Molina v. Perez et al
Filing
70
MEMORANDUM AND ORDER denying 59 defendants' Second Motion for Summary Judgment. Signed by Chief Judge J. Thomas Marten on 12/17/14. (mss)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JACOB MOLINA,
Plaintiff,
v.
Case No. 13-1025-JTM
AGENTS GREG PEREZ and
KARL TIMMONS, in their
individual capacities,
Defendants.
MEMORANDUM AND ORDER
Before the court is defendants’ Second Motion for Summary Judgment. Plaintiff
Jacob Molina filed a Bivens action against defendants Greg Perez and Karl Timmons for
Fourth Amendment violations after they detained plaintiff on his property while
investigating an immigration warrant for an individual who was not on the premises.
Defendants moved for Summary Judgment (Dkt. 18) shortly after initial discovery
disclosures, which the court denied. Discovery is now closed and defendants have filed
a Second Motion for Summary Judgment (Dkt. 59). Defendants’ Motion is denied.
I. Undisputed Facts
Plaintiff Jacob Molina is a pastor who lives with his wife on Barron Road in
Wichita, Kansas. The couple owns a home located at 2216 S. White Cliff Road, also in
Wichita, where plaintiff’s brother-in-law lives. The brother-in-law and plaintiff’s fatherin-law share the same name: Jose Florencio Flores-Euceda.
Defendant Perez has been employed by Immigration and Customs Enforcement
(“ICE”) and its predecessor agency, Immigration and Naturalization Service, since May
1997. He is currently a Deportation Officer (DO) under the ICE Office of Enforcement
and Removal Operations (ERO). Defendant Timmons has been employed by ICE for
approximately 19 years. He is currently employed as a DO with the ICE ERO, Fugitive
Operations Team in Wichita. Both defendants have training on the proper use of force
by law enforcement officers.
On July 1, 2011, defendants received information about an individual named Jose
Antonio Flores-Hernandez (the “target”), a citizen of Honduras with an outstanding
warrant of removal that was issued in August 2005. Through a search of available
databases, Timmons determined that a male with the target’s name and date of birth
possibly resided at 2216 S. White Cliff Road, Wichita, Kansas 67207.
Timmons conducted surveillance at the target address twice in August 2011. He
performed registration checks on the license plates of vehicles parked at the White Cliff
residence and discovered who owned the vehicles. One of the license plates was
registered to plaintiff at 9130 E. Barron Road, Wichita, Kansas 67207. Timmons learned
from a records check that plaintiff had been arrested by the Wichita Police Department
for unlawful discharge of a firearm on August 11, 1992, but the misdemeanor complaint
had been dismissed. Timmons also checked driver’s license photographs to determine
whether the target was using “Jacob Molina” as an alias. Plaintiff’s photograph
established that he was not the target.
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On August 17, 2011, Perez and Timmons went to the White Cliff address to
conduct additional surveillance, hoping to locate and apprehend the target. At
approximately 6:30 a.m., Timmons observed the gray Honda registered to plaintiff in
the driveway of the White Cliff residence, along with a new vehicle: a green Honda
SUV. Timmons called for a registration check on the green Honda; it was registered to a
“Jose Flores” living at 2216 S. White Cliff Lane, Wichita, Kansas 67207. Timmons
believed the information connected the target to the White Cliff residence, as suspected.
Defendants then decided to approach the house to talk with the occupants.
Neither officer was wearing an official law enforcement uniform. Timmons was
wearing civilian attire with his badge on a neck chain displayed outside his shirt and
body armor. Perez was wearing trousers and a blue polo shirt. He also wore a tan vest
over his body armor, which displayed a “POLICE” patch and a patch depicting an ICE
badge, and his badge on a neck chain outside his vest.
Between 7:45 and 7:50 a.m., Timmons knocked on the front door of the residence
and rang the doorbell. Nobody answered the door. He knocked and rang the doorbell
again but received no answer. Two dogs came to the window and barked. Timmons
stayed near the front door, periodically knocking and ringing the doorbell. He believed
the occupants might still be asleep or just awakened and could be getting dressed.
At approximately 7:55 a.m., plaintiff’s brother-in-law, Jose Florencio FloresEuceda, answered the door but did not introduce himself. He stayed inside with the
storm door closed and talked to Timmons through the glass. Timmons introduced
himself as an ICE agent. Jose asked Timmons what he was doing there. Timmons
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looked at the target’s photo and saw that the man who answered the door was not the
target. Timmons said he was looking for Jose Flores, the man who drove the green SUV.
