Howard v. City of Albuquerque et al
Filing
133
MEMORANDUM OPINION AND ORDER granting 102 Opposed MOTION for Summary Judgment Defendants Daffron, Chafin, and Molina's Motion for Summary Judgment on the Basis of Qualified Immunity by District Judge James O. Browning. (vv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
TERICIA A. STEVENSON, as
Guardian ad Litem and Conservator
of MAJESTIC HOWARD, Individually,
and as Guardian of MAJESTIC HOWARD,
JR., and KARISMA STRONG,
Plaintiff,
vs.
No. CIV 17-855 JB\LF
CITY OF ALBUQUERQUE,
OFFICER JONATHAN FRANCO,
individually, OFFICER BEN DAFFRON,
individually, OFFICER JOSHUA CHAFIN,
individually, OFFICER SONNY MOLINA,
individually,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Defendants Daffron, Chafin, and Molina’s
Motion for Summary Judgment on the Basis of Qualified Immunity, filed October 4, 2019
(Doc. 102)(“MSJ”). The Court held a hearing on January 10, 2020. The primary issue is whether
Defendants Ben Daffron, Joshua Chafin, and Sonny Molina (“Movants”), police officers with the
Albuquerque Police Department (“APD”), are entitled to qualified immunity when they allegedly
kneed Majestic Howard in the torso, shoulder, and head while attempting to arrest him. More
specifically, the Court must determine: (i) whether Daffron violated Howard’s clearly established
rights under the Fourth Amendment to the Constitution of the United States of America by using
objectively unreasonable force in arresting Howard; (ii) whether Chafin and Molina violated
Howard’s clearly established constitutional rights when they did not intervene to prevent Daffron
from violating Howard’s constitutional rights; and (iii) whether Daffron, Chafin, and Molina
violated Howard’s clearly established constitutional rights when they did not prevent Franco’s use
of force against Howard. Additionally, the Plaintiffs request leave to take additional depositions
under rule 56(d) of the Federal Rules of Civil Procedure. The Court concludes that: (i) Daffron is
entitled to summary judgment on the Plaintiffs’ excessive force claim on Howard’s behalf, because
Daffron’s use of force was objectively reasonable; (ii) Chafin and Molina are entitled to qualified
immunity on the Plaintiffs’ failure-to-intervene claim on Howard’s behalf regarding Daffron’s use
of force, because the Plaintiffs cannot show that Daffron violated Howard’s constitutional rights,
and establishing a constitutional violation is a necessary predicate to any claim that an officer
failed to intervene; (iii) even if Daffron’s use of force violated Howard’s Fourth Amendment
rights, Chafin and Molina did not violate Howard’s clearly established Fourth Amendment rights
by failing to intervene, because they had no realistic opportunity to do so; and (iv) assuming Franco
used objectively unreasonable force, Daffron, Chafin, and Molina did not violate Howard’s clearly
established rights by failing to prevent Franco’s use of force, because they had no realistic
opportunity to do so. Finally, the Court concludes that the Plaintiffs are not entitled to additional
discovery under rule 56(d), because the Plaintiffs have not identified with specificity the facts that
additional discovery will yield, and because additional discovery is not necessary to defend against
the MSJ. Accordingly, the Court grants the MSJ.
FACTUAL BACKGROUND
The Court draws the factual background from the parties’ undisputed material facts in their
summary judgment motion papers for the MSJ. See MSJ ¶¶ 1-30, at 4-8; Plaintiffs’ Response in
Opposition to Daffron, Chafin, and Molina’s Motion for Summary Judgment on the Basis of
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Qualified Immunity ¶¶ 1-19, at 2-10, filed November 4, 2019 (Doc. 107)(“Response”), id. at ¶¶ AZ, at 22-34.1
On October 30, 2015, Howard entered a City-owned bait vehicle2 near Indian School
Boulevard and University Avenue, in Northeast Albuquerque, New Mexico. See MSJ ¶ 1, at 4
(asserting this fact)(citing Bait Car Video at 00:01-00:05, filed October 4, 2019 (Doc. 104-1));
Response ¶¶ 1, 3, at 2-3 (citing Computer Aided Dispatch Report at 1, filed October 4, 2019 (Doc.
102-1)(“CAD Report”)).3 Using a screwdriver, Howard started the bait vehicle and began driving
it. See MSJ ¶ 2, at 4 (asserting this fact)(citing Bait Car Video at 00:04-00:46.4 At 1:14 a.m.,
The local rules provide that 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).
1
“A bait car, also called a hot car, is a vehicle that law enforcement agencies to use capture
car thieves or thieves who steal items from cars.”
“Bait Car,” Wikipedia.org,
http://en.wikipedia.org/wiki/Bait—car (last visited January 22, 2020)(footnote omitted). “The
vehicles are modified with audio/video surveillance technology, and can be remotely monitored
and controlled. Those set up to catch car thieves may include GPS tracking. A ‘kill switch’ may
be installed in the vehicle allowing police to remotely disable the engine and lock all doors
remotely, preventing escape.” Bait Car. The Court offers this information solely as background
for the reader’s edification and does not present this information as the truth or as facts material to
the issues in this opinion.
2
The Plaintiffs admit that, on October 30, 2015, Howard entered a city-owned bait vehicle.
See Response ¶ 1, at 2 (stating that the Plaintiffs “admit ‘Undisputed Material Fact’ . . . No. 1.”
The Plaintiffs also assert, in the Response, that the Movants responded to a call “in the Indian
School and University Area.” Response ¶ 3, at 3. Although the Plaintiffs did not letter this fact
as D.N.M.LR-Civ. 56.1(b) requires, the Court, to be fair to the Plaintiffs, construes them as
additional material facts for the purposes of this motion. The Court finds support for this fact in
the record and the Movants do not controvert this fact. See D.N.M.LR-Civ. 56.1(b) (“All material
facts set forth in the Response will be deemed undisputed unless specifically controverted.”).
3
The Plaintiffs admit that “Mr. Howard started the BAIT vehicle,” but assert that “it is not
clear from the video evidence what was used or how he started it.” Response ¶ 2, at 2. The
Plaintiffs cite to the Deposition of Jonathan Franco at 42:19-25 (taken Sept. 12, 2019), filed
4
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Albuquerque Police Department (“APD”) dispatch noted the bait vehicle had been stolen, and
dispatched this information to Daffron and Franco. See MSJ ¶¶ 3-4, at 4.5 At 1:17 a.m., Molina
and Jones were dispatched to locate the stolen vehicle. See MSJ ¶ 5, at 4; Response ¶ 3, at 3.6 At
1:18 a.m., Chafin was dispatched to locate the stolen vehicle. See MSJ ¶ 4, at 4; Response ¶ 3, at
3 (noting that “Chafin responded to a priority 1 call for a BAIT vehicle theft”).
While pursuing the vehicle, APD dispatch tried at least once to disable the vehicle, but the
attempt was unsuccessful. See MSJ ¶ 8, at 5; Daffron Lapel Video at 00:56-01:03.7 Howard drove
October 4, 2019 (Doc. 102-2)(“Franco Depo.”), in which Franco states that he “had no clue” about
“what was going on inside the vehicle.” Response ¶ 2, at 2. The portion of the Franco Depo. to
which the Plaintiffs cite, however, does not controvert specifically whether Franco used a
screwdriver to start the bait vehicle, as Franco was discussing his knowledge as to whether Franco
was armed. See Franco Depo. at 42:8-25 (discussing whether Howard “was doing [anything] that
was physically threatening”). The Court concludes that Howard used a screwdriver to start the
vehicle, as the camera footage from inside the bait vehicle shows Howard holding a screwdriver
when he enters the vehicle, and then moving the screwdriver towards the vehicle’s ignition block.
See Bait Vehicle Recording at 00:04 (Ex. A to MSJ). Although the Plaintiffs purport to dispute
the text’s fact, they do not specifically controvert it. See D.N.M.LR-Civ 56.1(b) (“All material
facts set forth in the Memorandum will be deemed undisputed unless specifically controverted”).
Further, the video evidence shows clearly that Howard used a screwdriver to start the vehicle. See
Scott v. Harris, 550 U.S. 372, 378-81 (2007)(noting that courts may making factual findings
against the parties’ asserted disputes if video evidence establishes a fact clearly).
The Plaintiffs state: “Plaintiffs dispute UMF Nos. 3 through 7 because they are incomplete
and inaccurate with respect to the information that Defendants had before pursuing Mr. Howard.”
Response ¶ 3, at 2-3. The Plaintiffs’ argument does not specifically controvert the proffered fact,
so the Court deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b).
5
In the MSJ, the Movants assert that, “[a]t 1:17 a.m., Officer Molina was dispatched to the
Call along with Officer Michael Jones.” Response ¶ 5, at 4 (citing CAD Report at 2).
6
The Plaintiffs purport to dispute the text’s fact, and argue that Franco “was not sure
whether Mr. Howard’s vehicle was disabled.” Response ¶ 4, at 3 (citing Deposition of Jonathan
Franco at 11:2-18 (taken Sept. 12, 2019), filed October 4, 2019 (Doc. 102-2)(“Franco Depo.”).
The Plaintiffs cites to a portion of a deposition that the parties did not submit, and none of the
parties submitted the Franco Depo.’s page 11. The Court, accordingly, does not adopt as fact the
Plaintiffs’ additional assertions.
7
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the vehicle from University Avenue and Indian School Boulevard in Northeast Albuquerque to
Hazeldine Avenue and Broadway Boulevard, in Southwest Albuquerque. See MSJ ¶ 7, at 5
(stating that the bait vehicle “stopped near Hazeldine”)(citing CAD Report at 2).8 Howard drove
within posted speed limits. See Response ¶ 3, at 3 (stating this fact)(citing CAD Report at 1-2).9
The vehicle stopped near Hazeldine Avenue in Southwest Albuquerque. See MSJ ¶ 7, at 5 (stating
this fact)(citing CAD at 2).10 Franco viewed the stop as high-risk. See MSJ ¶ 9, at 5 (stating this
The Plaintiffs purport to dispute the text’s fact, but do not controvert specifically that the
bait vehicle stopped near Hazeldine. As the Court finds support for the text’s fact in the record,
the Court deems this fact undisputed. See D.N.M.LR-Civ 56.1(b).
