Montoya v. Ramos et al

Filing 87

MEMORANDUM OPINION AND ORDER by District Judge William P. Johnson DENYING 71 Plaintiff's Amended Motion for Partial Summary Judgment and DISMISSING Plaintiff's claim regarding reasonable suspicion on the grounds of qualified immunity. (mag)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MAX MONTOYA,
Plaintiff,
vs.

No. 1:13-cv-00773-WJ-SCY

KACY RAMOS,
MICHAEL RICO,
CITY OF ALBUQUERQUE,
Defendants.
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S FIRST AMENDED
MOTION FOR PARTIAL SUMMARY JUDGMENT
and
DISMISSING PLAINTIFF’S REASONABLE SUSPICION CLAIM ON GROUNDS OF
QUALIFIED IMMUNITY
THIS MATTER is before the Court on Plaintiff Max Montoya’s First Amended Motion
for Summary Judgment on His 4th Amendment Claims Under Section 1983 Claims [sic] for the
Unreasonable Siezure [sic] of Max Montoya, as Well as His 4th Amendment Claims Under the
New Mexico Tort Claims Act, filed on June 2, 2017 (Doc. 71). Having reviewed the relevant
pleadings and the applicable law, and the argument and evidence presented at the hearing on
August 25, 2017, the Court finds Plaintiff’s Motion is not well-taken, and is therefore DENIED.1
Furthermore, the Court DISMISSES Plaintiff’s claim regarding reasonable suspicion on the
grounds of qualified immunity.

1

This Court’s local rules provide another basis for the Court to deny Plaintiff’s Motion for Partial Summary
Judgment. The rule requires that a movant must determine whether a motion is opposed, and a motion that omits
recitation of a good-faith request for concurrence may be summarily denied. See D.N.M.LR-Civ. 7.1(a). Plaintiff
did not do so, thus the Court could have immediately denied his Motion without reaching the merits. See id.

BACKGROUND
This litigation stems from an encounter between Plaintiff and Albuquerque Police
Department (APD) Officers Kacy Ramos and Michael Rico.2 On August 27, 2011, shortly after
10:00 p.m., Officers Ramos and Rico were dispatched to 510 Dartmouth Dr. SE in reference to
an anonymous 911 call regarding a disturbance on Dartmouth Dr. SE. Officers Ramos and Rico
were advised that there were two males in an argument and one of the males mentioned a gun.
An unidentified individual told Officers Ramos and Rico that the argument had come from 511
Dartmouth, Plaintiff’s residence.

Officer Rico pointed his flashlight at the front of 511

Dartmouth. Plaintiff was in the front yard with a beer in his hand. Officers Ramos and Rico
approached Plaintiff at the front door to the residence, announcing themselves as police.
Defendants state that the officers were concerned Plaintiff might be armed with the gun that had
been mentioned during the argument. It was dark and late at night, so Officer Ramos asked
Plaintiff to step towards him. Defendants assert Plaintiff was reluctant to go near the officers
and became aggressive. The officers also stated they could smell alcohol and Plaintiff was
behaving erratically. For example, Plaintiff laughed when the officers told him they were there
to investigate a disturbance.
The parties have drastically different versions of what happened next. Defendants state
that Plaintiff moved towards Officer Ramos and stumbled, so Officer Ramos placed his right
hand up and braced it against Plaintiff’s shoulder to keep Plaintiff from bumping into him.
Officer Rico testified that he saw Plaintiff stumble into Officer Ramos, and he thought Plaintiff
2

These facts are taken from the parties’ briefs and are supported by evidence in the record as stated by the parties.
References to the supporting exhibits are omitted, since they can be found in the parties’ briefs. The Court has not
considered any of Plaintiff’s purported “facts” that are unsupported by citation to the record and that violate Rule
56(C)(1)(A) and/or D.N.M.LR-Civ. 56.1. To the extent that a “disputed” fact is included in the Court’s recitation of
the facts, the Court has found there was not a legitimate dispute and the fact was not material to resolving this
matter. The facts included here have been deemed to be material by the Court and are not disputed unless otherwise
noted.

