Ramirez et al v. County of Santa Fe et al
ORDER by Magistrate Judge Gregory B. Wormuth GRANTING 41 Defendants' Motion for Summary Judgment. (km)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LUIS RAMIREZ, NORMA RAMIREZ,
and JACKIE MONTIJO, a minor,
Civ. No. 15‐1095 GBW/SCY
BOARD OF COUNTY COMMISSIONERS
OF SANTA FE COUNTY, et al.,
ORDER GRANTING DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
This matter comes before the Court on the Motion for Summary Judgment Based
on Qualified Immunity brought by Defendants Board of County Commissioners of
Santa Fe County, Detective Paul Prentice, and Agent Eddie Webb. Doc. 41.1 The Court
has reviewed the Motion and related briefing (docs. 45, 46), and, being fully advised,
will GRANT the Motion for the reasons set forth below.
Plaintiffs named Agent Brian Nissen as a Defendant in their Amended Complaint (see doc. 30), but the
docket indicates that Plaintiffs have failed to perfect service of process upon him. See FED. R. CIV. P.
4(l)(1) (Unless service is waived, proof of service must be made to the Court by the server’s affidavit).
The Court therefore lacks personal jurisdiction over putative Defendant Nissen, and he is not an official
party to the action. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999).
Moreover, Defendants gave Plaintiffs notice of the lack of summons or service upon putative Defendant
Nissen in their Motion for Summary Judgment, filed on August 15, 2016. Doc. 41 at 1. Because more than
ninety days have passed since Plaintiffs’ Amended Complaint was filed (see doc. 30), and Plaintiffs have
not given good cause for their failure to serve Brian Nissen since being put on notice, Plaintiffs’ claims
against Defendant Nissen will be dismissed without prejudice. FED. R. CIV. P. 4(m).
Plaintiffs’ claims stem from the events surrounding the arrest of Plaintiff Norma
Ramirez on October 25, 2013. See generally doc. 30. This matter was removed to federal
court on December 3, 2015, and Plaintiffs filed their First Amended Complaint on April
12, 2016. Docs. 1, 30. In their Amended Complaint, Plaintiffs assert claims under 42
U.S.C. § 1983 against individual Defendants Paul Prentice, Eddie Webb, and Brian
Nissen (“the individual Defendants”) for the unconstitutional use of excessive force
during the arrest of Plaintiff Norma Ramirez, and against Defendant Board of County
Commissioners of Santa Fe County (“the municipal Defendant”) on the basis of
municipal liability for the individual defendants’ actions.2 See generally doc. 30.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(a), this Court must “grant summary
judgment 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
movant bears the initial burden of “show[ing] ‘that there is an absence of evidence to
support the nonmoving party’s case.’” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d
887, 891 (10th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Once
the movant meets this burden, the non‐moving party is required to designate specific
Plaintiffs also included various claims based on the New Mexico Tort Claims Act as well as a claim for
punitive damages in their Amended Complaint, but the Court dismissed them in its Order Granting
Partial Summary Judgment on April 21, 2016. Doc. 34.
facts showing that “there are . . . genuine factual issues that properly can be resolved
only by a finder of fact because they may reasonably be resolved in favor of either
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex, 477 U.S. at 324.
However, summary judgment motions based upon the defense of qualified
immunity are reviewed differently from other summary judgment motions. This is so
because qualified immunity is “designed to protect public officials from spending
inordinate time and money defending erroneous suits at trial.” Clark v. Edmunds, 513
F.3d 1219, 1222 (10th Cir. 2008). Therefore, when a public official is entitled to qualified
immunity, the entitlement relieves the official from bearing any of the burdens of
litigation, including discovery. Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009). The Supreme
Court “has directed the lower federal courts to apply qualified immunity broadly, to
protect from civil liability for damages all officers except ‘the plainly incompetent or
those who knowingly violate the law,’” in order to avoid unduly inhibiting officers in
performing their official duties. Wilson v. City of Lafayette, 510 F. App’x 775, 780 (10th
Cir. 2013) (unpublished) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986), and Medina
v. Cram, 252 F.3d 1124, 1127 (10th Cir. 2001)). The qualified immunity standard allows
government officials “ample room for mistaken judgments,” shielding them from
liability for reasonable error. Applewhite v. U.S. Air Force, 995 F.2d 997, 1000 (10th Cir.
1993) (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)). Thus, qualified immunity is
“applicable unless the official’s conduct violated a clearly established constitutional
right.” Pearson v. Callahan, 555 U.S. 223, 232 (2009).
When a defendant moves for qualified immunity on an excessive force claim, the
burden shifts to the plaintiff to show (1) “that the force used was impermissible (a
constitutional violation)[,]” and (2) “that objectively reasonable officers could not have
thought the force constitutionally permissible (violates clearly established law).” Cortez
v. McCauley, 478 F.3d 1108, 1128 (10th Cir. 2007); see also Medina, 252 F.3d at 1128. This
is a “strict two‐part test” that must be met before the defendant asserting qualified
immunity again “bear[s] 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, 513 F.3d at 1222. The Court may address the two
prongs of the test in any order. Pearson, 555 U.S. at 236.