8
9
The Plaintiffs assert the text’s fact not as an additional material fact, but in response to the
MSJ’s proposed fact 7, arguing that, “[n]eedless to stay [sic], there was not a high-speed pursuit.”
Response ¶ 3, at 3.. In responding, the Plaintiffs list several additional facts, of which this is one.
Although the Plaintiffs did not letter these facts as D.N.M.LR-Civ. 56.1(b) requires, the Court, to
be fair to the Plaintiffs, construes them as additional material facts for the purposes of this motion.
The Court finds support for this fact in the record, see CAD Report at 1-2, and the Movants do not
controvert this fact. See Defendants Daffron, Chafin, and Molina’s Reply in Support of Motion
for Summary Judgment on the Basis of Qualified Immunity ¶ 7, at 1-2, filed November 25, 2019
(Doc. 115)(“Reply”). The Court accordingly adopts as undisputed the text’s fact. See D.N.M.LRCiv. 56.1(b).
The Movants assert that the “bait vehicle stopped at 1:23 a.m. near Hazeldine.” MSJ ¶ 7,
at 5 (citing CAD Report at 2). The Plaintiffs purport to dispute the text’s fact, but do not address
where the vehicle stopped. The CAD Report states that the bait vehicle stopped at Hazeldine. See
CAD Report at 2. The Court has no independent reason to doubt the CAD Report’s accuracy, and
the Plaintiffs to not controvert the text’s fact, so the Court adopts it as undisputed. See D.N.M.LRCiv. 56.1(b).
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fact)(citing Franco Depo. at 28:9-18).11 When the bait car that Howard was driving stopped,12
officers immediately exited their service vehicles, drew their service weapons, and ordered
Howard to exit the bait vehicle with his hands in the air. See MSJ ¶ 9, at 5 (stating this fact)(citing
Daffron Lapel Video at 2:20-25 (dated October 30, 2015), filed October 4, 2019 (Doc. 104-4);
The Plaintiffs purport to dispute this fact and argues that the portion of the record to which
the Movants cite does not support this fact. See Response ¶ 5, at 3 (arguing that, in the portion of
the Franco Depo. to which the Movants cite, Franco discusses only the command structure for
high-risk stops). The record supports the text’s fact, however:
11
Q.
And what made this a high-risk stop?
A.
It was somebody in possession of a stolen vehicle.
...
Q. That made it a high-risk stop for you?
A.
No, just knowing that it’s a stolen vehicle.
Franco Depo. at 26:16-23 (Oliveros, Franco). Because the Plaintiffs do not cite to the record in
support of their purported dispute of the text’s fact, and because the Franco Depo. supports the
APD Defendant’s proposed fact, the Court concludes that there is no genuine dispute in the record
and adopts the text’s fact as undisputed. See D.N.M.LR-Civ. 56.1(b).
Although the Movants assert that “the vehicle stopped because it was disabled,” the
portion of the record to which the Movants cite does not support this assertion. See MSJ ¶ 8, at 5
(citing Franco Depo. at 11:15-18). Although APD had been attempting to disable the vehicle, it
had been unsuccessful in doing so, see Daffron Lapel Video at 1:55-2:18, filed October 4, 2019
(Doc. 104-2), and the Plaintiffs note that Franco, in the Franco Depo., states that he believes the
vehicle stopped because APD disabled it, see Franco Depo. at 11:2-18. The Court, therefore,
concludes that the record supports not that APD disabled the vehicle, but rather only that the
vehicle stopped. Finally, in the Reply, the Movants concede that “Plaintiffs have created a dispute
as to DMF No. 8, however, this fact merely set context for the encounter and is not crucial to an
award of qualified immunity.” See Reply ¶ 8, at 2. The Court concludes there is a genuine dispute,
so the Court does not adopt the Movants’ proposed fact that the vehicle stopped because APD
disabled it.
12
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Jones Lapel Video at 1:18-59 (dated October 30, 2015), filed October 4, 2019 (Doc. 104-5)).13
Howard remained in the vehicle for two minutes and four seconds while officers shouted for him
to exit the vehicle. See MSJ ¶ 11, at 5 (stating this fact)(citing Daffron Lapel Video at 2:16-4:20;
Jones Lapel Video at 1:18-159).14 While in the vehicle, Howard did not communicate with or
threaten the officers. See Response ¶ 7, at 4. (stating this fact)(citing Franco Depo. at 43:2444:9).15
The Plaintiffs purport to dispute the text’s fact, but concede that “officers gave Mr.
Howard three commands to exit the vehicle with his hands in the air.” Response ¶ 6, at 3-4 (citing
Jones Lapel Video at 3:38-4:19). Because the Plaintiffs do not controvert this fact and the portion
of the record to which the Movants cite supports the text’s fact, the Court deems this fact
undisputed. See D.N.M.LR-Civ. 56.1(b) (“All material facts set forth in the Memorandum will be
deemed undisputed unless specifically controverted.”).
13
The Plaintiffs purport to dispute the text’s fact, but concedes that, “according to the video
evidence, Mr. Howard remained in the vehicle for approximately two minutes.” Response ¶ 7, at
4. Because the Plaintiffs do not controvert this fact, the Court deems this fact undisputed. See
D.N.M.LR-Civ. 56.1(b) (“All material facts set forth in the Memorandum will be deemed
undisputed unless specifically controverted.”).
14
Although the Plaintiffs did not letter these facts as D.N.M.LR-Civ. 56.1(b) requires, the
Court, to be fair to the Plaintiffs, construes them as additional material facts for the purposes of
this motion. In disputing the APD’s proposed fact that Howard remained in the vehicle for two
minutes while officers commanded him to exit, the Plaintiffs list several additional facts.
Specifically, the Plaintiffs assert that:
15
it is material that during this time, Mr. Howard did not verbally threaten the
Defendants in anyway. See Doc. 104, [Daffron Lapel Video, Jones Lapel Video,
Franco Lapel Video, Chafin Lapel Video], Franco Depo., 43:24-44:9. It is
undisputed that Mr. Howard never hit or kicked the Defendants in any way at any
time. [Franco Depo. at] 43:8-14. Mr. Howard did not physically threaten the
Defendants at any time or make hostile motions. [Franco Depo. at] 43:24-44:2.
Response ¶ 7, at 4. The Court will address materiality in this Memorandum Opinion and Order’s
(“MOO”) Analysis section. In the Reply, the Movants do not specifically controvert the Plaintiffs’
assertion that Howard did not threaten or strike the officers. See Reply ¶¶ 10-11, at 2. The portion
of the record to which the Plaintiffs cite supports their assertion that Howard never verbally or
physically threatened the officers, see Franco Depo. at 44:3-6 (noting that Howard “never said
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Howard exited the vehicle and fled on foot. See MSJ ¶ 12, at 5 (stating this fact)(citing
Franco Depo. at 33:13-22 (Oliveros, Franco); Daffron Lapel Video at 4:30-4:40; Jones Lapel
Video at 1:59-2:02).16 Officers pursued Howard on foot. See MSJ ¶ 13, at 5 (citing Franco Depo.
at 34:18-35:10 (Oliveros, Franco)).17 Franco, Molina, Daffron, and Chafin pursued Howard, with
Jones and Floyd following a short distance behind the others. See MSJ ¶ 14, at 5 (stating this
fact)(citing Franco Depo. at 34:18-35:10 (Oliveros, Franco); Franco Lapel Video at 6:55-7:03,
filed October 4, 2019 (Doc. 104-7); Response ¶ 8, at 4 (stating this fact)(citing Chafin Lapel Video
at 2:40-50).18 Franco was closest behind Howard in the foot pursuit. See MSJ ¶ 14, at 5 (stating
this fact)(citing Franco Lapel Video at 6:55-7:03); Response ¶ 9, at 4 (admitting this fact). Howard
anything that was threatening”), so the Court adopts as undisputed that Howard did not verbally
or physically threaten the officers. See D.N.M.LR-Civ. 56.1(b).
Although the Plaintiffs purport to controvert the text’s fact, the Plaintiffs assert that,
“[i]mmediately after exiting in a non-threatening manner, Mr. Howard ran in a direction away
from the officers.” Response ¶ 7, at 4 (citing Chafin Lapel Video at 2:28-30, filed October 4, 2019
(Ex. F to MSJ)). The Court does not adopt this as undisputed fact, because the Court has already
adopted as fact that Howard did not verbally threaten the officers, and that Howard fled upon
exiting the vehicle, and because “in a non-threatening manner” is a characterization and not a fact.
16
The Plaintiffs do not controvert, or purport to controvert, the text’s fact. See Response at
4 (not addressing or mentioning the MSJ’s asserted fact. The Court concludes that, pursuant to
rule 56(c), the Plaintiffs have not asserted a genuine dispute to the text’s fact, so the Court adopts
it as undisputed. See Fed. R. Civ. P. 56(c).
17
The Movants assert that “Officers pursued Howard westbound.” MSJ ¶ 13, at 5. The
Plaintiffs purport to dispute this assertion, and argue that is it “incomplete and, therefore,
misleading and inaccurate.” Response ¶ 8, at 4. The Plaintiffs then assert, however, that Franco,
Molina, Daffron, and Chafin “all pursued Howard at a close distance.” Reponse ¶ 9, at 4 (citing
Chafin Lapel Video at 2:40). The Movants do not controvert specifically the Plaintiffs’ assertions
as to who pursued Howard. See Reply ¶ 13, at 3. The Court finds support for the text’s fact in the
record, see Chafin Lapel Video at 2:36-43, and the Movants do not rebut the text’s fact with
citations to the record, so the Court adopts the text’s fact as undisputed. See D.N.M.LR-Civ.
56.1(b).
18
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ran toward a mattress leaning against a chain-link fence. See MSJ ¶ 15, at 6 (stating this fact)(citing
Franco Depo. at 34:18-35-10 (Oliveros, Franco); Franco Lapel Video at 7:03-7:05).19
As Franco was closing, Howard stopped in front of the mattress and sat down. See
Response ¶ 10, at 5 (stating this fact)(citing generally Affidavit of Majestic Howard (taken Nov.