2

had committed a battery on Officer Ramos. Officer Ramos explained that Plaintiff said, “don’t
f–k with me like that” and he became louder and more aggressive. Officer Ramos told him that
if he continued to be aggressive then he was going to put him in handcuffs. Plaintiff stated that
he had just been injured and that he had a lawyer. Officer Ramos asked Plaintiff who was in the
residence and Plaintiff stated “I don’t give a f–k.” Plaintiff then said, “You want to shoot me, go
ahead and shoot me.”
Officer Ramos testified that Plaintiff stepped forward, closing the distance between
himself and Officer Rico, with his fists balled up. Officer Ramos feared that Officer Rico was in
danger of an immediate battery. At that point, each officer reached for one of Plaintiff’s arms,
fearing they were in danger because of Plaintiff’s aggression and erratic behavior. Once Plaintiff
was in custody, and after he calmed down, Plaintiff admitted to Officer Ramos that he had been
in a verbal dispute with two males before the officers arrived. On further investigation, a witness
told Officer Ramos that it was Plaintiff who had mentioned a gun during the initial dispute with
the two males.
In stark contrast to the facts as relayed by Defendants, Plaintiff claims that Officers Rico
and Ramos were the aggressors, and they attacked him without justification, escalating the
encounter into a violent exchange. Plaintiff claims he repeatedly told officers he had just been
injured, which was why he was reluctant to go near them when they approached his front door.
Plaintiff states he was pulled from the porch of his house for no reason, and hit and kicked
repeatedly as Officers Rico and Ramos attempted to handcuff him. He states he repeatedly asked
the officers to stop hurting him, but they continued to use excessive force. Plaintiff claims to
have suffered severe injuries as a result of the beating.

3

Plaintiff relies on the deposition testimony of Teri Milner and Tommy Gallegos who
were at his house on the night in question watching television. Their version of the encounter
between APD and Plaintiff aligns with Plaintiff’s own. Specifically, Ms. Milner explained that
after Plaintiff saw the officers outside of his residence, he seemed scared and reluctant to go
outside because of his recent injuries. Mr. Gallegos testified that he saw the officers grab
Plaintiff from inside the house and drag him outside as they were attempting to place him in
handcuffs.
In support of their various positions, both parties rely on Officer Ramos’ police lapel
video, which documented part of the encounter between Plaintiff and the officers on August 27,
2011. The video is initially blurry and dimly lit, and goes completely dark shortly after it begins.
The video shows the officers shine a flashlight onto Plaintiff, and they tell him they are there to
investigate a disturbance. He laughs. Shortly thereafter, one of the officers tells Plaintiff that if
he continues to be aggressive, they will have to place him in handcuffs. It is impossible to
discern what is happening on the video thereafter, because it is completely dark.
Plaintiff filed his initial Complaint on August 20, 2013, and an Amended Complaint on
February 26, 2016. In the operative Amended Complaint, Plaintiff brings claims for civil rights
violations under 42 U.S.C. § 1983 and the New Mexico Tort Claims Act. See Doc. 41.

He

alleges Defendants subjected him to excessive force and unreasonable seizure in violation of the
Fourth Amendment. In the instant Motion, Plaintiff claims he is entitled to judgment as a matter
of law that Officers Rico and Ramos lacked reasonable suspicion to detain him and lacked
probable cause to ultimately arrest him. Doc. 71. Defendants filed a Response on June 30, 2017
asserting the defense of qualified immunity. Doc. 75. Plaintiff filed a Reply on July 25, 2017.
Doc. 81.

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LEGAL STANDARD
I.

Summary Judgment

Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits . . . show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.”

Fed. R. Civ. P. 56(c).

Initially, the moving party bears the burden of

demonstrating the absence of a genuine issue of material fact. See Shapolia v. Los Alamos Nat’l
Lab., 922 F.3d 1033, 1036 (10th Cir. 1993) (citations omitted). Once the moving party meets its
initial burden, the nonmoving party must show that genuine issues remain for trial “as to those
dispositive matters for which it carries the burden of proof.” Applied Genetics Int’l Inc. v. First
Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1991) (citation omitted).
A fact is material if it could have an effect on the outcome of the suit. Smothers v. Solvay
Chems., Inc., 740 F.3d 530, 538 (10th Cir. 2014). A dispute over a material fact is genuine if the
evidence presented could allow a rational jury to find in favor of the nonmoving party. EEOC v.
Horizon/CMS Heathcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). A court is to view the
facts in the light most favorable to the non-moving party and draw all reasonable inferences in
favor of that party. Shero v. City of Grove, 510 F.3d 1196, 1200 (10th Cir. 2007). A court cannot
weigh the evidence and determine the truth of the matter, but instead determines whether there is
a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 243 (1986).
Under normal circumstances, the party seeking summary judgment bears the initial
burden of showing that there is an absence of evidence to support the nonmoving party’s case.
See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Bacchus Indus., Inc. v. Arvin
Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). Once the movant meets this burden, the