Determining whether the allegedly violated right was “clearly established”
depends on whether “the contours of the right [were] sufficiently clear that a reasonable
official would understand that what he is doing violates that right.” Anderson v.
Creighton, 483 U.S. 635, 640 (1987). “Ordinarily, in order for the law to be clearly
established, there must be a Supreme Court or Tenth Circuit decision on point, or the
clearly established weight of authority from other courts must have found the law to be
as the plaintiff maintains.” Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010) (quotation
omitted). While the plaintiff need not locate “a case directly on point,” nevertheless
“existing precedent must have placed the statutory or constitutional question beyond
debate.” Ashcroft v. al‐Kidd, 563 U.S. 731, 741 (2011).
Whether the motion for summary judgment is based on qualified immunity or
not, the Court decides the motion on the basis of the facts as construed in the light most
favorable to the non‐moving party. Consequently, it must keep in mind three
principles. First, the Court’s role is not to weigh the evidence, but to assess the
threshold issue of whether a genuine issue exists as to material facts requiring a trial.
See Liberty Lobby, 477 U.S. at 249. “An issue is ‘genuine’ if there is sufficient evidence on
each side so that a rational trier of fact could resolve the issue either way. An issue of
fact is ‘material’ if under the substantive law it is essential to the proper disposition of
the claim.” Thom v. Bristol Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (internal
citation omitted). Second, the Court must resolve all reasonable inferences and doubts
in favor of the non‐moving party, and construe all evidence in the light most favorable
to the non‐moving party. See Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014); see also Riggins
v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009) (noting that courts generally “accept the
facts as the plaintiff alleges them” when considering whether a plaintiff has overcome
defendant’s assertion of qualified immunity at the summary judgment stage).
However, “a plaintiff’s version of the facts must find support in the record” at the
summary judgment stage. Thomson v. Salt Lake Cty., 584 F.3d 1304, 1312 (10th Cir. 2009).
Third, the court cannot decide any issues of credibility. See Liberty Lobby, 477 U.S. at
255. “[T]o survive the . . . motion, [the non‐movant] need only present evidence from
which a jury might return a verdict in his favor.” Id. at 257.
A. Excessive Force
An excessive force claim arising in the context of an arrest or detainment of a free
citizen invokes the protections of the Fourth Amendment’s guarantee of citizens’ right
“to be secure in their persons . . . against unreasonable . . . seizures” of the person.
Graham v. Connor, 490 U.S. 386, 394 (1989). Under the applicable Tenth Circuit rule, an
excessive force claim cannot succeed unless a plaintiff can establish (1) that the officers
“used greater force than would have been reasonably necessary to effect a lawful
seizure,” and (2) “some actual injury caused by the unreasonable seizure that is not de
minimis, be it physical or emotional.” Cortez, 478 F.3d at 1129.3
The proper application of the Fourth Amendment test of reasonableness
“requires careful attention to the facts and circumstances of each particular case[.]”
Graham, 490 U.S. at 396. Specifically, in balancing the nature of the intrusion on the a
plaintiff’s Fourth Amendment interests against the countervailing government interests
Since Cortez was decided, the Tenth Circuit has indicated that the requirement of an actual injury that is
more than de minimis to state an excessive force claim may apply “only in Fourth Amendment excessive
force cases based on handcuffing.” Maresca v. Bernalillo Cty., 804 F.3d 1301, 1315 (10th Cir. 2015)
(collecting Tenth Circuit cases and quoting the Supreme Court’s directive in Hudson v. McMillan, 503 U.S.
1, 4 (1992) that courts should “decide excessive force claims based on the nature of the force rather than
the extent of the injury”). Regardless, the Cortez rule is applicable to some extent in the present case, as
Plaintiff Norma Ramirez does claim excessive force based on handcuffing. For the non‐handcuffing
claims, the Court’s ruling is not dependent upon the “more than de minimis injury” requirement.
at stake, the Court must consider (1) the severity of the crime at issue; (2) whether the
suspect poses an immediate threat to the safety of the officers or others; and (3) whether
the suspect is actively resisting arrest or attempting to evade arrest by flight. Id.
Whether a particular use of force was “reasonable” must be evaluated “from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Id. This evaluation is an objective one, requiring inquiry into the legal
reasonableness of the action at the time of the alleged violation, without regard for the
subjective motivations of the defendant. Holland ex rel. Overdorff v. Harrington, 268 F.3d
1179, 1186 (10th Cir. 2001); see also Cortez, 478 F.3d at 1125 (“An officer’s evil intentions
will not make a Fourth Amendment violation out of an objectively reasonable use of
force; nor will an officer’s good intentions make an objectively unreasonable use of force
B. Municipal Liability
Municipalities cannot be held liable for the acts of their employees under 42
U.S.C. § 1983 on the basis of a respondeat superior theory of liability. Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 694 (1978); see also Bryson v. City of Okla. City, 627 F.3d 784, 788
(10th Cir. 2010). Instead, “[a] plaintiff suing a municipality under section 1983 for the
acts of one of its employees must prove: (1) that a municipal employee committed a
constitutional violation; and (2) that a municipal policy or custom was the moving force
behind the constitutional violation.” Myers v. Okla. Cty. Bd. of Cty. Comm’rs, 151 F.3d
1313, 1316 (10th Cir. 1998). In order to meet this burden, a plaintiff must first “identify a
government’s policy or custom that caused the injury.” Schneider v. City of Grand
Junction Police Dep’t, 717 F.3d 760, 769 (10th Cir. 2013) (internal citation omitted). The
plaintiff is then required to show “that the policy was enacted or maintained with
deliberate indifference to an almost inevitable constitutional injury.” Id. The Tenth
Circuit has distilled these requirements into three specific elements: “(1) official policy
or custom[;] (2) causation[;] and (3) state of mind.” Id.