Jose said that was his father. Timmons knew that the Jose Flores he was looking for was
too young to be this man’s father, so he asked the man in the doorway whether he was
Jose Flores. The man said that he was not.
The dogs continued barking in the house. Timmons asked if the defendants
could come in and talk with the man, and if he would put the dogs away. The brotherin-law responded that he would go put the dogs away and he shut the door. The
defendants waited about ten minutes before Timmons knocked and rang the doorbell
again, but no one responded.
Unbeknownst to defendants, the brother-in-law had called plaintiff after shutting
the door and told him two men were at the house. Plaintiff immediately drove to the
house, arriving at approximately 8:05 a.m. When plaintiff got out of his car, Timmons
recognized him from the driver’s license photograph.
Timmons identified himself as an ICE agent and called out the name “Jacob
Molina.” Plaintiff acknowledged that this was his name. Perez also introduced himself
as an ICE agent and asked whether plaintiff lived at the White Cliff residence. Plaintiff
replied that it was his property, but did not say that he lived at the residence.
Plaintiff asked the defendants why they were there, and they said that they were
investigating. He asked them whether they had a warrant to search the property and
the defendants replied that they did not. Plaintiff suggested that, as the property owner,
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he could tell them to leave if they did not have a warrant. The defendants did not have
a warrant and ordered plaintiff to leave.
Plaintiff then took out his cell phone and called 9-1-1. He gave the dispatch
operator the White Cliff address and said there were two individuals on his property.
Before he could give any additional information, defendants approached plaintiff from
behind, forced him to the ground and handcuffed him, leaving him face-down on the
ground. As a result, plaintiff suffered a large welt and some bruising.
After helping plaintiff to a sitting position on the ground, Timmons called an
assistant U.S. Attorney. They discussed whether defendants should obtain a search
warrant. While Timmons was on the phone with the attorney, plaintiff’s wife arrived.
Timmons explained to plaintiff and his wife that the officers were looking for Jose
Antonio Flores-Hernandez, and he showed a photograph of the suspect. Plaintiff and
his wife stated that they did not know the suspect and that he did not live at the White
Cliff residence. A short time later, an older Hispanic man approached the house on foot.
Plaintiff’s wife introduced the man as her father, Jose Florencio Flores-Euceda. This was
not the Jose Flores the officers were looking for.
A pair of Wichita Police Department Officers arrived at 8:27 a.m., summoned by
plaintiff’s 9-1-1 call. Plaintiff was released from the handcuffs. He then wrote down
defendants’ names so he could file a complaint with their ICE supervisor. Plaintiff filed
this Bivens action against Timmons and Perez, asserting Fourth Amendment violations
for unreasonable seizure and excessive force.
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II. Summary Judgment Legal Standard
“A party may move for summary judgment, identifying each claim or defense—
or the part of each claim or defense—on which summary judgment is sought.” FED. R.
CIV. P. 56(a). Summary judgment is proper if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a). The court must view the evidence and all
reasonable inferences in the light most favorable to the nonmoving party. LifeWise
Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004). “The movant bears the
initial burden of making a prima facie demonstration of the absence of a genuine issue
of material fact and entitlement to judgment as a matter of law.” Thom v. Bristol-Myers
Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317,
322–23 (1986)). “[A] movant that will not bear the burden of persuasion at trial” need
only “point[] out a lack of evidence for the nonmovant on an essential element of the
nonmovant’s claim” to succeed on summary judgment. Thom, 353 F.3d at 851.
The party resisting summary judgment may not rely upon mere allegations or
denials contained in its pleadings or briefs. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256 (1986). Rather, the nonmoving party must come forward with specific facts showing
the presence of a genuine issue of material fact for trial and significant probative
evidence supporting the allegation. Id. Summary judgment may be granted if the
nonmoving party’s evidence is merely colorable or is not significantly probative. Id. at
249–50. Once the moving party has carried its burden under Rule 56, the party opposing
summary judgment must do more than simply show there is some metaphysical doubt
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as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). “In the language of the Rule, the nonmoving party must come forward with
‘specific facts showing that there is a genuine issue for trial.’” Id. at 587 (quoting FED. R.
CIV. P. 56(e)) (emphasis in Matsushita).
III. Qualified Immunity Defense at Summary Judgment
Defendants argue they are entitled to summary judgment based on qualified
immunity, which requires the court to use an atypical summary judgment analysis.