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nonmoving party must designate specific facts showing that there is a genuine issue for trial. See,
e.g., Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 256. The existence of some alleged,
immaterial factual dispute between the parties or a mere “scintilla of evidence” supporting the
nonmoving party’s position will not defeat an otherwise properly supported motion for summary
judgment. See Anderson, 477 U.S. at 252, 256.
“[A] complete failure of proof concerning an essential element of the nonmoving party’s
case necessarily renders all other facts immaterial,” and thus, the moving party is entitled to
judgment as a matter of law. Celotex, 477 U.S. at 323.
II.

Qualified Immunity

Additional steps are taken when a summary judgment motion raises a defense of
qualified immunity. Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). “When a
defendant asserts qualified immunity at summary judgment, the burden shifts to the plaintiff to
show that: (1) the defendant violated a constitutional right and (2) the constitutional right was
clearly established.” Id. The court may consider either of these prongs before the other “in light
of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236
(2009). “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.” Rojas v.
Anderson, 772 F.3d 1000, 1003 (10th Cir. 2013) (internal quotation marks omitted).
The “clearly established” inquiry exists in part to protect officers with “arguable probable
cause,” which exists where “a reasonable police officer in the same circumstances . . . and
possessing the same knowledge as the officer in question could have reasonably believed that
probable cause existed in light of well-established law.” Felders ex rel. Smedley v. Malcom, 755

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F.3d 870, 879 (10th Cir. 2014). Because qualified immunity is intended to protect “all but the
plainly incompetent or those who knowingly violate the law,” summary judgment on the basis of
qualified immunity is appropriate “[i]f the law did not put the officer on notice that his conduct
would be clearly unlawful.” Saucier v. Katz, 533 U.S. 194, 202 (2001) (quoting Malley v. Briggs,
475 U.S. 335, 341 (1986)). Thus, the “clearly established” inquiry “must be undertaken in light
of the specific context of the case, not as a broad general proposition.” Id. at 201. A right is only
considered to be clearly established when there is “a Supreme Court or Tenth Circuit decision on
point, or the clearly established weight of authority from other courts . . . have found the law to
be as the plaintiff maintains.” Morris v. Noe, 672 F.3d 1185, 1196 (10th Cir. 2012) (quotation
omitted).
DISCUSSION
I.

Motion for Partial Summary Judgment

Before turning to the merits of Plaintiff’s Motion, the Court takes the opportunity to point
out the flaws in Plaintiff’s briefing. Federal Rule of Civil Procedure 56(c)(1)(A) requires that a
party’s factual assertions be supported by “citing to particular parts of materials in the record.”
See also D.N.M.LR-Civ. 56.1(b). Plaintiff failed to cite to the record for most of his purported
facts. See Doc. 71, “Undisputed Facts” Nos. 1–4; 8–12. Furthermore, many of Plaintiff’s
purported facts are not only unsupported by reference to the record, they are simply immaterial.
The Court will not consider facts that are unsupported by citations to the record and that are not
material. Also, Plaintiff attached numerous pages of deposition testimony to his briefing, but he
did not identify the portions of those exhibits that he wishes to bring to the Court’s attention in
violation of this Court’s local rules. See D.N.M.LR-Civ. 10.6 (“The portions of an exhibit the
party wishes to bring to the Court’s attention must be marked, e.g., by brackets, shading, or