An official policy or custom may take five different forms. See Cacioppo v. Town of
Vail, Colo., 528 F. App’x 929, 931‐32 (10th Cir. 2013). Though Plaintiffs do not brief the
issue of municipal liability in their response to Defendants’ Motion for Summary
Judgment (see generally doc. 45), Plaintiffs plead in their Complaint that the municipal
Defendant’s “failure to adequately train and supervise County Deputies” demonstrated
its deliberate indifference to “grave constitutional injury to citizens” likely to result
from such failure. See doc. 30 at 8. Plaintiffs also assert that the municipal Defendant’s
actions “are [a]n act or omission of a final policymaker for which Defendant County
may be held liable.” See doc. 30 at 9. These allegations correspond to the third and fifth
forms of an official policy or custom enumerated by the Tenth Circuit—namely, “the
decisions of employees with final policymaking authority” and “the failure to
adequately train or supervise employees, so long as that failure results from deliberate
indifference to the injuries that may be caused.” 528 F. App’x at 932. Plaintiffs plead
that these “customs, practices, or policies” were the moving force behind the alleged
constitutional violations. Doc. 30 at 9.
The Local Rules regarding Summary Judgment procedures require that a non‐
moving party’s response to a Motion for Summary must contain:
. . . a concise statement of the material facts cited by the movant as to
which the non‐movant contends a genuine issue does exist. Each fact in
dispute must be numbered, must refer with particularity to those portions
of the record upon which the non‐movant relies, and must state the
number of the movant’s fact that is disputed. All material facts set forth in
the Memorandum will be deemed undisputed unless specifically
controverted. The Response may set forth additional facts other than
those which respond to the Memorandum which the non‐movant
contends are material to the resolution of the motion. Each additional fact
must be lettered and must refer with particularity to those portions of the
record upon which the non‐movant relies.
D.N.M.LR‐Civ. 56.1(b). Plaintiffs’ response in opposition to Defendants’ Motion for
Summary Judgment challenged certain portions of Defendants’ alleged undisputed
facts numbered 15, 16, 17, and 18 in their summary judgment motion, but Plaintiffs did
not include any additional material facts that they contend are disputed. See doc. 45 at
2‐5. The Court will therefore treat as undisputed all material facts enumerated in
Defendants’ Motion for Summary Judgment (doc. 41) other than the portions of
Defendants’ facts 15‐18 that were specifically controverted by Plaintiffs.
1. Defendant Paul Prentice has served as a Detective for the Sheriff’s Office
of Santa Fe County, New Mexico since 2013 and was acting under color of
state law at all times material hereto. See doc. 41 at 4.
2. Defendant Eddie Webb was employed by the Sheriff’s Office of Santa Fe
County as an Agent in the Warrants/Fugitives Division and was acting
under color of state law at all times material hereto. Id. at 7‐8.
3. On the afternoon of September 15, 2013, Luis Ramirez’s ex‐wife, Elizabeth
Good, contacted the Santa Fe County Regional Emergency
Communications Center to report that Luis Ramirez had threatened her
life. Id. at 4.
4. During the September 15 call, Ms. Good made the following statements to
Deputy Andrew Houlton:
Norma Ramirez had telephoned her at 2:00 AM that day to
inform her that she overheard her husband Luis Ramirez say
that he was going to hire someone to kill Ms. Good. Id.
Luis Ramirez had a history of making threats, of violence,
and of domestic abuse; that Luis Ramirez had been arrested
earlier that same day as a result of a domestic dispute. Id.
Norma Ramirez had indicated her willingness to testify
against Luis Ramirez in court regarding the statement that
he wanted to hire someone to kill Ms. Good. Id.
5. After Deputy Houlton prepared an incident report detailing Ms. Good’s
telephone call, Defendant Prentice was assigned to the investigation. Id. at
6. During his investigation, Defendant Prentice confirmed that Luis Ramirez
had been arrested on September 15 as a result of a domestic dispute with
his stepson, and that he was currently incarcerated in the Santa Fe County
Adult Detention Facility. Id.
7. Defendant Prentice interviewed Norma Ramirez on the following day,
September 16, 2013, regarding the alleged threat against Ms. Good. Id. at
8. During that interview, Norma Ramirez confirmed the following:
She overheard her husband, Luis Ramirez, talking to a third
party about attempting to find someone to kill Ms. Good. Id.