“When a defendant asserts qualified immunity at summary judgment, the burden shifts
to the plaintiff to show that: (1) the defendant[s] violated a constitutional right and (2)
the constitutional right was clearly established.” Martinez v. Beggs, 563 F.3d 1082, 1088
(10th Cir. 2009). The court must evaluate whether a constitutional right was violated by
considering the facts alleged “in the light most favorable to the party asserting the
injury.” Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002) (quoting Saucier v.
Katz, 533 U.S. 194, 201 (2001)). The court has discretion to address the two prongs in any
order. Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013). “If, and only if, the plaintiff
meets this two-part test does a defendant then bear the traditional burden of the
movant for summary judgment—showing that there are no genuine issues of material
fact and that he or she is entitled to judgment as a matter of law.” Clark v. Edmunds, 513
F.3d 1219, 1222 (10th Cir. 2008) (internal citation omitted).
Where, as here, a case involves claims of both unreasonable seizure and
excessive force arising from the same encounter, the justifications for each must be
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evaluated separately. See Cortez v. McCauley, 478 F.3d 1108, 1127 (10th Cir. 2007). Thus,
the court addresses the two-pronged qualified immunity test on each claim in turn.
A. No Qualified Immunity for Unreasonable Seizure
1. Plaintiff Was Unreasonably Seized
“Under Bivens, an individual has a cause of action against a federal official in his
individual capacity for damages arising out of the official’s violation of the United
States Constitution under color of federal law or authority.” Dry v. United States, 235
F.3d 1249, 1255 (10th Cir. 2000) (original emphasis omitted). The Fourth Amendment
prohibits “unreasonable searches and seizures” by government officials. U.S. CONST.,
amend. IV; see Mapp v. Ohio, 367 U.S. 643, 655 (1961). The Supreme Court identifies three
types of encounters between police and citizens: consensual encounters, investigative
detentions, and arrests. United States v. White, 584 F.3d 935, 944-45 (10th Cir. 2009);
Cortez, 478 F.3d at 1115. “Consensual encounters are not seizures within the meaning of
the Fourth Amendment and need not be supported by suspicion of criminal
wrongdoing.” Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir. 2000).
“Investigative detentions are Fourth Amendment seizures of limited scope and
duration requiring reasonable suspicion of criminal activity.” United States v. SalasGarcia, 698 F.3d 1242, 1248-49 (10th Cir. 2012). An investigative detention occurs when
an officer stops and briefly detains a person for the purposes of investigation. Cortez,
478 F.3d at 1115. An investigative detention must be justified by “reasonable suspicion
supported by articulable facts that criminal activity may be afoot.” Id. “[T]he court must
examine whether the investigative detention was (1) ‘justified at its inception,’ and (2)
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‘reasonably related in scope to the circumstances which justified the interference in the
first place.’” Salas-Garcia, 698 F.3d at 1248–49 (quoting Terry v. Ohio, 392 U.S. 1, 20
(1968)). “If the seizure fails the two-pronged Terry test for an investigative detention,
then the seizure becomes an arrest that must be supported by probable cause.” Id.
(internal citations omitted).
In denying defendants’ first Motion for Summary Judgment, the court noted that
the apex of their reasonable suspicion occurred upon arrival at the White Cliff
residence, and that the encounter with the brother-in-law at the door should have
dissipated that suspicion. Defendants now argue their detention of plaintiff meets the
Terry test because the circumstances should have created reasonable suspicion in the
mind of any competent officer that plaintiff was committing a crime: that he “could be
hiding something . . . or someone.” (Dkt. 60, at 15).
Defendants note that: their research indicated that someone lived at the White
Cliff address with the same name and date of birth as the target; the brother-in-law
failed to return to the door; plaintiff arrived unexpectedly after the brother-in-law failed
to return; plaintiff questioned the officers’ intentions and credentials; and plaintiff
demanded that the officers leave his property. Defendants argue that these facts should
have generated reasonable suspicion in any competent immigration officer’s mind that
plaintiff was harboring an illegal immigrant – even if not their original target. This
argument fails.
Reasonable suspicion requires an officer to have “a particularized and objective
basis for suspecting the particular person stopped of criminal activity.” Oliver, 209 F.3d
9
at 1186. After reviewing a six-year-old warrant of removal/deportation for Jose Antonio
Flores-Hernandez, Timmons searched available databases and determined that a man
named Jose Flores possibly resided at 2216 S. White Cliff Road. Timmons conducted
surveillance on the White Cliff residence and found a grey Honda SUV registered to
plaintiff – not to Jose Flores. On the morning in question, defendants determined that
the new vehicle at the residence, a green Honda SUV, was registered to Jose Flores.