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underlining…”). This Court will not do the work of Plaintiff’s counsel and sift through the
record in an attempt to find support for Plaintiff’s factual allegations. See Mitchell v. City of
Moore, Oklahoma, 218 F.3d 1190, 1199 (10th Cir. 2000) (“The district court was not obligated
to comb the record in order to make [plaintiff’s] arguments for him.”). The Court has not
considered any of Plaintiff’s supposed facts that are improperly supported by the record.
Turning to the merits, Plaintiff brings a claim alleging constitutional violations under §
1983. Specifically, Plaintiff complains Defendants violated his right to be free from excessive
force and unreasonable seizures under the Fourth Amendment. See Doc. 41 ¶¶ 28–38. At the
outset, the Court observes that although Plaintiff seeks summary judgment on his unreasonable
seizure claim, Plaintiff begins his argument by asserting that “summary judgment appears
unwarranted; the testimony of the officers must be weighed by the jury alongside that of the
plaintiff and his witnesses.” Doc. 71 at 8. This remark is puzzling, but the Court assumes
Plaintiff’s counsel did not intend to argue that he is not entitled to summary judgment in his own
partial summary judgment motion.
Plaintiff continues on to argue that he is entitled to judgment in his favor on his claims
that the officers lacked reasonable suspicion to detain him, and lacked probable cause to arrest
him. Specifically, Plaintiff relies upon Officer Ramos’ lapel video that captured the encounter
between him and Officers Rico and Ramos, which he admits is dark. Plaintiff also relies upon
his deposition testimony and the deposition testimony of Ms. Milner and Mr. Gallegos to
contend that he did not stumble toward the officers, and that he was not aggressive, so the
officers had no cause to detain and arrest him. He claims the record clearly shows the officers
“lost their tempers and attacked.” Doc. 81 at 7.

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Defendants respond that Plaintiff is not entitled to summary judgment for two main
reasons. First, given the information about a man mentioning a gun during an argument at
Plaintiff’s home, as well as Plaintiff’s “unusual behavior and responses,” Officers Ramos and
Rico developed reasonable suspicion to justify an investigative detention of Plaintiff. Doc. 75 at
3. Second, Plaintiff’s aggressive actions towards Officers Ramos and Rico “gave them probable
cause for Plaintiff’s arrest based on a perception that Plaintiff had battered and/or assaulted an
officer.” Id. Defendants argue Plaintiff is asking the Court to complete an impossible task,
which is determine, based on a dark police lapel video, that Plaintiff was not intoxicated and did
not make any aggressive motions at Officers Rico and Ramos. Plaintiff asks the Court to
entirely disregard the testimony of Officers Ramos and Rico, and to grant him partial summary
judgment based solely on Plaintiff’s interpretation of the events portrayed on the dark lapel
video.

This, the Court cannot do.

In responding to Plaintiff’s motion, Defendants have

presented evidence which could suggest to a reasonable fact finder that Officers Ramos and Rico
had reasonable suspicion to conduct an investigatory detention of Plaintiff, and that they
developed probable cause to arrest Plaintiff.
A. Reasonable Suspicion
The facts in the record could lead a reasonable factfinder to conclude the officers had
reasonable suspicion to justify an investigatory detention of Plaintiff.3 Officer Ramos testified at
his deposition that when he illuminated Plaintiff with his flashlight, Plaintiff
ran into the house quickly, which was concerning, obviously, because the dispatch
initially mentioned someone with a gun, and in my experience, most people, when
we shine a flashlight on them, they don’t duck out and kind of take off. So I
found that suspicious right away, more concerning because, like I said, we
thought a gun may be involved.
3

Plaintiff contends Defendants could not have detained him without probable cause. See Doc. 71 at 3. This
contention misstates the standard justifying an investigative detention. It is well-settled that probable cause is not
required for a detention that has not turned into a full-fledged arrest. See Reid v. Georgia, 448 U.S. 438, 440 (1980).