Luis Ramirez had been arrested on September 15, 2013. Id.
Norma Ramirez called Ms. Good on September 15, 2013 after
her husband’s arrest to inform Ms. Good of the conversation
she overheard. Id.
The conversation regarding killing Ms. Good had taken
place at some earlier point in time, but Norma Ramirez
waited to inform Ms. Good of the threat because she was
afraid of Luis. Id.
When Norma confronted Luis about overhearing the
conversation, he threatened to kill Norma if she reported
what she heard to the police or to Ms. Good. Id.
Luis was a violent alcoholic who had threatened Norma
with violence before. Id. at 6.
Norma was planning to divorce Luis once he was released
from jail, and the couple would no longer be sharing a home.
9. Plaintiff Norma Ramirez informed Defendant Prentice that Luis Ramirez
kept two rifles and a gun in the Ramirez home during the September 16
10. Luis Ramirez was released from custody on September 17, 2013. Id.
11. Ms. Good informed Defendant Prentice on October 24, 2013 that Norma
Ramirez had failed to appear at a hearing to testify regarding the threat
she overheard Luis Ramirez make against Ms. Good’s life, and that a
bench warrant was issued for Norma’s arrest. Id.
12. Ms. Good expressed concern that Luis Ramirez had kept his wife from
13. Defendant Prentice confirmed that Norma Ramirez failed to comply with
a subpoena compelling her testimony on October 11, 2013, and the state
District Court issued a bench warrant for Norma Ramirez’s arrest that
same day. Id.
14. Defendant Prentice verified that the bench warrant for Norma Ramirez’s
arrest was active and facially valid on October 24, 2013. Id.
15. Defendant Prentice went to the Ramirez home at 4804 Golden Ray Circle
in Santa Fe, New Mexico on October 24, 2013 at 10:00 AM in order to
execute the warrant, along with two other sheriff’s detectives. Id. at 6‐7.
16. Defendant Prentice was aware that there had been, and possibly still were,
multiple firearms at 4804 Golden Ray Circle. Id. at 7.
17. While loudly knocking on the front door several times and announcing
themselves as employees of the Sheriff’s Department, the detectives
noticed someone inside the Ramirez home look at them from behind an
upstairs window curtain and quickly move away from the window. Id.
18. Following several failed attempts to gain consensual entry by knocking
and announcing themselves, the sheriff’s detectives requested the
assistance of Sheriff’s Warrants/Fugitives Agents Defendant Eddie Webb
and Defendant Brian Nissen. Id.
19. After Defendants Webb and Nissen arrived at the home, they also
knocked and announced themselves at the front door of the Ramirez
home several times, but could not gain entry. Id. at 8.
20. Defendants Webb and Nissen gained entry to the garage by using a
garage door opener that they found in the Ramirez family car, and they
then entered the Ramirez home through a door inside the garage. Doc. 45
21. The agents’ entry into the Ramirez home for the purpose of executing a
facially valid bench warrant against Norma Ramirez was not an illegal or
unconstitutional entry. See doc. 33.
22. After gaining entry to the Ramirez home, Defendants Webb and Nissen
repeatedly called out Norma Ramirez’s name and announced that they
were from the Sheriff’s Department. Doc. 30 at 4; doc. 41 at 8.
23. In response to hearing the officers call her name, Norma Ramirez
appeared at the top of the stairs, shouting “please don’t shoot me!” and
raising her hands in the air. Doc. 30 at 4.
24. Either Defendant Webb or Defendant Nissen then shouted, “God damn it,
we were about to start shooting!” Id.
25. Norma Ramirez then descended the stairs with her hands raised while
Defendants Webb and Nissen held her at gunpoint. Id.; see also doc. 41 at 8.
26. Defendant Prentice entered the house, advised Norma Ramirez of the
active bench warrant for her arrest, and gave her the name of the issuing
27. Either Defendant Webb or Defendant Nissen patted down Norma
Ramirez and then placed her in handcuffs by quickly spinning her around
and pushing her against the wall. Id. at 9; doc. 30 at 4; doc. 45 at 4.
28. Norma Ramirez did not physically resist the arrest at any point. See
generally doc. 41 at 8‐9; see also doc. 45 at 4.
29. One of the officers asked Norma Ramirez whether any other people were
present in the home, and she informed them that her husband and
daughter, Plaintiffs Luis Ramirez and Jackie Montijo, respectively, were
upstairs. Doc. 41 at 8.
30. Either Defendant Webb or Agent Nissen called for Plaintiffs Luis Ramirez
and Jackie Montijo to come downstairs one at a time. Doc. 41 at 8.
31. Plaintiff Jackie Montijo descended the stairs first with her hands raised,
while Defendant Webb and Agent Nissen held her at gunpoint. Doc. 30 at
32. Once Plaintiff Montijo reached the bottom of the stairs, she was told to
lower her hands, and no force of any kind was used against her thereafter.
Doc. 30 at 4; doc. 41 at 9; see generally docs. 30, 41, 45.
33. Plaintiff Luis Ramirez descended the stairs with his hands raised, while
Defendant Webb and Agent Nissen held him at gunpoint. Doc. 30 at 5.