4, 2019), filed November 4, 2019 (Doc. 107-28)(“Howard Aff.”); Franco Lapel Video at 7:02).20
The Plaintiffs purport to dispute the text’s fact, but do not directly controvert the Movants’
assertion that Howard ran toward a mattress leaning against a fence. See Response ¶ 10, at 5. The
Court finds support for the text’s fact in the portions of the record to which the Movants cite.
Accordingly, the Court deems this fact undisputed. See D.N.M.LR-Civ 56.1(b).
19
In the MSJ, the Movants asserts that “Howard ran directly into the mattress.” MSJ ¶ 16,
at 6 (citing Franco Depo. at 36:17-21 (Franco); Franco Lapel Video at 7:04-7:06). The Plaintiffs
purport to dispute this assertion and assert additional facts: “Mr. Howard did not hit the mattress.
Mr. Howard stops and submits to arrest by kneeling down in front of Officer Franco.” Response
¶ 10, at 5 (citing Howard Aff. ¶ 6, at 1 (“I decided to stop and got on my knees. I never resisted
arrest.”)). Although the Plaintiffs did not letter these facts as D.N.M.LR-Civ. 56.1(b) requires, the
Court, to be fair to the Plaintiffs, construes them as additional material facts for the purposes of
the MSJ. In the Reply, the Movants assert that the “Plaintiffs purport to dispute DMF Nos. 15-18
because they are incomplete,” and the Movants argue that the Plaintiffs’ purported dispute “fails
to specifically controvert these facts.” Reply ¶¶ 15-18, at 3. The Plaintiffs point, however, to
evidence to controvert the Movants’ assertion that Howard ran into the mattress and did not sit
down voluntarily. See Response ¶ 10, at 5. In Kephart v. Data Systems International, Inc., 243
F. Supp. 2d 1205 (D. Kan. 2003)(Vratil, J.)(“Kephart”), the Honorable Kathryn H. Vratil, United
States District Judge for the United States District Court for the District of Kansas, concluded that,
to survive summary judgment, the non-movant’s affidavits must be based on personal knowledge
and set forth facts that would be admissible in evidence. See 243 F. Supp. 2d at 1209. Howard’s
declaration is based on his personal knowledge as to how he came to be on the ground in front of
the mattress. The Plaintiffs also cite the Franco Lapel Video in support of the text’s fact, and the
Court, in reviewing the Franco Lapel Video, concludes that the Franco Lapel Video corroborates
Howard’s declaration. See Franco Lapel Video at 7:02-7:06. Franco asserts in the Franco Depo.
that Howard “ran directly into that mattress” and that Franco “believed he was going to use it to
climb over a gate that it was leaning against.” Franco Depo. at 36:13-16 (Franco).
At the summary judgment stage, the Court cannot decide any issues of credibility. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). There are, however, limited
circumstances in which the Court may disregard a party’s version of the facts. This doctrine
developed most robustly in the qualified immunity arena. See Scott v. Harris, 550 U.S. at 380-81.
The United States Court of Appeals for the Tenth Circuit has explained: “As with any motion for
summary judgment, ‘[w]hen opposing parties tell two different stories, one of which is blatantly
20
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Franco’s momentum carried him past Howard, but Franco quickly rounded and reached Howard.
See MSJ ¶¶ 17-18 (stating that Franco ran past Howard)(citing Franco Depo. at 37:7-22 (Franco);
Franco Lapel Video at 7:04-7:06).21 Franco had a “clear visual” on Howard and did not see any
weapons before he made contact with Howard. Response ¶ 11, at 5 (stating this fact)(citing Franco
Depo. at 40:18-41:16).22 Franco made physical contact with Howard, and as Franco reached
Howard, Howard went from a sitting position to a lying position. See MSJ ¶ 17, at 6 (stating that
contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that
version of the facts[.]’” York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008)(quoting
Scott v. Harris, 550 U.S. at 380).
After reviewing carefully the Franco Lapel Video, and drawing all reasonable inferences
in the Plaintiffs’ favor, the Court concludes that the Franco Lapel Video shows clearly that Howard
did not run into the mattress, but rather sat down in front of the mattress as Franco was closing in
behind him. See Lymon v. Aramark Corp., 728 F. Supp. 2d 1222, 1249 (D.N.M.
2010)(Browning, J.), aff’d, 499 F. App’x 771 (10th Cir. 2012)(citing Rhoads v. Miller, 352 F.
App’x 289 (10th Cir. 2009)(Tymkovich, J.)(unpublished)(noting that, when a court resolves a
blatant contradiction in the record, the court’s resolution must rely on more than other witnesses’
testimony).
The Plaintiffs purport to dispute the Movants’ assertion, but the Plaintiffs’ factual
contentions do not pertain to whether Franco’s momentum carried him past Howard, and that
Franco then rounded and closed in on Howard. See Response ¶ 10, at 5. The Court concludes that
the Plaintiffs have not asserted a genuine dispute to the text’s fact, because the Plaintiffs have not
cited to particular materials in the record establishing the presence of a genuine dispute. See Fed.
R. Civ. P. 56(c)(1)(A). The Court adopts the text’s fact as undisputed, having no independent
reason to doubt its accuracy. See Franco Depo. at 37:11-12 (stating that Franco “ran a little bit
passed him while trying to grab him at the same time”).
21
In the Response, the Plaintiffs also assert that Franco “had a clear visual and he did not
see any weapons on Mr. Howard.” Response ¶ 11, at 5 (citing Franco Depo. at 40:18-41:16).
Although the Plaintiffs do not letter this proffered fact as D.N.M.LR-Civ. 56.1(b) requires, the
Court, to be fair to the Plaintiffs, construes it as a proposed material fact for the purposes of this
motion. In the Reply, the Movants do not respond to the proffered fact. See Reply ¶ 19, at 3-4.
The record which the Plaintiffs cite supports the Plaintiffs’ assertion, and so the Court adopts as
undisputed the fact that Franco had a clear visual on Howard and did not see any weapons. See
D.N.M.LR-Civ. 56.1(b) (“All material facts set forth in the Response will be deemed undisputed
unless specifically controverted.”).
22
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Franco “grabbed Howard’s arm”)(citing Franco Depo. at 37:7-22; Franco Lapel Video at 7:05).23
Daffron, Chafin, and Molina arrived shortly after Franco brought Howard to a lying position. See
The Movants assert that, “[a]s Officer Franco ran past Howard, Officer Franco grabbed
Howard’s arm” and that “Howard then lay on [the] ground, resting on his stomach.” MSJ ¶¶ 1718, at 6. The Plaintiffs purport to dispute the Movants’ assertion in a paragraph disputing four of
the Movants’ factual assertions. See Response ¶ 10, at 5 (“With respect to UMFs Nos. 15-18,
Plaintiffs dispute the allegations”). The Plaintiffs do not, however, specifically mention or refer
to whether Franco grabbed Howard’s arm or whether Howard lay on the ground on his stomach.
The Plaintiffs instead state that “Mr. Howard stops and turns around with his hands open . . . . Mr.
Howard is down on the ground with his hands covering his face.” MSJ ¶ 10, at 5 (citing Franco
Lapel Video at 7:02, 7:04-7:06). The Plaintiffs assert the text’s fact not as an additional material
fact, but in response to the MSJ’s proposed facts 15-18. In purporting to dispute those proposed
facts, the Plaintiffs list several additional facts, of which this is one. Although the Plaintiffs did
not letter these facts as D.N.M.LR-Civ. 56.1(b) requires, the Court, to be fair to the Plaintiffs,
construes them as additional material facts for the purposes of this motion.
Although the Plaintiffs do not controvert directly the Movants’ assertion, the Court, for
precision’s sake, modifies the text’s fact to better reflect what the record can support -- that Franco
made physical contact with Howard, and brought Howard from a sitting position to a lying
position. See Franco Lapel Video at 7:02-7:06. The portion of the record to which the Movants
cite does not support the Movants’ factual assertion that Franco grabbed Howard’s arm. See
Franco Depo. at 38:1-5 (stating “I don’t know what part of his body I grabbed. It was the side or
his back from what I recall”). Having reviewed carefully the Franco Lapel Video, the record gives
the Court reasons to doubt the Movants’ assertion that Franco grabbed Howard’s arm. See Franco
Lapel Video at 7:04-7:07. Nonetheless, it is clear that Franco made contact with Howard. See
Franco Depo. at 37:14 (stating “I did make contact with Mr. Howard”); Franco Lapel Video at
7:04-7:07.
As to the parties’ assertions regarding whether Franco grabbed Howard’s arm and how
Howard came to be lying down, the Court is presented with contradictory testimony. Compare
Franco Depo. at 40:24-41:3 (stating that, when Franco grabbed Howard, “he was standing on his
two feet” and that When Franco “got a clear visual” on Howard, “he was on his stomach”) with
Howard Aff. ¶¶ 6-7, at 1 (stating “I decided to stop and got on my knees. I never resisted arrest
. . . . The police started beating me. I was hit on my face, head, body, and back. I was hit all over.
I was hit on my head a lot of times”). At the summary judgment stage, the Court cannot decide
issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255. Further, the Franco
Lapel Video shows that Franco punched Howard in the face, which brought Howard to the ground.
Although the video appears to show this, the Plaintiffs do not propose as a material fact that Franco
struck Howard’s face upon reaching Howard. The Court presumes, then, that no parties view this
fact as material to the MSJ. As to the parties’ proposed facts on this point, the video evidence does
not “blatantly contradict[]” any party’s assertion such that “no reasonable jury could believe” one
party’s version. Scott v. Harris, 550 U.S. at 380. The Court, having reviewed the record, concludes
23
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MSJ ¶ 19 (referring to “officers”)(citing Franco Depo. at 42:12-18).24 When Howard was prone,
one of Howard’s hands was underneath his body, and the officers could not see his hand. See MSJ
¶ 19, at 6 (stating this fact)(citing Franco Depo. at 41:22-23; id. at 42:12-18).25 Officers “gave
that there is a genuine dispute as to what kind of force Franco exerted that brought Howard to a
lying position. The Court will address the dispute’s materiality in this MOO’s Analysis section.