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Doc. 75-1 at 4. Clearly, Officer Ramos could have reasonably suspected Plaintiff was engaged
in criminal activity, thereby justifying an initial detention. “An officer ‘can stop and briefly
detain a person for investigative purposes if the officer has a reasonable suspicion supported by
articulable facts that criminal activity may be afoot, even if the officer lacks probable cause.”
Cortez v. McCauley, 478 F.3d 1108, 1115 (10th Cir. 2007) (quoting Oliver v. Woods, 209 F.3d
1179, 1186 (10th Cir. 2000)). Defendants have presented evidence that Plaintiff was involved in
the initial altercation that led to Officers Rico and Ramos being dispatched to Dartmouth Dr. SE
in the first place. A witness specifically told Officer Ramos that Plaintiff had mentioned a gun
during a verbal dispute with two males. The Court finds that on these facts alone a reasonable
jury could conclude the officers had reasonable suspicion to initially detain Plaintiff.
B. Probable Cause
Next, the Court finds Defendants have shown a genuine dispute exists with regards to
whether the officers had probable cause to arrest Plaintiff. See Adler v. Wal–Mart Stores, Inc.,
144 F.3d 664, 670 (10th Cir. 1998) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S. Ct. 2505 (1986)) (“A ‘genuine’ dispute exists where the evidence is such that a reasonable
jury could resolve the issue either way.”). A reasonable factfinder could conclude the officers
believed Plaintiff committed a battery when he stumbled into Officer Rico, thus supplying
probable cause for the arrest. Officer Rico specifically testified that when Plaintiff stumbled into
Officer Ramos, it appeared to him that Plaintiff was committing a battery on Officer Ramos.
Doc. 75-2 at 2. A warrantless arrest is permissible when an officer “has probable cause to
believe that a person committed a crime.” Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir. 1995).
Probable cause to arrest exists only when the facts and circumstances within the officers’
knowledge, and of which they have reasonably trustworthy information, are sufficient in
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themselves to warrant a man of reasonable caution in the belief that an offense has been or is
being committed.” United States v. Valenzuela, 365 F.3d 892, 896 (10th Cir. 2004) (internal
quotation marks omitted). “If an officer has probable cause to believe that an individual has
committed even a very minor criminal offense in his presence, he may, without violating the
Fourth Amendment, arrest the offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354
(2001); see also Petersen v. Farnsworth, 371 F.3d 1219, 1223 (10th Cir. 2004) (“police officers
may constitutionally make arrests for minor offenses committed in their presence”).
Likewise, Defendants have presented sufficient evidence that shows a reasonable jury
could conclude Officer Ramos had probable cause to arrest Plaintiff based on a perception that
Plaintiff was about to batter Officer Rico.

Officer Ramos explained that Plaintiff was

uncooperative and stated “go ahead and shoot me.” Doc. 75-1 at 8. Officer Ramos saw Plaintiff
ball up his fists and he could see the veins in Plaintiff’s arms, and it scared him since he was
facing Officer Rico. Id. He testified that he thought Officer Rico was “going to get hit” and he
viewed Plaintiff as intentionally making an aggressive movement toward him. Id. Plaintiff
impermissibly asks the Court to disregard this testimony and find in his favor. It is not the
Court’s task at summary judgment to make credibility determinations; such decisions are to be
made solely by the jury. See Fed. R. Civ. P. 56(c); Anderson, 477 U.S. at 265 (“trial courts are
not to weigh evidence when deciding summary judgment motions”). Plaintiff presents witness
testimony from Tommy Gallegos and Terri Milner who state Officer Rico and Ramos reached
into the home, grabbed Plaintiff off his porch, place him in handcuffs, and dragged him to the
police vehicle. However, this testimony starkly contrasts with that of the officers themselves,
who emphatically state that Plaintiff was being combative and erratic, and that when he stumbled
toward them, they each feared for the other’s safety and believed Plaintiff had committed a

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battery and/or assault. Based on this competing testimony, which has factual support in the
record, a reasonable factfinder could certainly choose to discount the testimony of Mr. Gallegos
and Ms. Milner in favor of that of Officers Rico and Ramos.
C. Scott is Inapposite
Plaintiff next argues the lapel video supports his testimony and states the “mere existence
of disputed testimony by the officers will not defeat an otherwise properly supported motion for
summary judgment.” Doc. 71 at 2. He claims that the dark video displays no audible evidence
of a drunken stumble toward either officer, but this is simply counsel’s characterization and does
not necessarily mean such a stumble did not occur.
It is true there are limited circumstances in which a court may disregard one party’s
version of the facts at summary judgment. In Scott v. Harris, 550 U.S. 372 (2007), the Supreme
Court concluded that summary judgment was appropriate where video evidence “quite clearly
contradicted” the plaintiff’s version of the facts. 550 U.S. at 378–81. In Scott, the plaintiff
claimed he was driving safely while being pursued by police, but video evidence unquestionably
showed he was racing down a narrow street at an extremely high rate of speed, running red
lights, and weaving in and out of traffic. Id. at 379–80. The Supreme Court held that “[w]hen
opposing parties tell two different stories, one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” Id. at 380. The fact issue was whether
plaintiff was driving in a manner that would endanger human life, and the Court reasoned that
his version of events was “so utterly discredited by the record that no reasonable jury could have
believed him.” Id.