34. Once Plaintiff Luis Ramirez reached the bottom of the stairs, he was told
to lower his hands, and no force of any kind was used against him
thereafter. Doc. 41 at 9; see generally docs. 30, 41, 45.
35. The officers put away their firearms once every member of the family was
downstairs. Doc. 41 at 9.
36. Norma Ramirez was then transported to the Sheriff’s Office to be
interviewed by Defendant Prentice and another detective regarding the
matter in which she failed to appear to testify. Doc. 41 at 9.
37. Five to ten minutes passed between the initial entry into the house and the
time the officers left with Norma Ramirez in custody. Doc. 41 at 9.
1. The individual Defendants are entitled to qualified immunity on Plaintiffs’
excessive force claim based on the “clearly established” prong.
In their motion, the individual Defendants explicitly move for summary
judgment on the basis of qualified immunity. See doc. 41 at 1‐3. In so doing, they
expressly and correctly state that “[o]nce an individual defendant asserts qualified
immunity (as is the situation here), the burden shifts and the plaintiff must come
forward with sufficient evidence to establish two prongs: that the defendant’s alleged
conduct violated the law, and that the law violated was clearly established when the
violation occurred.” Id. at 3 (citing Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847
F.2d 642, 645‐46 (10th Cir. 1988)). Despite being advised of this burden, Plaintiffs’
response makes no effort to satisfy the “clearly established” prong. While Plaintiffs
contest Defendants’ reliance on two cases,4 they point to no case to demonstrate that the
alleged constitutional violation committed by the officers was contrary to clearly
established law. See generally doc. 45. In fact, the response fails to mention the term
“clearly established.” Id. Instead, Plaintiffs argue that “[n]owhere have Defendants
presented any solid laws or cases granting qualified immunity to officers” in a case with
similar underlying facts. Id. at 7. However, as noted above, the burden to come
forward with cases demonstrating that the violation was contrary to clearly established
law rests with Plaintiffs. They utterly fail to meet that burden. As such, the individual
Defendants are entitled to qualified immunity. See Gutierrez v. Cobos, 841 F.3d 895, 901‐
03 (10th Cir. 2016); see also Rojas v. Anderson, 727 F.3d 1000, 1003‐04 (10th Cir. 2013);
Smith v. McCord, 707 F.3d 1161, 1162 (10th Cir. 2013).
See doc. 45 at 6‐7 (discussing Cortez v. McCauley, 478 F.3d 1108 (10th Cir. 2007) and Rodriguez v. Farrell,
280 F.3d 1341 (11th Cir. 2002)),
2. The municipal Defendant is entitled to summary judgment because no
constitutional violation has been established.
“[U]nlike various government officials, municipalities do not enjoy immunity
from suit—either absolute or qualified—under § 1983.” Leatherman v. Tarrant Cty.
Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 166 (1993). Thus, the finding that
the individual Defendants are entitled to summary judgment on the basis of qualified
immunity does not automatically dispose of the claim against the municipal Defendant.
It is true that “a municipality may not be held liable where there was no underlying
constitutional violation by any of its officers.” Green v. Post, 574 F.3d 1294 (10th Cir.
2009) (quoting Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006)). However, the
Court has not yet addressed whether there was any underlying constitutional violation
committed by the officers in this case. Rather, the decision to dismiss the individual
Defendants rests entirely on Plaintiffs’ failure to carry their burden in defeating the
qualified immunity defense. It is possible for an officer to escape liability on the basis of
qualified immunity and for the officer’s employing municipality to nevertheless be
liable for a constitutional violation. See Bass v. Pottawatomie Cty. Pub. Safety Ctr., 425 F.
App’x 713, 717‐18 (10th Cir. 2011); Boyd v. Montezuma Cty. Sheriffʹs Office, No. 15‐CV‐
00101‐MEH, 2015 WL 2329061, at *1 (D. Colo. May 13, 2015) (discussing the relevant
jurisprudence on the question of whether municipal liability may obtain despite the
grant of qualified immunity to all individual defendants); Starkey ex rel. A.B. v. Boulder
Cty. Soc. Servs., 569 F.3d 1244, 1263 n.4 (10th Cir. 2009) (“We recognize that judgment in
favor of the individual Defendants in their personal capacities would not necessarily
bar a claim against [the municipal employer] (or the individual defendants in their
Thus, the Court will now address whether, under the standards applicable to
non‐qualified immunity summary judgment motions, a genuine issue of material fact
exists as to whether the officers effecting the arrest of Norma Ramirez used
unconstitutional excessive force against any of the Plaintiffs.
As a preliminary matter, Plaintiffs Luis Ramirez and Jackie Montijo rest their
excessive force claims solely on the officers’ act of holding them at gunpoint during the
encounter. They do not allege that the officers used any other force against them.
“[T]he use of a gun does not in and of itself make an encounter an unlawful seizure.”