The Movants imply the text’s fact rather than assert it, but the text’s fact forms the basis
of several of the Movants’ and the Plaintiffs’ proposed facts. Beginning with the MSJ’s paragraph
19, and continuing through the rest of the Movant’s proposed facts, the Movants refer to
“Officers,” and refer to Daffron, Chafin, and Molina as present. MSJ ¶¶ 19, 20, 22, at 6-7. See
id. ¶¶ 23-29, at 7. The Plaintiffs similarly base their proposed facts on each of the other individual
Defendants’ presence. See, e.g., Response ¶ 14, at 6 (asserting that “Howard is thrown down by
the Defendants with his head in the street.”). Although the parties do not assert specifically as
proposed fact that Daffron, Chafin, and Molina arrived to help Franco apprehend Howard, the
Court, to be generous to the parties, concludes that they arrived, because the parties’ proposed
facts imply that they arrived and the record supports that they arrived. See Franco Depo. at 46:24; Daffron Lapel Video at 4:53-5:34; Jones Lapel Video at 2:19-2:24; Franco Lapel Video at 7:077:55.
24
The Plaintiffs purport to dispute the Movants’ proffered fact and assert that “Howard’s
hands were visible during different points of the encounter.” Response ¶ 11, at 5 (citing generally
Daffron Lapel Video, Jones Lapel Video, Chafin Lapel Video, Franco Lapel Video, and Molina
Lapel Video). The Movants reply that they “do not allege they never saw Mr. Howard’s hands,
but rather during the critical period, they could not see Mr. Howard’s hand that was underneath
his body.” Reply ¶ 19, at 2-3. The Movants also note that the “Plaintiffs cite to five . . . lapel
videos . . . [that] are a total of forty . . . minutes of footage.” Reply ¶ 19, at 4. The Movants argue
that the “Court should decline Plaintiffs’ invitation to sort through this footage to find evidence
that supports Plaintiffs’ allegations.” Reply ¶ 19, at 4 (citing Hauff v. Petterson, 755 F. Supp. 2d
1138, 1150 (D.N.M. 2010)(Kelly, J.)).
The Movants assert that “Howard’s hands were not visible to the officers, because they
were tucked under his body.” MSJ ¶ 19, at 6. In the portion of the record which the Movants cite,
however, Franco says “I could not” see Howard’s hands. The Plaintiffs assert that “Franco can
only testify about his own knowledge” and not that of the other Defendants. Response ¶ 11, at 5
(citing Fed. R. Evid. 602). At the summary judgment stage, the Court may not rely on statements
that are not based on personal knowledge. See Murray v. City of Sapulpa, 45 F.3d 1417, 1422
(10th Cir. 1995); Kephart, 243 F. Supp. 2d at 1209. The portion of the Franco Depo. the Movants
cite in support of the text’s fact is based on Franco’s personal knowledge -- he states that he could
not see Howard’s hands. The Movants, however, also cite to lapel videos which show, from the
Defendants’ perspective, that Howard’s hand was beneath his body and not visible to the other
officers. See Reply ¶ 19, at 3 (citing Daffron Lapel Video at 7:06-7:10; Jones Lapel Video at 2:1025
- 12 -
Howard multiple commands to show them his hands.” MSJ ¶ 20, at 6 (citing Franco Depo. at
45:3-11; Daffron Lapel Video at 4:45-4:51; Jones Lapel Video at 2:10-2:35). See Response ¶ 12,
at 5 (stating that the “Plaintiffs admit UMF No. 20”). Despite the officers’ commands, the officers
were not immediately able to secure both of Howard’s hands, and Franco believed that Howard
was resisting the officers’ commands. See MSJ ¶ 21, at 6 (stating this fact)(citing Franco Depo.
at 45:3-11).26 Officers were able to secure Howard’s left hand, but his right hand remained under
his body. See MSJ ¶ 22, at 6 (stating this fact)(citing Molina Lapel Video at 2:52-2:55).27 Using
2:35; Chafin Lapel Video at 2:52-2:55). In the lapel videos which the Movants cite, Howard’s
hand is not visible beneath his body. The Plaintiffs do not, therefore, specifically controvert the
proffered fact, and the record supports the proffered fact so the Court deems this fact undisputed.
See D.N.M.LR-Civ. 56.1(b).
The Court modifies slightly the Movants’ proposed fact to better reflect what the record
can support. The Movants assert that “Howard did not comply with their commands.” MSJ ¶ 21,
at 6. To support this assertion, the Movants cite to the Franco Depo., in which Franco states:
26
I see officers trying to grab his arms which are still tucked under his body.
I hear other officers giving commands to give his arms and those commands are
going -- there’s numerous times they’re giving these commands, which implies to
me that Mr. Howard is not listening and is continuing to hide his hands under his
body.
Franco Depo. at 45:5-11. The portion of the record to which the Movants cite does not support
the Movant’s proposed fact that Howard resisted, but rather that Franco believed Howard was
resisting the officers’ commands. In the Response, the Plaintiffs purport to dispute the Movants’
proposed fact, and argue that “the video footage” generally does not show “that Mr. Howard
resisted either verbally or physically after he was on the ground.” Response ¶ 13, at 6. The
Plaintiffs do not dispute, however, that Franco believed that Howard resisted the officers’
commands.
The Plaintiffs purport to dispute the text’s fact, but do not refer specifically to the text’s
fact. See Response ¶ 14, at 6. Instead, Plaintiffs provide over three pages of argument and
additional facts that do not correspond with the Movant’s proffered fact. See Response ¶ 14, at
6-9. As the Plaintiffs do not controvert specifically the proffered fact, and because the record
supports the proffered fact, the Court deems that fact undisputed. See D.N.M.LR-Civ. 56.1(b)
27
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his knee, Daffron struck Howard’s shoulder three times. See MSJ ¶ 23, at 7 (stating this fact)(citing
Franco Depo. at 46:22-77:9; Daffron Lapel Video at 4:40-4:50; Jones Lapel Video at 2:22-2:26).28
(“All material facts set forth in the Memorandum will be deemed undisputed unless specifically
controverted.”).
The Plaintiffs’ purported dispute pertains more to Movants’ later proffered facts regarding
the Defendants’ use of force. See Response ¶ 14, at 6-9 (asserting that “Mr. Howard was then held
down by four Defendants while being struck multiple times and kneed in the head,” noting which
of the lapel videos documents the Defendants’ use of force, comparing the Defendants’ various
reports on the use of force, arguing that “APD Officers, including Officer Franco, know that using
hand or knee strikes on the head can constitute deadly force,” contending that, “[s]hockingly, the
Defendants refused to take Mr. Howard to the hospital to be evaluated even though APD and the
officers knew that Mr. Howard needed medical attention,” and arguing that the lapel videos show
that “Mr. Howard was not resisting”). The Movants argue that D.N.M.LR-Civ. 56.1(b) “is more
than a ‘simple labeling requirement’; it is ‘an important tool to identify and address the facts at
issue on summary judgment[. A] district court should not have to guess which of the movant’s
material facts are actually disputed by the non-movant’ and which statements are additional facts.”
Reply ¶ 19, at 5 (quoting Nahno-Lopez v. Houser, 625 F.3d 1279, 1284 (10th Cir. 2010)).
“Assuming the Court does consider these improperly submitted facts,” the Defendants contend,
“these additional facts do not directly rebut DMF No. 22 which does not discuss any force used,
but rather simply [asserts] that Howard did show officers his other hand when ordered to do so.”
As discussed, the Court is being fair to the Plaintiffs by construing their unlabeled facts as
additional material facts despite the Plaintiffs’ lack of compliance with D.N.M.LR-Civ. 56.1(b).
Although the Court must resolve all reasonable inferences in favor of the Plaintiffs, as nonmovants, see Hunt v. Cromartie, 526 U.S. 541, 550-55 (1999), the Court may not allow the
Plaintiffs’ lack of compliance to prejudice the Movants, see Nahno-Lopez v. Houser, 625 F.3d at
1284 (affirming a district court’s granting of summary judgment, because the non-movants did not
label additional material facts as the local rule requires). The Plaintiffs’ three-page narrative makes
it difficult for the Movants to respond to the Plaintiffs’ additional proposed facts as rule 56 of the
Federal Rules of Civil Procedure and D.N.M.LR-Civ 56.1(b) require. With this in mind, the Court
examines carefully the Plaintiffs’ three-page narrative and, as the MOO shows, incorporates as
fact that which the Plaintiffs’ assert and support.
The Plaintiffs purport to dispute the text’s fact. In the Response, the Plaintiffs assert that
the “video evidence does not show Officer Daffron’s use of force against Mr. Howard or the exact
times that force was applied.” Response ¶ 15, at 9. The Plaintiffs also direct the Court to their
response to the Movants’ ¶ 22. See Response ¶ 15, at 9. In that portion of the Response, however,
the Plaintiffs assert that “Officer Daffron struck Mr. Howard three times with his knee,” and notes
that Franco “observed that Officer Daffron’s strikes were made to Mr. Howard’s shoulder, not his
torso.” Response ¶ 14, at 6 (citing Franco Depo. at 46:22-47:24). The Plaintiffs, accordingly,
assert the same fact that the Movants assert: that Daffron struck Howard’s shoulder three times
with his knee.
28
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Daffron delivered his strikes over a four-second period. See MSJ ¶ 24, at 7 (stating this fact)(citing
Jones Lapel Video at 2:22-2:26).29 Daffron did not use any force against Howard after officers
had secured both of his arms. See MSJ ¶ 25, at 7 (stating this fact)(citing Daffron Lapel Video at
4:45-4:53; Jones Lapel Video at 2:22-3:08; Franco Lapel Video at 7:02-7:34).30 As officers sought
to secure Howard’s right hand, Franco, using his knee, struck Howard once in his head. See MSJ
The Plaintiffs also argue, however, that “Daffron’s contention that he delivered three
strikes to Howard’s shoulder is inconsistent with his statements in his Supplemental Report.”
Response ¶ 15, at 9 (citing Daffron Supplemental Report, filed November 4, 2019 (Doc. 107-18);
Daffron Use of Force Report at 3, filed November 4, 2019 (Doc. 107-19)). In the Supplemental
Report, Daffron states that he “delivered three knee strikes to the right side of [Howard’s] torso.”