(Dkt. 60, at 6). This corroborated Timmons’s prior database search results indicating
that “Jose Flores” possibly lived there. As a result, defendants walked to the front door
of the White Cliff residence with reasonable suspicion that the target of their
removal/deportation warrant might be inside. The court again finds that this is the
apex of their justified suspicions.
Timmons knocked on the door and plaintiff’s brother-in-law eventually
answered. Based on the photograph of their suspect, the officers knew the man at the
door was not their target. When the officers asked the brother-in-law who owned the
green SUV, he said it was his father’s and confirmed that his father’s name was “Jose
Flores.” However, defendants admit they knew their target was too young to be the
father of the man standing before them.
At this point, defendants knew that neither the male who answered the door, nor
the “Jose Flores” who owned the green SUV, was their target. Thus, their formerlyjustified suspicions had now dissipated. They arrived at the White Cliff residence with
information that a man with at least a similar name and the same date of birth as their
target lived there. They observed a vehicle registered to a man with a similar name as
10
their target. However, they soon learned that the vehicle did not belong to their target
and that the man who answered the door was also not their target. Defendants were
left with no remaining articulable facts indicating that crime was afoot. In order for
reasonable suspicion to remain, defendants would have needed facts indicating that yet
another man by the name of “Jose Flores” – not the man at the door or the owner of the
green Honda – lived at the White Cliff residence. Defendants had no such evidence.
Any remaining suspicion the officers had for investigating the residence was based on
hunch or speculation, rather than a particularized and objective basis.
Defendants argue their suspicion shifted to plaintiff upon his unexpected arrival.
According to defendants, their experience and training as immigration enforcement
officers led them to reasonably suspect that plaintiff was committing a crime; that the
timing of plaintiff’s arrival, his questions and demands, and the use of his phone would
give any reasonable officer reasonable suspicion that crime was afoot. However,
defendants offer no evidence that they were aware of any association between plaintiff
and illegal immigration activities other than the fact that he owned a house where they
at one point had justified suspicion that an illegal alien may have been residing.
Defendants had no other information indicating that plaintiff was committing a crime.
Any suspicion defendants had was supported only by fear, speculation, or a hunch that
the man before them, whom they had identified as the owner of the property, was
warning an unidentified, hypothetical illegal alien of their presence. Defendants had no
information connecting plaintiff to criminal activity and no objective factual basis to
suspect that he was committing a crime. Their research that generated reasonable
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suspicion in the residence – a vehicle and a possible tenant at the White Cliff residence –
was unconnected to plaintiff upon his arrival. Suspicion as to both had been dissipated
by defendants’ investigation.
Defendants further argue they were justified in suspecting plaintiff of
“concealing, shielding from detection, and harboring illegal aliens” because of
information discovered after plaintiff’s detention. (Dkt. 60, at 18). This reasoning, too, is
flawed. Information acquired after the detention terminated cannot contribute to any
justification at its inception or of its scope. United States v. Hall, 978 F.2d 616, 621 (10th
Cir. 1992). Finally, defendants argue that plaintiff was interfering with their
investigation. This is unpersuasive in light of the fact that, at the time plaintiff arrived,
they were on his property without a warrant after their reasonable suspicion for
investigating the property had dissipated. Plaintiff’s detention was unjustified at its
inception; defendants detained him without reasonable suspicion that he was
committing a crime.
Absent reasonable suspicion, the court need not decide at this point whether
defendants’ handling and handcuffing of plaintiff was a mere investigatory detention or
an arrest; neither would be justified under these circumstances.
Considering the facts alleged in the light most favorable to plaintiff, defendants
violated his Fourth Amendment right to be free from unreasonable seizure.
2. Constitutional Right of Unreasonable Seizure Was Clearly Established
“A constitutional right is clearly established when, at the time of the alleged
violation, the contours of the right were sufficiently clear that a reasonable official
12
would understand that his actions violate that right.” Swanson v. Mountain View, 577
F.3d 1196, 1200 (10th Cir. 2009). “The relevant, dispositive inquiry in determining
whether a right is clearly established is whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.” Id.
In handcuffs, plaintiff was in an investigative detention, if not under arrest. The
Fourth
Amendment
forbids
unreasonable
seizures.
U.S. CONST. amend.
IV.