Lundstrom v. Romero, 616 F.3d 1108, 1121 (10th Cir. 2010). However, “the pointing of
firearms should be predicated on at least a perceived risk of injury or danger to the
officers or others, based upon what the officers know at that time.” Id. (internal citation
and alterations omitted); see also Holland, 268 F.3d at 1192. Moreover, “[p]ointing a
firearm directly at a child calls for even greater sensitivity to what may be justified or
what may be excessive under all the circumstances.” Id. at 1193. As with any excessive
force claim, the pertinent question in determining the reasonableness of the use of
weapons by officers is whether the officers acted reasonably in light of the “totality of
the circumstances as viewed from the perspective of a reasonable officer on the scene.”
Lundstrom, 616 F.3d at 1121; see also Graham, 490 U.S. at 396 (“the question is whether the
totality of the circumstances justifies a particular sort of seizure” (citation and internal
alterations omitted)); Medina, 252 F.3d at 1132. With these principles in mind, the Court
will address the claims of the adult Plaintiffs separately from the claim of Plaintiff Jackie
Montijo, who was eleven years old at the time of her mother’s arrest.
The officers did not use excessive force against Plaintiffs Luis and Norma
While it is true that “force is least justified against nonviolent misdemeanants
who do not flee or actively resist arrest,” such as Plaintiff Norma Ramirez, Casey v. City
of Federal Heights, 509 F.3d 1278, 1285 (10th Cir. 2007), other considerations weigh in
favor of finding that the force used by the individual Defendants was reasonable.
“Although the severity of the alleged offense is a factor in evaluating an excessive force
claim, a court must also consider officer safety concerns and whether the suspect
cooperates or resists.” Cortez, 478 F.3d at 1128. Here, the arresting officers had valid
reason both to be concerned for their safety and also to believe that Norma Ramirez did
not intend to cooperate.
As to suspect cooperation or resistance, the residents of the home did not allow
the police officers to enter voluntarily. Suspect Norma Ramirez refused to open the
door despite several attempts by the uniformed officers to knock and announce
themselves at the front door, including the announcement that their purpose was to
execute an arrest warrant against her.
As to safety concerns, the officers had reason to believe that people other than
the suspect were present inside the home, and that at least one occupant of the home
had access to firearms and was prone to violence. The officers were aware that Plaintiff
Luis Ramirez owned two rifles and a gun, which he kept in the home where they were
effecting the arrest. The officers were aware that Norma Ramirez had reported that
Luis Ramirez recently engaged in efforts to have his ex‐wife killed. Finally, the officers
knew that Norma Ramirez reported being afraid of Luis and that Luis had an extensive
history of threats, violence, and domestic abuse, including a domestic violence arrest
only six weeks prior to the incident at issue. Cf. Cortez, 475 F.3d at 1128 (there is no
indication that a suspect is resisting or attempting to evade arrest where he opens the
door of his residence to police voluntarily, nor is there any indication of a threat to the
officers’ safety where “[n]othing suggests that the Plaintiffs were armed or that other
persons besides the Plaintiffs were present.”); see also Davis v. Clifford, 825 F.3d 1131,
1135 (10th Cir. 2016) (noting that force may not be justified by officer safety concerns
and may be excessive where “there is no evidence that [an arrestee] had access to a
weapon or that she threatened harm to herself or others.”).
Although Norma Ramirez was not suspected of a violent crime, concerns about
officer safety were nonetheless reasonable in light of the likely presence of firearms in
the home, the strong possibility that a person with a known history of violence was an
occupant of the home, and the occupants’ refusal to open the door to the arresting
officers. See Cortez, 478 F.3d at 1128; see also In re Estate of Bleck ex rel. Churchill, 643 F.
App’x 754, 756 (10th Cir. 2016) (collecting cases in noting that “we do have a good deal
of precedent indicating that officers may unholster their weapons when they enter
potentially dangerous situations”).
The Court must “assess objective reasonableness based on whether the totality of
the circumstances justified the use of force, and pay careful attention to the facts and
circumstances of the particular case.” Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d
1255, 1260 (10th Cir. 2008) (citation omitted). It was “objectively reasonable” from “the
perspective of a reasonable officer on the scene” for the officers to ensure their own
safety by keeping their weapons drawn until all of the occupants of the home were
within the area of their immediate control and confirmed to be unarmed and
cooperative. See Graham, 490 U.S. at 397, 396.
The sole physical contact between the officers and any of the Plaintiffs was an
officer’s pat‐down of Norma Ramirez followed by spinning her around abruptly and
pushing her against the wall to place handcuffs on her. “Our Fourth Amendment
jurisprudence has long recognized that the right to make an arrest . . . necessarily carries
with it the right to use some degree of physical coercion or threat thereof to effect it.”
Id. at 396. “[P]olice have historically been able to use more force in making an arrest
than in effecting an investigative detention.” Cortez, 478 F.3d at 1126. Moreover, a
claim of excessive force based on handcuffing “requires some actual injury that is not de
minimis, be it physical or emotional.” Id. at 1129.