Daffron Supplemental Report at 44. In the Daffron Use of Force Report, Daffron indicated that
he struck Howard near his rib cage. See Daffron Use of Force Report at 3. The Use of Force
Report does not call for a narrative response, but rather directs the officer completing the report to
highlight one of thirteen numbered regions of a figure of a body to indicate the region to which the
officer applied force. See Daffron Use of Force Report at 3. Although Daffron does not indicate,
on the Daffron Use of Force Report, that he struck Howard’s shoulder, the inconsistency is minor,
and the Court deems the fact undisputed for two reasons. First, the Court may not decide any
issues of credibility at the summary judgment stage. See Anderson v. Liberty Lobby, Inc., 477
U.S. at 255. Second, the Plaintiffs assert in the Response that Daffron struck Howard’s shoulder
three times. See Response ¶ 14, at 6. The Court, accordingly, deems this fact undisputed. See
D.N.M.LR-Civ. 56.1(b) (“All material facts set forth in the Memorandum will be deemed
undisputed unless specifically controverted.”).
The Plaintiffs purport to dispute the text’s fact. See Response ¶ 15, at 9 (asserting that
“Plaintiffs dispute UMB No. 23, 24 and 25”). Nowhere in the Response, however, do the Plaintiffs
indicate or refer to the length of time that elapsed between Daffron’s strikes. The Court,
accordingly, deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b) (“All material facts set forth
in the Memorandum will be deemed undisputed unless specifically controverted.”).
29
The Plaintiffs purport to dispute the text’s fact. See Response ¶ 15, at 9 (asserting that
“Plaintiffs dispute UMB No. 23, 24 and 25”). The Plaintiffs do not cite to the record to support
this purported dispute, however, and nowhere in the Response do the Plaintiffs indicate or refer to
whether Daffron continued striking Howard after the officers secured both of Howard’s hands. As
the Court sees no reason to doubt the Movants’ proffered fact, the Court deems this fact undisputed.
See D.N.M.LR-Civ. 56.1(b) (“All material facts set forth in the Memorandum will be deemed
undisputed unless specifically controverted.”).
30
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¶ 26, at 7 (asserting that Franco “delivered a single knee strike to Howard while officers ordered
Howard to give them his hands”)(citing Franco Depo. at 47:28-48:9).31 Franco did not deliver any
Although the Plaintiffs do not proffer any additional facts, they do question Franco’s
credibility by noting discrepancies in his reports. See Response ¶ 14, at 7-8. The Plaintiffs note
that, in his Supplemental Report, Franco states “that he applied ‘three knee strikes to the left side
of the males [sic] torso and left shoulder.’” Response ¶ 14, at 7 (citing Franco Supplemental Report
at 1, filed Nov. 4, 2019 (Doc. 107-7)). Plaintiffs argue that the Court should be skeptical of
Franco’s reports, however, because he “reported only torso strikes to his supervisor” in his Use of
Force Report. Response ¶ 14, at 7 (citing Franco Use of Force Report at 3, filed Nov. 4, 2019
(Doc. 107-19)). The Court construes the Plaintiffs’ purported dispute as not with the number of
strikes Franco delivered, but rather where on Howard’s body those strikes landed. The Court also
construes the Plaintiffs’ argument as impeaching Franco’s credibility. At the summary judgment
stage, however, the Court may not decide issues of credibility. See Anderson v. Liberty Lobby,
Inc., 477 U.S. at 255. The Court also observes that the report for the use of force which the
Plaintiffs cite is a form report that does not call for narrative responses. See Franco Use of Force
Report at 1-3.
The Plaintiffs also contend that “the video shows that Officer Franco Struck Howard in the
head at least once,” although the Plaintiffs do not cite specific portions of the record to support
this contention. Response ¶ 14, at 7. The Movants argue in response that the video evidence
“directly contradict[s]” “Howard’s version of events,” and so the Court should “disregard[]”
Howard’s contentions. Reply ¶ 22, at 6 (citing Scott v. Harris, 550 U.S. at 380). The Movants
argue 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.’” Reply ¶ 22, at 6
(quoting Scott v. Harris, 550 U.S. at 380).
The Movants are correct that nonmovants cannot posit a genuine factual dispute when
video evidence so thoroughly discredits the nonmovant’s version that no reasonable jury could
believe that version. See Reply ¶ 22, at 6; Lymon v. Aramark Corp., 728 F. Supp. 2d 1222, 1240
(D.N.M. 2016)(Browning, J.). Nonetheless, rule 56 of the Federal Rules of Civil Procedure
dictates that the typical presumption in favor of the nonmovant will give way only when the video
evidence is unequivocal. See Rhoads v. Miller, 352 F. App’x at 291-92.
The Court has reviewed carefully each of the Lapel Videos, and concludes that the video
evidence regarding where Franco struck Howard is not unequivocal. To support their contention
that the video evidence contradicts “directly” Howard’s version, Reply ¶ 22, at 6, the Movants cite
a two-second portion of the Jones Lapel Video. See MSJ ¶ 26, at 7 (citing Jones Lapel Video at
2:24-2:26). The video shows Franco lining up to knee Howard while Howard’s head is clearly
visible in the path of Franco’s knee. See Jones Lapel Video at 2:23. As Franco begins his strike,
however, Franco places his body between Jones’ lapel camera and Howard’s head, obstructing the
lapel camera’s view of where Franco struck Howard. See Jones Lapel Video at 2:24. The Court
is unable to resolve the ambiguity with the other lapel videos. The Chafin Lapel Video -- the best
view of Franco’s knee strikes -- shows Franco’s knee striking Howard’s face. See Chafin Lapel
31
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strikes after officers secured both of Howard’s hands. See MSJ ¶ 27, at 7 (stating this fact)(citing
Jones Lapel Video at 2:22-3:08; Franco Lapel Video at 7:02-7:34).32 Chafin never struck Howard.
See MSJ ¶ 28, at 7 (stating this fact)(citing Franco Depo. at 49:5-9; Jones Lapel Video at 2:153:09; Franco Lapel Video at 2:45-3:30).33 Molina did not strike Howard. See MSJ ¶ 29, at 7
(“Molina never delivered any strikes against Howard”)(citing Franco Depo. at 49:5-9; Jones Lapel
Video at 2:15-3:09; Molina Lapel Video at 2:40-3:35).34 Less than a minute elapsed between
Video at 2:50-2:53. Further, in the Reply, the Movants “incorporate their reply in support of DMF
Nos. 21-23 as their reply in support of DMF No. 26.” Reply ¶ 26, at 9. The section which the
Movants cite, however, does not address where Franco struck Howard, but rather addresses
Daffron’s strikes. See Reply ¶¶ 21-23, at 4-9. The Movants, accordingly, cite only to the Jones
Lapel Video in support of their contention that Franco struck Howard’s shoulder. Although the
Chafin Lapel video does not “utterly discredit[]” the Movants’ version, Scott v. Harris, 550 U.S.
at 379, the test at this stage is whether it has that effect on Howard’s version of events. See Fed.
R. Civ. P. 56(c). Here, the Plaintiffs assert that Franco struck Howard’s head, and have presented
evidence supporting that assertion. Because the video evidence does not render incredible
Plaintiffs’ supported assertion, the Court adopts as fact that Franco administered a knee strike to
Howard’s head.
The Plaintiffs “admit only that the video footage does not show that Defendant Franco
applied strikes to Mr. Howard after he was placed in handcuffs.” Response ¶ 17, at 9. The
Plaintiffs point to no “portions of the record upon which [they] rel[y]” in purporting to dispute the
text’s fact. D.N.M.LR-Civ. 56.1(b). The Court therefore deems the text’s fact undisputed and will
discuss its relevancy in the Analysis. See D.N.M.LR-Civ. 56.1(b).
32
In addressing the text’s fact, the Plaintiffs “admit only that the video footage does not
show that Defendants Molina and Chafin struck Mr. Howard,” but argue that the video footage
“does not show everything that happened.” Response ¶ 18, at 19. The Plaintiffs point to no
“portions of the record upon which [they] rel[y],” in purporting to dispute the text’s fact.
D.N.M.LR-Civ. 56.1(b). Further, the Plaintiffs must create more than a “metaphysical doubt” in
defending against the Movants proffered facts. Matsushita Indust. Co. v. Zenit Radio Corp., 475
U.S. 574, 587 (1986). The Court therefore deems the text’s fact undisputed and will discuss its
relevancy in the Analysis. See D.N.M.LR-Civ. 56.1(b).
33
The Plaintiffs purport to dispute the text’s fact, and state that the “Plaintiffs admit only
that the video footage does not show that Defendants Molina and Chain struck Howard,” but assert
that “the video footage does not show everything that happened.” Response ¶ 18, at 9. The
Plaintiffs assert that the diagram of the officers’ and Howard’s positions during the incident
34
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Howard fleeing the bait vehicle on foot and officers placing him in handcuffs, at which point
Chafin told the other officers “alright, alright,” and indicated that the officers had neutralized the
threat. See MSJ ¶ 30, at 7 (stating this fact)(citing Jones Lapel Video at 2:00-2:50); Response ¶
30 (stating that “Plaintiffs admit DMF No. 30).
The lapel videos show a pool of Howard’s blood on the street below Howard’s head. See
Response ¶ 14, at 7 (stating this fact)(citing Jones Lapel Video at 3:15-3:34).35 Howard was
demonstrates that “each body camera, while in motion along with its carrier, only provides a
limited perspective.” Response ¶ 18, at 9-10 (citing Incident Diagram, filed November 5, 2019
(Doc. 109-1)). The Court understands the Plaintiffs’ argument to be that the Court should treat the
lapel videos with skepticism and keep in mind that they may not be a comprehensive depiction of
everything that happened. The Court may consider, however, only the evidence before it. See
Ysasi v. Brown, 3 F. Supp. 3d 1088, 1166 (D.N.M. 2014)(Browning, J.). The lapel videos -- that
five officers took from five different perspectives -- are the most reliable evidence available to the
parties and the Court. Although the Court views the evidence in the light most favorable to
Plaintiffs, the Court should view the facts in the light depicted by the videotape, see Scott v. Harris,
550 U.S. at 378, but to the extent the video does not capture everything that occurred, the Court
will review all summary judgment evidence. As the Movants assert that Molina did not strike
Howard, and the Plaintiffs have cited no evidence showing that Molina struck Howard, the Court
adopts as undisputed the text’s fact.