“Investigative detentions are Fourth Amendment seizures of limited scope and
duration requiring reasonable suspicion of criminal activity.” Salas-Garcia, 698 F.3d at
1248–49. The contours of the right to be free from unreasonable seizure, often expressed
as the limits of a Terry stop or seizure, have long been a part of the corpus of criminal
procedural law. The court has no doubt that it would be clear to any reasonable officer
that an investigative detention must be supported by reasonable suspicion, and an
arrest by probable cause. Plaintiff’s constitutional right was clearly established.
B. No Qualified Immunity for Excessive Force
1. Defendants Used Excessive Force
The Fourth Amendment prohibits excessive use of force by federal officers.
Graham v. Connor, 490 U.S. 386, 395 (1989). “The right to make an arrest or investigatory
stop necessarily carries with it the right to use some degree of physical coercion or
threat thereof to effect it.” Id. at 396. The degree of physical coercion officers may use is
limited by the Fourth Amendment’s “reasonableness” standard. Id. at 395.
Determining whether the force used to effect a particular seizure is
reasonable under the Fourth Amendment requires a careful balancing of
the nature and quality of the intrusion on the individual’s Fourth
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Amendment interest against the countervailing governmental interests at
stake . . . . Because the test of reasonableness under the Fourth
Amendment is not capable of precise definition or mechanical application,
however, its proper application requires careful attention to the facts and
circumstances of each particular case, including 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.
Id. at 396 (quotations, citations, and brackets omitted). The reasonableness of a seizure
must be objectively determined “from the perspective ‘of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.’” Plumhoff v. Packard, 134 S. Ct.
2012, 2020 (2014) (quoting Graham, 490 U.S. at 396). The analysis must “allo[w] 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.” Graham, 490 U.S. at 396-97.
“[T]he excessive force inquiry evaluates the force used in a given arrest or
detention against the force reasonably necessary to effect a lawful arrest or detention
under the circumstances of the case.” Cortez, 478 F.3d at 1126 (emphasis added). Thus,
the excessive force analysis is not affected by an unjustified arrest or detention; it must
be evaluated as if the arrest or detention were justified. Romero v. Story, 672 F.3d 880,
890 (10th Cir. 2012) (citing Cortez, 478 F.3d at 1127). Upon showing that the force used
exceeded that necessary to affect a lawful arrest under the circumstances, a claimant
must then show actual injury that is greater than de minimus. Cortez, 478 F.3d at 1129
(finding that tight handcuffing may be excessive if actual injury results). Officers may,
in some circumstances, force suspects to the ground, use handcuffs, and apply other
14
force to effect a detention. United States v. Perdue, 8 F.3d 1455, 1463 (10th Cir. 1993).
However, under the Graham reasonability analysis, such force is not reasonable in this
case.
Defendants suspected plaintiff was harboring illegal aliens. The crime itself is
nonviolent and poses little direct threat of harm to citizens or law enforcement. The
governmental interest here was merely to investigate secondary to a failed warrant
execution; defendants had no particularized, objective evidence that plaintiff was
harboring an ICE fugitive. Defendants note that in Finney v. Metzger, 175 F. Supp. 2d
1296 (D. Kan. 2001), the court ruled that officers used reasonable force when they forced
a suspect to the ground and handcuffed him for twenty-five minutes. However, Finney
is distinguished because the officers in that case had detained a suspicious person while
investigating what they mistakenly believed to be a burglary in progress. Burglary is an
inherently dangerous crime involving the intrusion of another person’s dwelling with
intent to commit a felony; harboring an illegal alien is hardly as confrontational. Under
the Graham reasonability rubric, Finney is a good example of officers using force
commensurate with the severity of a dangerous crime. Here, the low severity of the
crime and the minimal interests of the government favor an excessive force claim.
Defendants argue that plaintiff’s use of a cell phone threatened their safety.
According to plaintiff, defendants knew he was calling 9-1-1. The act of calling the
police is not reasonably interpreted as a safety concern for officers already at the scene
of a non-violent encounter. Even if they had not known who plaintiff was calling,
defendants had no facts indicating that the call posed a threat to them. Although
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defendants knew that plaintiff had been arrested for the unlawful discharge of a
firearm, they also knew that he was not charged and that more than twenty years had
since passed without further incident. Even though defendants had prior experience
investigating deportation warrants that had turned violent, plaintiff did not exhibit
behavior that a reasonable officer would have interpreted as presenting a threat of
harm. Thus, it is not objectively reasonable for defendants to have determined that
plaintiff “posed an immediate threat to the safety of the officers or others . . . .” Graham,
490 U.S. at 396-97. Further, plaintiff was not attempting to flee. Rather, he approached
the officers to speak with them. Under the circumstances of the encounter, defendants’
use of force was unreasonable.