Plaintiff Norma Ramirez does not allege any physical injury as a result of the
handcuffing, and her allegation of emotional injury is limited to being “terrified” both
before and while descending the stairs and having been caused “great emotional
distress” when an officer shouted that they “were about to start shooting.” See doc. 45‐1
at 1‐2; see also doc. 41‐7 at 4 (in response to whether she was “hurt  physically in any
way,” Norma Ramirez testified during her deposition that “I do remember I feel so bad
because I was only a witness, and they don’t have the right to enter into my house to
arrest me”). She alleges no emotional injury specifically as a result of the handcuffing,
arguing instead that the violence with which she was spun around and pushed against
the wall constituted excessive physical force. See generally docs. 30, 45; see also doc. 45‐1
at 2. That claim is not supported by the relevant jurisprudence. See, e.g., Cortez, 478
F.3d at 1129 (no claim for excessive force based on handcuffing where the handcuffs
were so tight as to leave red marks that were visible for days afterward); Segura v. Jones,
259 F. App’x 95, 103‐04 (10th Cir. 2007) (no excessive force where a 370‐pound officer
pushed a female shoplifting suspect “against the wall in order to place the handcuffs on
her” even though the arrestee’s face hit the wall, because “there were no visible marks,
cuts or abrasions on her face”). Therefore, Plaintiff Norma Ramirez has failed to create
a triable fact as to whether the officers used unconstitutional excessive force against her
by pointing loaded firearms at her, or by abruptly spinning her around and pushing her
against the wall.
The same analysis applies to Plaintiffs’ claim that the officers used excessive
force against Luis Ramirez. Although Luis was not the person officers sought to arrest,
he was known to the officers to be prone to violence and to have access to firearms in
the home. In the context of protective sweeps incident to a lawful arrest, the Supreme
Court has explained that “[t]he risk of danger in the context of an arrest in the home is
as great as, if not greater than, it is in an on‐the‐street or roadside investigatory
encounter.” Maryland v. Buie, 494 U.S. 325, 333 (1990). Therefore, officers executing an
arrest warrant in a suspect’s home have an interest “in taking steps to assure themselves
that the house in which a suspect is being, or has just been, arrested is not harboring
other persons who are dangerous and who could unexpectedly launch an attack.” Id.
This rule from Buie applies to protective detentions in addition to protective searches,
because “the ability to search for dangerous individuals provides little protection for
officers unless it is accompanied by the ability to temporarily seize any dangerous
individuals[.]” United States v. Maddox, 388 F.3d 1356, 1362 (10th Cir. 2004). Thus,
“detaining potentially dangerous persons for the duration of [an] arrest qualifies as a
reasonable step to ensure the officers’ safety.” Id. (internal citation omitted). See also
Armijo ex rel. Armijo Sanchez v. Peterson, 601 F.3d 1065, 1073 (10th Cir. 2010) (“[W]hen
officers lawfully arrest one occupant, officers may stop co‐occupants as part of a Buie
Arresting Plaintiff Norma Ramirez in her home put the officers “at the
disadvantage of being on his adversary’s ‘turf.’ An ambush in a confined setting of
unknown configuration is more to be feared than it is in open, more familiar
surroundings.” Buie, 494 U.S. at 333. Such reasonable fear of ambush was only
magnified in this case by the suspect’s apparent unwillingness to exit her home and
cooperate with the execution of the warrant for her arrest; as a result, the officers were
forced to enter “a confined setting of unknown configuration” in order to carry out the
arrest. Further adding to officer safety concerns was their knowledge that there were
firearms in the home, as already discussed. It was therefore reasonable in light of
officer safety concerns to hold Luis Ramirez at gunpoint until he was within the area of
the officers’ immediate control. Accordingly, there is no genuine issue of material fact
as to whether his constitutional rights were violated.
The officers did not use excessive force against Plaintiff Jackie Montijo.
Plaintiffs allege that at least two officers pointed loaded firearms at eleven‐year‐
old Jackie Montijo as she descended the stairs. Holding minor children at gunpoint for
a sustained period of time may constitute unlawful excessive force under the Fourth
Amendment. See Holland, 268 F.3d at 1192‐93 (10th Cir. 2001); Maresca v. Bernalillo Cty.,
804 F.3d 1301, 1314 (10th Cir. 2015). However, there is no allegation that any officer
held Plaintiff Jackie Montijo at gunpoint for a sustained period of time, that any
physical contact occurred between Montijo and any of the officers, or that the any
officer continued to hold Montijo at gunpoint after having gained complete control of
In Holland, SWAT team officers held three people, including an eight‐year‐old
boy, at gunpoint for ten to fifteen minutes while they were lying face‐down on the
ground, and trained a laser‐sighted weapon on the back of a fleeing four‐year‐old girl.
268 F.3d 1183‐84, 1192. In affirming the denial of summary judgment to the defendants,
the Holland court explained:
The display of weapons, and the pointing of firearms directly at persons
inescapably involves the immediate threat of deadly force. Such a show of
force should be predicated on at least a perceived risk of injury or danger
to the officers or others, based upon what the officers know at the
time . . . . Where a person has submitted to the officers’ show of force
without resistance, and where an officer has no reasonable cause to
believe that person poses a danger to the officer or to others, it may be
excessive and unreasonable to continue to aim a loaded firearm directly at
that person, in contrast to simply holding the weapon in a fashion ready
for immediate use. Pointing a firearm directly at a child calls for even
greater sensitivity to what may be justified or what may be excessive
under all the circumstances.