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Here, Plaintiff likens Officer Ramos’ lapel video to the video in Scott, and asserts no
reasonable jury could believe the officers’ version of events. Plaintiff argues the dark video
shows that he did not drunkenly stumble towards the officers, that he was not aggressive and
combative, and that he was innocently pulled from his home and beaten. The factual scenario in
Scott where the video “blatantly contradicted” the record does not exist here. See id. at 380. The
Court finds that a reasonable jury could believe the officers based on their testimony and based
on much of what is audible in the lapel video. The lapel video does little to aid Plaintiff’s
position. If anything, the video lends more support to Defendants’ contentions as to why
Plaintiff is not entitled to summary judgment. Plaintiff has not offered the Court any evidence
that blatantly discredits the officers’ version of events. Based on this record, a reasonable jury
could choose to credit the officers’ testimony instead of Plaintiff’s recounting of events.
II.

Defendants’ Request for Qualified Immunity

In the Response, Defendants invoked the defense of qualified immunity on Plaintiff’s
Fourth Amendment claims regarding reasonable suspicion and probable cause. See Doc. 75 at
16–23.

Defendants have not sought qualified immunity in a cross-motion for summary

judgment, which is the usual practice and the one preferred by the Court.

See Becker v.

Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013). At the hearing, the Court asked counsel for
Defendants why she had not filed a cross-motion raising the defense. Counsel stated that under
recent Tenth Circuit precedent, a district court can properly dismiss a claim on the grounds of
qualified immunity when the defense is raised in a defendant’s response to a plaintiff’s summary
judgment motion. Counsel directed the Court to the Tenth Circuit’s recent opinion in A.M. v.
Holmes, 830 F.3d 1123 (2016).

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In Holmes, the Tenth Circuit affirmed the district court’s dismissal of the plaintiff’s
claims on the grounds of qualified immunity when the defendant asserted the defense in his
response to the plaintiff’s summary judgment motion. Holmes, 830 F.3d at 1138. As in this
case, the defendant in Holmes did not file his own motion for summary judgment invoking
qualified immunity. See id. Once the defendant raised qualified immunity, the plaintiff devoted
“the lion’s share of her reply brief to the issue of qualified immunity.” Id. at 1137. The Tenth
Circuit reasoned that as a result, the plaintiff was “not situated to claim on appeal that she lacked
notice that she should present evidence (as well as legal argument) designed to forestall a
potential grant of qualified immunity” to the defendant. Id.
Here, Defendants invoked qualified immunity in the Response, and Plaintiff responded to
the defense in the Reply. Thus, the Court concludes that Plaintiff had sufficient notice that the
question of qualified immunity could be resolved in the Court’s ruling on his motion for partial
summary judgment. See id. at 1138. Moreover, at the hearing, counsel for Plaintiff indicated
that he was not challenging the procedural propriety of Defendants invoking the qualified
immunity defense in the Response rather than in a cross-motion for summary judgment. Counsel
reminded the Court that qualified immunity can be raised as late as trial, but maintains his
position that Defendants are not entitled to qualified immunity on any basis. Thus, the Court
concludes Defendants properly raised the qualified immunity defense in the Response.
A. Reasonable Suspicion
The Court finds that Defendants are entitled to dismissal of Plaintiff’s Fourth
Amendment claim concerning reasonable suspicion because Defendants have articulated a
reasonable and objective basis for suspecting that Plaintiff was engaged in criminal activity.4

4

At the hearing, the Court indicated it was going to allow additional briefing on whether Plaintiff’s reasonable
suspicion claim should be dismissed on the grounds of qualified immunity. However, having reexamined the