The Court derives the text’s fact from one of the Plaintiffs’ additional, non-numbered
proposed facts. Although the Plaintiffs do not comply with D.N.M.LR-Civ. 56.1(b) in proposing
the text’s fact, the Court, to be fair to the Plaintiffs, construes the proposed facts as additional
material facts for the MSJ’s purposes. The Movants do not specifically address the proposed fact
in the Reply, but assert that the Plaintiffs “offer no evidence (such as expert medical testimony or
forensic testimony) to establish any injuries suffered by Howard.” Reply ¶ 23, at 8. The Court
agrees that the Plaintiffs have not offered expert testimony to establish the nature and extent of
Howard’s injuries, but the Court concludes that the record supports the text’s fact, and expert
testimony is not needed to prove the text’s fact. First, the lapel videos show a pool of blood in the
street trailing from Howard’s head. See Jones Lapel Video at 3:03-3:06; Chafin Lapel Video at
3:40-3:47; Franco Lapel Video at 7:55; Molina Lapel Video at 3:53. Second, Franco states in the
Franco Depo. that none of the officers were injured in the incident, see Franco Depo. at 87:2288:11, and none of the officers reported injuries in their reports, see Franco Supplemental Report
at 1; Daffron Supplemental Report at 1; Daffron Use of Force Report at 1; Franco Use of Force
Report at 1. The incident reports also reflect that Howard’s face was bleeding after the incident.
See Daffron Use of Force Report at 4 (stating that Howard had a “Bloody Nose”); Franco Use of
Force Report at 4 (same). Because the Movants do not controvert the text’s fact, and the record
35
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disoriented and in pain after his arrest. See Response ¶ 14, at 9 (stating that Howard “appeared to
be . . . in pain as he is being handcuffed”)(citing Franco Depo. at 84:2-84:5; Jones Lapel Video at
2:26-2:31).36 Finally, Franco believed, from his police training, that knee strikes to a suspect’s
head constitute deadly force. See Response ¶ 14, at 7 (stating this fact)(citing Franco Depo. at
73:12-74:3; id. at 76:6-16).37
PROCEDURAL BACKGROUND
The Plaintiffs filed their original complaint in New Mexico State Court, Second Judicial
District, on June 23, 2017. See Complaint for Violations of Civil Rights Pursuant to §§ 1983 and
supports the text’s fact, the Court deems the text’s fact undisputed. See D.N.M.LR-Civ. 56.1(b)
(“All material facts set forth in the Response will be deemed undisputed unless specifically
controverted.”).
The Movants purport to dispute this text’s fact, and assert that the Plaintiffs “offer no
evidence (such as expert medical testimony or forensic testimony) to establish any injuries suffered
by Howard.” Reply ¶ 23, at 8. The Movants accordingly do not specifically controvert the text’s
fact, but rather argue that the Court should require more evidence from the Plaintiffs before
adopting the text’s fact. The Court notes, however, that Howard asserts in his affidavit: “I was
hurt and in a lot of pain. My head was hurting bad.” Howard Aff. ¶ 9, at 2. Howard’s Affidavit
is based on his personal knowledge, describing what he felt. Under Murray v. City of Sapulpa, 45
F.3d at 1422, and Kephart, 243 F. Supp. 2d at 1209, the Court may consider and considers the
Howard Aff. to the extent that it is based on his personal knowledge. The Court accordingly adopts
the text’s fact as undisputed because the Movants do not specifically controvert it, and the Court
has no independent reason to doubt its accuracy. See D.N.M.LR-Civ. 56.1(b) (“All material facts
set forth in the Response will be deemed undisputed unless specifically controverted”).
36
The Plaintiffs’ assert that Franco knew that “using hand or knee strikes on the head can
constitute deadly force.” Response ¶ 14, at 7. The portion of the record to which the Plaintiffs
cite supports the text’s fact. See Franco Depo. at 73:12-74:3 (Franco)(asserting that a knee strike
to the head “could cause deadly force” and that “being hit in the head can cause death”). In the
Reply, the Movants do not controvert specifically the Plaintiffs’ additional facts surrounding
Franco’s view as to the lethality of knee strikes to the head. See D.N.M.LR-Civ. 56.1(b) (“All
material facts set forth in the Response will be deemed undisputed unless specifically
controverted.”). The Court therefore will deem the text’s fact as undisputed. The Court will
address this fact’s materiality in this Opinion’s Analysis section.
37
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1988 and the New Mexico Tort Claims Act and for Damages at 1, filed August 21, 2017 (Doc. 11)(“Complaint”). The Complaint’s Count I alleges excessive force by Franco, Daffron, Chafin,
and Molina in violation of 42 U.S.C. § 1983. See Complaint ¶¶ 41-49, at 7. The Complaint’s
Count II asserts a claim under Monell v. Department of Social Services, 436 U.S. 658
(1978)(“Monell”) against Defendant City of Albuquerque. See Complaint ¶¶ 50-56, at 8-9. The
Complaint’s Count III alleges loss of consortium for Howard’s children. See Complaint ¶¶ 57-60,
at 9-10. The City of Albuquerque, invoking federal-question jurisdiction, removed this case to
federal court on August 21, 2017. See Notice of Removal at 1, filed August 21, 2017 (Doc. 1).
Franco, Daffron, Chafin, and Molina each consented to this case’s removal. See Notice of
Removal ¶¶ 8-10, at 2-3.
1.
The MSJ.
On October 4, 2019, the Movants filed the MSJ, invoking the doctrine of qualified
immunity, and asked the Court to grant summary judgment in their favor on Counts I and III. See
MSJ at 3. For Count I, the Movants contend that Daffron used objectively reasonable force,
entitling him to summary judgment. See MSJ at 3. The Movants further assert that Howard cannot
prove that the Movants violated his clearly established rights by failing to intervene and protect
Howard from Franco and Daffron, because neither Franco nor Daffron used objectively
unreasonable force. See MSJ at 4. The Movants alternatively contend that, even if Franco or
Daffron used unconstitutional force, the Movants had no opportunity to intervene. See MSJ at 4.
The Movants also question whether the law is clearly established such that intervention is
constitutionally required. See MSJ at 4. Finally, the Movants assert that their liability on the
Complaint’s Count III -- which posits a claim for loss of consortium -- depends on actual
- 20 -
constitutional violations and that, because they did not violate Howard’s clearly established rights,
they are entitled summary judgment on Count III.
The Movants begin by discussing rule 56 of the Federal Rules of Civil Procedure. The
Movants contend that summary judgment is “‘an integral part of the Federal Rules as a whole,
which are designed “to secure a just, speedy and inexpensive determination of every action.”’”
MSJ at 8 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)(“Celotex”)(quoting Fed. R.
Civ. P. 1)). The Movants contend that they carry their burden under rule 56 by establishing that
there are no genuinely disputed material facts, and that the Plaintiffs are unable to “‘establish the
existence of an element essential to [their case], and on which [the Plaintiffs] will bear of burden
of proof at trial.’” MSJ at 8 (quoting Celotex, 477 U.S. at 323; citing Lujan v. Nat’l Wildlife
Fed’n, 497 U.S. 871, 884-85 (1990)). The Movants argue that, if they meet their rule 56 burden,
the Plaintiffs must “establish the existence of a genuine issue for trial.” MSJ at 8 (citing Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). The Movants also say that
facts are material only if they “‘might affect the outcome of the suit under governing law.’”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986)(“Liberty Lobby”). Although the
Movants acknowledge that the Court must view the evidence in the light most favorable to the
Plaintiffs, the Court may not “‘assume’ that a disputed issue of material fact exists if there are
insufficient facts to support” the Plaintiffs’ allegations. MSJ at 8 (quoting Lujan v. Nat’l Wildlife
Fed’n, 497 U.S. at 888). The Movants also contend that the Court “must refuse to adopt a version
of the facts ‘so utterly discredited by the record that no reasonable jury could have believed [it].’”
MSJ at 9 (quoting Scott v. Harris, 550 U.S. 372 (2002)).
- 21 -
The Movants next discuss qualified immunity. See MSJ at 10. The Movants argue that
qualified immunity is more “‘than a mere defense to liability’” and is instead “‘immunity from
suit.’” MSJ at 10 (quoting Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)). The
Movants contend that qualified immunity serves to balance the public’s right to hold officials
accountable and the need to insulate those officials from baseless, distracting litigation. See MSJ
at 10 (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009)). The Movants therefore contend that
qualified immunity protects “‘all but the plainly incompetent or those who knowingly violate the
law.’” MSJ at 10 (quoting Malley v. Briggs, 475 U.S. 335, 343 (1986)).
The Movants aver that, because they assert qualified immunity, the Plaintiffs carry the
burden to establish that the Movants violated a clearly established right. See MSJ at 10 (citing
Saucier v. Katz, 533 U.S. 194, 200 (2001)). The Movants acknowledge that the Supreme Court
of the United States of America, in Saucier v. Katz, directed courts to first consider whether the
defendant violated a constitutional right, but assert that “courts may [now] address either prong of
the Saucier test first.” MSJ at 10 (citing Pearson v. Callahan, 555 U.S. at 236).
Turning to their legal argument, the Movants begin by contending that “Daffron is entitled
to qualified immunity as to his use of force.” MSJ at 11. The Movants argue that Howard “was a
non-compliant, felony suspect,” which renders Daffron’s use of force objectively reasonable. MSJ
at 11. The Movants argue that the Fourth Amendment governs the Plaintiffs’ claims, and requires
only that law enforcement use force that is objectively reasonable in light of the surrounding
context. See MSJ at 11 (citing Graham v. Connor, 490 U.S. 386, 397 (1989)). The Movants
assert that an officer’s intent or motivation is irrelevant, and that courts focus instead on the
“‘severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the
- 22 -
officers or others, and whether he is actively resisting arrest or attempting to evade arrest by
flight.’” MSJ at 11 (quoting Graham v. Connor, 490 U.S. at 396). This standard, the Movants
contend, reflects that officers must often “‘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.’” MSJ at 12 (quoting Graham v. Connor, 490 U.S. at 397).
