arguing Sholes was “well known” to police due to his lengthy criminal history. 

They “could not have predicted how Plaintiff (a known felon with a history of violence and who was believed to be armed) would react,” wrote attorneys for the Craig defendants. “Thus, it cannot be said that any reasonable officer in Defendants’ position would have known the apprehension plan constituted excessive force.”

Varholak recited the list of factors relevant to an excessive force claim, including the severity of the suspected crime, disobedience of verbal orders and the distance between Sholes and the officers. Multiple factors were a “close call,” Varholak wrote.

But, as alleged, “the Court cannot conclude that Plaintiff posed an immediate and significant threat to the safety of Defendants or anybody else at the time he was struck by the vehicle,” he wrote.

Vaholak allowed Sholes’ excessive force claims under federal and state law to proceed against the individual officers. At the same time, he dismissed the claims against the city of Craig and the elected county sheriff. Sholes had claimed their failures to train, supervise and discipline their employees were behind the constitutional violation, but Varholak found the allegations were not specific enough to demonstrate those defendants should be held liable.

The case is Sholes v. The City of Craig et al.