Finally, plaintiff suffered actual injuries.
Defendants forced plaintiff to the
ground, handcuffed and dragged him. In Cortez, the court found no actual injury
existed where handcuffs left red marks on plaintiff’s wrists, but no other physical injury
was present. Here, defendants caused scrapes and bruising on plaintiff’s body.
Considering the facts alleged in the light most favorable to plaintiff, defendants
applied excessive force in effecting plaintiff’s detention or arrest.
2. Prohibition on Excessive Force Was Clearly Established
Graham’s reasonable force requirements are, and have been, well-established. The
use of force limitations placed on officers has no doubt long been in the training
syllabus of ICE and its predecessor agency. There is little doubt that a reasonable officer
knows he must use only that force which is commensurate with the nature and
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circumstances of the alleged criminal activity. Plaintiff’s constitutional right was clearly
established.
The court recognizes that these defendants perform difficult jobs. They are
expected to protect and serve the community by enforcing the law, which often requires
difficult analysis and quick thinking. The duties of the occupation and their constant
interactions with less-than-honest suspects can naturally and necessarily give officers a
suspicious mind. This is understandable—and often useful, under the appropriate
circumstances—but the law requires officers to recognize the distinction between
known facts and gut feelings. Reasonable suspicion is a minimal threshold with a
temporal aspect: facts that meet the threshold one moment may not meet it a moment
later in light of new facts. Similarly, the force permitted to perform their law
enforcement duties, and required for their safety and that of the public, is subject to
change at a moment’s notice. Despite the difficulties of their job, the Constitution
requires officers to constantly re-evaluate and assess whether their actions are
appropriate given the circumstances.
IV. Genuine Dispute of Material Facts
Plaintiff sustained his burden of showing a violation of his clearly-established
constitutional rights, so the burden shifts back to defendants. They must prove that no
genuine disputes of material fact exist and that they are entitled to judgment as a matter
of law. See Gross v. Pirtle, 245 F.3d 1151, 1156 (10th Cir. 2001). Myriad disputes of
material fact exist, making summary judgment inappropriate.
17
Defendants claim that license plates had been changed between vehicles parked
at the White Cliff residence. Plaintiff argues that license plates were not moved between
vehicles. This fact is material because if no plates were moved, the defendants would
have less reason to suspect illegal activity at the residence.
Defendants claim that, upon arrival at the White Cliff residence on the morning
in question, they observed a green Honda SUV registered to the same name and
address as their target. Plaintiff argues the green Honda SUV was not registered in the
same name as the target, but to Jose Florencio Flores-Euceda, plaintiff’s father-in-law;
the ICE target is Jose Antonio Flores-Hernandez. This fact is material because if the
registration did not match the target’s name, then defendants should have been aware
of a possible misidentification before they even approached the door of the White Cliff
residence. This disputed fact goes to the very core of justifying defendants’ suspicions
upon arrival at the residence.
Defendants claim that they did not know who plaintiff was calling during their
encounter, and that they thought he may be calling someone to aid him in committing a
crime or who may present a safety risk to defendants. Plaintiff argues he told
defendants he was calling 9-1-1. This fact is material because defendants may have had
more reason to suspect plaintiff was committing a crime if he had concealed the nature
of his phone call. Conversely, they would have less reason for suspicion if they knew he
was calling 9-1-1.
The parties disagree as to the force used to detain plaintiff. Defendants say they
grabbed his wrist and arms and he “went to the ground.” (Dkt. 65, at 8). Plaintiff argues
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that his “arms were pulled back and used as leverage to push him down and jerk his
arms back” and that defendants dragged him. (Dkt. 65, at 8). Plaintiff also claims that
defendants wrestled him to the ground. This factual dispute is material as to whether
defendants used excessive force to detain plaintiff.
Finally, the parties disagree about the extent of plaintiff’s injuries. Plaintiff
provides the court with a photo taken some time after the incident, which shows
scrapes and bruising. Defendants claim that plaintiff told them that “he was fine,” and
that any damage done to his person was “de mimimus.” Evidence of physical injuries
caused by defendants could help a jury determine whether the force used was
reasonable.
These genuine disputes as to material facts require the court to deny the
defendants’ second summary judgment motion.
IT IS THEREFORE ORDERED this 17th day of December, 2014, that defendants’
Second Motion for Summary Judgment (Dkt. 59) is denied.
s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE
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