The Movants assert that “all three Graham[ v. Connor] factors support Officer Daffron’s
use of force.” MSJ at 12. First, the Movants argue, Daffron suspected Howard of a felony offense.
See MSJ at 12 (citing N.M. Stat. Ann. § 30-16D-1). Second, according to the United States, the
officers did not know whether Howard was armed, because he “did not show officers his hands
and instead kept his hands tucked under his body.” MSJ at 12. The Movants contend that, because
the officers could not see one of Howard’s hands, they reasonably believed he was “potentially
armed.” MSJ at 12 (citing United States v. Harris, 313 F.3d 1228, 1236 (10th Cir. 2002); United
States v. Peterson, No. 1:06-CR-94 TS, 2007 WL 1390362, at *2 (D. Utah May 9, 2007)(Stewart,
J.)). Third, the Movants argue that “Howard was attempting to evade and resist arrest,” because
he did not stop the bait vehicle when officers initiated their sirens and then ran from officers when
the vehicle stopped. MSJ at 12-13.
The Movants contend that the United States Court of Appeals for the Tenth Circuit, in
unpublished cases, “has found that the use of strikes such as those delivered by Officer Daffron
was objectively reasonable where the suspect was non-compliant with officers’ attempts to bring
the suspect into custody.” MSJ at 13 (citing Serrano v. United States, 776 F. App’x 561, 569 (10th
Cir. 2019)(unpublished); Youbyoung Park v. Gaitan, 680 F. App’x 724, 739-40 (10th Cir.
2017)(unpublished)). The Movants argue that such force may be constitutionally permissible even
- 23 -
where police injure the noncompliant suspect. See MSJ at 13 (citing Yadon v. Hilton, 516 F.
App’x 694, 695 (10th Cir. 2013)(unpublished)). The Movants say that, in Yadon v. Hilton, the
Tenth Circuit concluded that officers were justified in using force that resulted in injuries when a
suspect physically struggled against the officers’ attempts to arrest him. See MSJ at 13 (citing
Yadon v. Hilton, 516 F. App’x at 695). The Movants analogize that case to argue that Howard’s
non-compliance justified -- and therefore rendered constitutionally permissible -- Daffron’s three
knee strikes against Howard. See MSJ at 14.
Next, the Movants argue that, even if Daffron violated Howard’s Fourth Amendment
rights, those rights are not clearly established. See MSJ at 14. The Movants argue that a right is
clearly established if a reasonable officer is on notice of the right’s existence. See MSJ at 14. The
Movants aver that this step of the qualified immunity inquiry is fact-specific, and that a given right
is only clearly established when it is defined with specificity. See MSJ at 14 (citing White v.
Pauly, 137 S. Ct. 548, 552 (2017)). The Movants assert that the right to objectively reasonable
force is defined too generally to defeat qualified immunity for all but the most obvious cases. See
MSJ at 15-16 (citing White v. Pauly, 137 S. Ct. at 552). Without such a rule, the Movants contend,
“‘[p]laintiffs would be able to convert the rule of qualified immunity . . . into a rule of virtually
unqualified liability simply by alleging a violating of extremely abstract rights.’” MSJ at 14
(quoting White v. Pauly. 137 S. Ct. at 552)(alteration and omission in MSJ). The Movants contend
that courts apply the rule more stringently in cases involving excessive force allegations, because
it “‘is sometimes difficult for an officer to determine how the relevant legal doctrine . . . will apply
to the factual situation the officer confronts.’” MSJ at 15 (quoting Kisela v. Hughes, 138 S. Ct.
1148, 1153 (2018)).
- 24 -
The Movants argue that “Howard cannot carry his clearly established burden simply by
claiming Officer Daffron was on notice [that] he should not use excessive force,” or by asserting
that officers should not use force “on compliant and non-dangerous suspects.” MSJ at 15 (citing
City of Escondido, Cal. v. Emmons, 139 S. Ct. 500, 503 (2019); Kisela v. Hughes, 138 S. Ct. at
1153). “Instead,” the Movants argue, “Howard must point to a Tenth Circuit or Supreme Court
case establishing that under the factual circumstances present in this case, a reasonable officer in
Daffron’s position should have known the use of three knee strikes against Howard in order to
gain control of his hidden hand was excessive.” MSJ at 15. The Movants aver that Howard cannot
make such a showing. See MSJ at 15.
The Movants turn to Howard’s failure-to-intervene claim. See MSJ at 16. The Movants
contend that neither Chafin nor Molina used any “distraction techniques or knee strikes against
Howard,” and so failure to intervene is the only possible basis for their liability. MSJ at 16. As
Daffron used force, the Movants surmise that Howard alleges that Daffron “should have intervened
to stop Officer Franco.” MSJ at 16. The Movants acknowledge that a law enforcement officer’s
failure to intervene to prevent another’s use of excessive force may give rise to § 1983 liability.
See MSJ at 16 (citing Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir. 1996)). The Movants argue,
however, that “mere presence is not enough.” MSJ at 16 (citing Lusby v. T.G. & Y. Stores, Inc.,
749 F.2d 1423, 1433 (10th Cir. 1984)). The Movants contend that § 1983 liability attaches for
failure to intervene only when an officer sees or has reason to anticipate a constitutional violation,
and has the ability to intervene to stop the violation from occurring. See MSJ at 16 (citing Vondrak
v. City of Las Cruces, 535 F.3d 1198, 1210 (10th Cir. 2008)).
- 25 -
The Movants first address Chafin’s and Molina’s liability, and argue that they are not
liable, because Daffron did not use excessive force or, alternatively, because Chafin and Molina
did not have a realistic opportunity to intervene. See MSJ at 17. “The law is clear,” the Movants
contend, “that failure-to-intervene claims cannot survive absent an underlying use of
unconstitutional force.” MSJ at 17 (citing Jones v. Norton, 809 F.3d 564, 576 (10th Cir. 2015)).
The Movants further assert that, even if Daffron used excessive force, Chafin and Molina had no
opportunity to intervene because Daffron “delivered his strikes in rapid succession in less than
four [] seconds total.” MSJ at 17. The Movants assert that courts “have consistently held there is
no opportunity to intervene [when] the force takes place suddenly or occurs within a brief time
frame.”
MSJ at 18 (citing Savannah v. Collins, 547 F. App’x 874, 877 (10th Cir.
2013)(unpublished); Wallin v. Dycus, 381 F. App’x 819, 823-24 (10th Cir. 2010)(unpublished);
Thompson v. Boggs, 33 F.3d 847, 857 (7th Cir. 1994); Gaudreault v. Municipality of Salem, 923
F.2d 203, 207 n.3 (1st Cir. 1990); O’Neill v. Krzeminski, 839 F.2d 9, 11 (2nd Cir. 1988); Tanner
v. San Juan Cty. Sheriff’s Office, 864 F. Supp. 2d 1090, 1156 (D.N.M. 2012)(Browning, J.)). The
Movants contend that Daffron’s force was so brief that Chafin and Molina had no opportunity to
intervene, and, accordingly, did not violate Howard’s Fourth Amendment rights. See MSJ at 18.
Next, the Movants apply the same arguments to Franco’s use of force. The Movants assert
that it “is undisputed that Officer Franco delivered a single knee strike to Howard prior to Howard
being handcuffed.” MSJ at 19. The Movants “acknowledge,” however, “that a dispute of fact
exists at this stage regarding whether Officer Franco’s strike was to Howard’s shoulder or his
head.” MSJ at 19. “It is certainly arguable,” the Movants posit, that Franco did not use excessive
force “even if Officer Franco’s knee did hit Howard in the head.” MSJ at 19 (citing Serrano v.
- 26 -
United States, 776 F. App’x at 569). The Movants argue that the Court need not resolve where
Franco struck Howards or whether Franco’s force was excessive for the MSJ’s purposes. See MSJ
at 19.
The Movants assert that they had no opportunity to intervene regardless of the
constitutionality of Franco’s strikes and so the Movants did not violate Howard’s constitutional
rights. See MSJ at 19-20. Turning to qualified immunity’s next prong, the Movants contend that
their lack of intervention does not violate any clearly established rights. See MSJ at 20. The
Movants depict Howard’s burden as “heavy,” and contend that “Howard will be unable to sustain
this burden,” because of “the significant amount of case law showing that officers do not have a
duty to intervene where there is no underlying unconstitutional force and/or where the force is
used suddenly or briefly.” MSJ at 20-21.
Finally, the Movants contend that the Court must dismiss the Plaintiffs’ loss of consortium
claim, because the claim “is derivative of other injuries and not an injury in and of itself.” MSJ at
21 (citing Fitjerell v. City of Gallup ex rel. Gallup Police Dep’t, 2003-NMCA-125, ¶ 12, 79 P.3d
836, 840-41). The Movants contend that, under New Mexico caselaw, the Plaintiffs may not
recover on the Complaint’s Count III unless they first prove a direct constitutional violation. See
MSJ at 21 (citing Weise v. Washington Tru Sols., L.L.C., 2008-NMCA-121, ¶ 30, 192 P.3d 1244,
1255). The Movants assert that the Court must dismiss the Plaintiffs’ loss of consortium claim,
“because Howard himself is not entitled to any recovery against” the Movants. MSJ at 21.
Accordingly, the Movants request that the Court grant summary judgment on all of the Plaintiffs’
claims against Daffron, Chafin, and Molina. See MSJ at 21.
- 27 -
2.
The Response.
The Plaintiffs respond. See Response at 1. The Plaintiffs begin by asserting that summary
judgment is “premature” because the Plaintiffs require additional discovery to respond properly to
the MSJ. Response at 1. The Plaintiffs acknowledge that they stipulated to a stay when the
Movants filed the MSJ, “as long as Plaintiff was not precluded from submitting a Fed. R. Civ. Pro.