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“Under the reasonable suspicion standard, a police officer ‘must have a particularized and
objective basis for suspecting the particular person stopped of criminal activity.’” Vondrak v.
City of Las Cruces, 535 F.3d 1198, 1206 (10th Cir. 2008) (quoting United States v. Cortez, 449
U.S. 411, 417–18 (1981)). “An officer who stops and briefly detains a person for questioning
must be able to point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion. Reasonable suspicion does not
rise to the level of probable cause, but it does demand something more than an inchoate and
unparticularized suspicion or hunch.” Romero v. Story, 672 F.3d 880, 886 (10th Cir. 2012)
(internal quotations, quotation marks, and alterations omitted). A police officer is entitled to
qualified immunity if the officer had “arguable reasonable suspicion” in that a reasonable officer
could have believed that reasonable suspicion existed to detain the plaintiff. Vondrak, 535 F.3d
at 1207.
The Court cannot conclude that “no reasonably competent officer” in Officer Rico’s and
Officer Ramos’ position would have detained Plaintiff, because there were numerous factors
from which a reasonable officer could have concluded that he had reasonable suspicion under the
totality of the circumstances. See Malley, 475 U.S. at 341; see also Saucier, 533 U.S. at 208. “A
police officer cannot legally detain a person simply because criminal activity is afoot. The
particular person that is stopped must be suspected of criminal activity.” United States v. Fisher,
597 F.3d 1156, 1158–59 (10th Cir. 2010). Here, Defendants had a particularized and objective
basis to detain Plaintiff. This case involves a 911 call from a witness who explained that men
were fighting near Plaintiff’s home, and that one of the men mentioned a gun. When Officers
arrived at the scene, another witness told them the fight was coming from Plaintiff’s residence.

submissions of the parties, and in particular having seen that Plaintiff’s Reply addressed Defendants’ arguments
regarding qualified immunity, finds that additional briefing limited to this issue is not necessary.

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Officers then encountered Plaintiff on his front porch, and he became combative and
confrontational. Officers also thought that he appeared to be intoxicated, which was reasonable
given that Plaintiff smelled like alcohol and was behaving erratically. Even given the possibility
that each element of Plaintiff’s actions, taken individually, might not seem nefarious, a
reasonable officer considering the totality of the circumstances would understandably be
concerned that a man alleged to have threatened someone with a firearm would possibly use that
firearm against Officers Ramos and Rico. Moreover, the Court agrees with Defendants that
Plaintiff has not pointed to any clearly established law that prohibits officers from investigating a
disturbance involving a gun by speaking with residents of the house to which officers were
referred. See Lundstrom v. Romero, 616 F.3d 1108, 1120 (10th Cir. 2010) (“A police officer
may take such steps as are reasonably necessary to protect his safety and to maintain the status
quo during a detention.”). Therefore, the Court dismisses Plaintiff’s Fourth Amendment claim
regarding reasonable suspicion on the grounds of qualified immunity.
B. Probable Cause
The Court, however, finds that Defendants are not entitled to dismissal of Plaintiff’s
Fourth Amendment claim regarding probable cause because there are numerous genuine disputes
of material fact in this regard and a trial will be required. Although it is undisputed that Officers
Ramos and Rico testified that they believed they had probable cause to arrest Plaintiff, it is also
undisputed that Plaintiff and his eyewitnesses testified to the contrary. Thus, the Court cannot
conclude as a matter of law that a reasonable officer could have believed Plaintiff committed a
battery and/or assault on Officers Ramos and Rico, simply because it is disputed as to whether
any battery or assault occurred in the first place.

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CONCLUSION
Plaintiff has not met his burden of establishing he is entitled to partial summary judgment
on his claims that Defendants lacked reasonable suspicion and probable cause for his detention
and arrest. Therefore, Plaintiff’s Motion for Partial Summary Judgment (Doc. 71) is DENIED.
Furthermore, Defendants are entitled to qualified immunity on Plaintiff’s claim that Officers
Rico and Ramos lacked reasonable suspicion to detain him, but Defendants are not entitled to
qualified immunity as to Plaintiff’s claims regarding probable cause.
IT IS SO ORDERED.
________________________________
UNITED STATES DISTRICT JUDGE

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