268 F.3d at 1192‐93. The court went on to acknowledge that “the SWAT Team’s initial
show of force may have been reasonable under the circumstances,” but explained that
“continuing to hold the children directly at gunpoint after the officers had gained
complete control of the situation . . . was not justified[.]” Id. at 1193.
In Maresca, police officers conducted a felony stop of a vehicle containing two
adults and their three minor children. 804 F.3d at 1304‐06. The plaintiffs alleged that
officers continued pointing their firearms directly at a minor child and the mother after
all plaintiffs were lying prone on the ground in accordance with the officers’
instructions. Id. at 1306. Relying on Holland, the Tenth Circuit found that the plaintiffs’
factual allegations could be “exactly” likened to the fact pattern in Holland where “the
officers continued to hold minors at gunpoint after they had been subdued,” creating
the requisite genuine dispute of material fact to justify reversal of summary judgment.
804 F.3d at 1314‐15.
Thus, the Tenth Circuit in both cases determined that summary judgment on the
basis of qualified immunity is not appropriate in an excessive force case where officers
continued holding minor children at gunpoint after the officers had already gained
control of the situation and had no reason to believe the children posed any danger.
Here, Plaintiffs do not allege that Jackie Montijo was held at gunpoint—or subject to
any other type of force—at any time after she descended the stairs and was within the
area of the officers’ immediate control.
Moreover, one of the key factors in assessing an excessive force claim is “whether
the officers had reason to fear for their safety or the safety of others.” See, e.g., Fisher v.
City of Las Cruces, 584 F.3d 888, 895 (10th Cir. 2009) (applying the Graham factors). At
the time Plaintiff Montijo was descending the stairs, the officers were aware that (1)
Plaintiff Luis Ramirez was still upstairs; (2) at least three firearms were present in the
home; and (3) Luis Ramirez could appear on the stairs at any time as Plaintiff Montijo
descended. The officers therefore had not yet gained control of the situation and were
rightfully concerned with officer safety. Even if it was unreasonable to believe that
Plaintiff Montijo alone posed a threat of danger, the officers had reason to believe that a
dangerous situation could arise on the stairwell at any moment given that Plaintiff Luis
Ramirez, whom they knew to have a history of violence and access to multiple firearms,
was upstairs and outside of their control. See Buie, 494 U.S. at 333 (discussing the risk of
unexpected ambush by non‐suspect occupants of a home). Their show of force was
therefore “predicated on at least a perceived risk of injury or danger to the officers or
others, based upon what the officers [knew] at that time.” Holland, 268 F.3d at 1192.
Therefore, Defendants have shown an absence of evidence to support Plaintiffs’
claim that a constitutional violation occurred. In response, Plaintiffs have failed to
designate specific facts showing any genuine issue of material fact regarding that claim.
Consequently, the municipal Defendant is entitled to summary judgment.5
As noted above, establishing municipal liability requires proof of both the violation and a policy/custom
which was the moving force behind the violation. See supra pp. 7‐8. The summary judgment record
contains no evidence of such a policy/custom. However, because Defendants did not make that
argument and, in the context of a non‐qualified immunity summary judgment motion, the burden is on
the municipal Defendant to demonstrate the absence of a material fact, the Court does not rely on this
3. The individual Defendants are entitled to summary judgment because no
constitutional violation has been established.
Given this conclusion, the Court will briefly return to the question of qualified
immunity for the individual Defendants. Above, the Court found that Plaintiffs failed
to carry their burden of demonstrating that the relevant law was clearly established.
With the Plaintiffs having failed to satisfy this prong of the qualified immunity
standard, the individual Defendants are entitled to qualified immunity. The Court has
now concluded, under the typical summary judgment standard where the burden is on
non‐movant, that no reasonable jury could find a constitutional violation by the officers
based on the summary judgment record. This conclusion dictates that Plaintiffs have
also failed to satisfy the remaining prong of the qualified immunity analysis. Therefore,
in the alternative, the Court finds that the individual Defendants are entitled to
qualified immunity based on Plaintiffs’ failure to demonstrate a constitutional violation.
Based on the foregoing, Defendants Prentice and Webb are entitled to qualified
immunity, and Defendant Board of County Commissioners of Santa Fe County is
entitled to summary judgment based on the absence of evidence in the record from
which a reasonable jury could conclude that Plaintiffs’ Fourth Amendment right against
unreasonable seizure was violated. Accordingly, Defendants’ Motion for Summary
Judgment (doc. 41) is GRANTED. As the Court has already dismissed Counts II, IV, and
the state law portion of Count I of the Amended Complaint as to all Defendants, and
Count V as to the municipal Defendant (doc. 34 at 9), the federal portion of Count I,
Count III, and Count V as to the individual Defendants are Plaintiffs’ only remaining
claims. Those remaining claims are hereby DISMISSED WITH PREJUDICE.
Additionally, Plaintiffs’ claims against putative Defendant Brian Nissen are
DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
GREGORY B. WORMUTH
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
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