56(d) Affidavit.” Response at 1. The Plaintiffs acknowledge that the lapel videos “illuminate[] a
fair portion of the facts” necessary for the Court to resolve the MSJ, but assert that “the videos do
not capture everything.” Response at 1-2. Specifically, the Plaintiffs contend that they must
depose the rest of the Defendants, as well as Gorden Eden, Jim Jury, and Joseph Viers38 “to capture
a full picture of the force” which the Movants and Franco used, and which APD sanctioned.
Response at 2. The Plaintiffs aver that the Movants’ reports present inconsistent narratives, so the
Plaintiffs must “depose specific witnesses and the remaining Defendants and challenge the
veracity of their statements.” Response at 2. The Plaintiffs argue, alternatively, that the parties
dispute material facts, and so summary judgment is improper. See Response at 2.
Turning to the case’s procedural posture, the Plaintiffs assert that, typically, courts may not
weigh evidence and “must resolve genuine disputes of material fact in favor of the nonmoving
party.” Response at 10 (citing Tolam v. Cotton, 572 U.S. 650 (2014)(per curiam)). The Plaintiffs
Gorden Eden is the former Chief of the APD. See Matthew Reisen, “APD Chief Gorden
Eden
announces
retirement,”
Albuquerque
Journal,
Nov.
4,
2017,
https://www.abqjournal.com/1088088/abq-police-chief-eden-announces-his-retirement.html (last
visited Feb. 18, 2020). Jim Jury is an internal affairs investigator to the APD. See Plaintiffs’
Response in Opposition to Officer Franco’s Motion for Summary Judgment Based on Qualified
Immunity at 2, filed January 31, 2020 (Doc. 126). Joseph Viers is a sergeant in the APD who
supervised Daffron, Chafin, and Molina on October 30, 2015. See Affidavit of Louren Oliveros ¶
4, at 1 (taken Nov. 4, 2019), filed Nov. 4, 2019 (Doc. 107-29)(“Oliveros Aff.”).
38
- 28 -
assert, however, that this presumption shifts partially when the moving party asserts qualified
immunity. See Response at 10. The Plaintiffs assert that, when a party moves for summary
judgment based on qualified immunity, the nonmoving party must demonstrate that the official
violated a clearly established right. See Response at 10-11 (citing Quinn v. Young, 780 F.3d 998,
1004 (10th Cir. 2015)). The Plaintiffs agree with the Movants that the Court may address “the two
prongs of the qualified-immunity standard in either order,” because the Movants prevail if the
Plaintiffs fail to establish both prongs. Response at 10 (citing A.M. v. Holmes, 830 F.3d 1123,
1134-35 (10th Cir. 2016)).
The Plaintiffs next discuss the standard for Fourth Amendment excessive force claims. See
Response at 10. The Plaintiffs assert that the Fourth Amendment “‘guarantees citizens the right
to be secure in their persons against unreasonable seizures of the person.’” Response at 10 (citing
Graham v. Connor, 490 U.S. at 386). The Plaintiffs say that courts analyze excessive force claims
under an objective standard, closely scrutinizing 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.’” Response at 10 (citing Casey v. City of Federal Heights, 509 F.3d 1278, 1281
(10th Cir. 2007)). The Plaintiffs contend that these factors are not exclusive, and that courts may
consider other factors to gauge the reasonableness of the officials’ actions. See Response at 11
(citing Cavanaugh v. Woods Cross City, 718 F.3d 1244, 1249 (10th Cir. 2013). The Plaintiffs
assert that the Tenth Circuit has
identified other relevant factors: “(1)[ ]whether the officers ordered the suspect to
drop his weapon, and the suspect’s compliance with police commands; (2) whether
any hostile motions were made with the weapon toward the officers; (3) the distance
- 29 -
separating the officers and the suspect; and (4) the manifest intention of the
suspect.”
Response at 12 (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)). The Plaintiffs note that
courts examine excessive force claims based on the information officers had when the conduct
occurred, and not based on facts discovered in hindsight. See Response at 10 (citing City of L.A.,
Cal. v. Mendez, 137 S. Ct. 1539 (2017)). The Plaintiffs accordingly note that summary judgment
is appropriate where an officer mistakenly, but reasonably, believes that the suspect posed a
danger. See Response at 11 (citing Saucier v. Katz, 533 U.S. at 205).
The Plaintiffs then turn to the clearly-established prong and assert that the Supreme Court
of the United States of America “has emphasized that the clearly established-law inquiry must be
guided by the ‘specific context of the case.’” Response at 12 (quoting Mullenix v. Luna, 136 S.
Ct. at 308.). The Plaintiffs assert, however, that “[t]here is no question that the general principle
governing the use of force is clearly established: deadly force is justified only if a reasonable
officer in the officer’s position would have had probable cause to believe that there was a threat of
serious physical harm to himself or others.” See Response at 12 (citing Graham v. Connor, 490
U.S. at 396; Cordova v. Aragon, 569 F.3d 1183, 1192 (10th Cir. 2009)).
The Plaintiffs turn to Daffron’s liability and assert that he is not entitled to qualified
immunity. See Response at 12. The Plaintiffs note that Daffron “concedes that he struck Mr.
Howard in the shoulder area two to three times.” Response at 12. The Plaintiffs argue, however,
that, in the light most favorable to the Plaintiffs, “Daffron is seen on video administering strikes
to Mr. Howard’s head.” Response at 12. To support this contention, the Plaintiffs say that the left
side of Howard’s face was bruised and bloody after his arrest. See Response at 12. The Plaintiffs
assert that Howard’s injuries prove that Daffron struck Howard in the head. See Response at 12.
- 30 -
Such force was not reasonable, the Plaintiffs argue, because Howard was unarmed, and “was not
verbally or physically resisting arrest in the video footage.” Response at 12. The Plaintiffs argue
accordingly that Howard “was not a danger to the officer, himself or the public [when] that force,
including deadly force, was used on him.” Response at 12. The Plaintiffs assert further that,
although Howard “was visibly injured on his head, in obvious pain, . . . the Defendants refused to
take him to the hospital.” Response at 12. Although the Plaintiffs note that “Howard had
committed a serious crime,” they assert that Daffron’s use of force was unreasonable under the
Graham v. Connor test. Response at 13. Applying the additional factors from Casey v. City of
Federal Heights, 509 F.3d 1278, the Plaintiffs assert that Howard was unarmed, “never made
hostile motions with a weapon,” and “intended to submit to arrest.” Response at 13. “In weighing
all of these facts,” the Plaintiffs contend, “it was clearly established that the Defendants were not
justified in using deadly force or striking Mr. Howard in the face or head.” Response at 13.
The Plaintiffs next distinguish the cases that the Movants cite. See Response at 13. The
Plaintiffs contend that the plaintiff in Youbyoung Park v. Gaitan, 680 F. App’x 724, “fought back
‘forcefully’ by tensing his arms, bracing his legs, and attempting to pull away from the officers.”
Response at 13 (quoting Youbyoung Park v. Gaitan, 680 F. App’x at 739-40). The Plaintiffs assert
that the Tenth Circuit concluded that the officers’ force in that case was proportional “given the
nature of Mr. Park’s ‘forceful[]’ physical resistance.” Response at 13 (quoting Youbyoung Park
v. Gaitan, 680 F. App’x at 739)(alteration in Response). That case is distinguishable, the Plaintiffs
argue, because “the only evidence of resistance is Officer Franco’s testimony that Mr. Howard
was concealing his hands.” Response at 13. The Plaintiffs aver that “there is no testimonial or
video evidence that supports even an inference that Mr. Howard was fighting back.” Response at
- 31 -
14. Instead, the Plaintiffs argue that, in the light most favorable to them, Howard ultimately
submitted to arrest before Daffron exerted lethal force. See Response at 14. To support this
contention, the Plaintiffs note that the crime Howard was suspected of committing -- car theft -- is
“a felony, but not a crime of violence.” Response at 14. Although Howard did not immediately
respond to the officers’ demands that he stop, the Plaintiffs assert that Howard did not exceed
speed limits. See Response at 14. The Plaintiffs say that, when Howard exited the vehicle, he did
so “with his arms in plain view and open as if to surrender.” Response at 14. The Plaintiffs note
that Howard “was eluding initially,” but contend that he “then crouched down in [the] fetal position
with his hands, not hidden, but in plain sight protecting his head.” Response at 14. It was then,
the Plaintiffs assert, that the Movants and Franco used deadly force. See Response at 14. The
Plaintiffs assert that “[a]t no time did Mr. Howard fight back or physically threaten the Defendants
during the melee-like use of force applied against him.” Response at 14.
The Plaintiffs also distinguish Yadon v. Hilton, 516 F. App’x 694. See Response at 14.
The Plaintiffs note that Yadon v. Hilton, along with several cases which the Movants cite, is
unpublished and “not binding on this Court.” Response at 14. The Plaintiffs say that, in Yadon v.
Hilton, the suspect “struggled for several minutes before being handcuffed,” yelled, and “pulled
his arm away several times,” justifying officers’ use of force. Response at 14 (citing Yadon v.
Hilton, 2013 WL 160445, at *4 (D. Kan. Jan. 15, 2013)(Rogers, J.)). The Plaintiffs assert that,
[u]nlike the Plaintiff in Yadon, Mr. Howard was not overtly threatening the Defendants,” and
“never yelled . . . or sw[u]ng his arms around at the officers.” Response at 15. The Plaintiffs also
distinguish Serrano v. United States, 766 F. App’x 561. See Response at 15. In that case, the
Plaintiffs argue, officers knew that the plaintiff was prone to fleeing, assaulting police officers,
- 32 -
and carrying weapons. See Response at 15 (citing Serrano v. United States, 766 F. App’x at 563,
566-67). The Plaintiffs say that, when the officers tried to arrest the plaintiff in that case, the
plaintiff “appeared to be reaching in his console for what could have been a firearm after being
shot by other defendants,” which justified the officers’ force, “including repeatedly striking the
back of his head.” Response at 15 (citing Serrano v. United States, 766 F. App’x at 566). The
Plaintiffs assert that Serrano v. United States is distinguishable because the Movants did not know
Howard’s criminal history or suspect him “to be armed [or] have a history fleeing and being
combative with law enforcement.” Response at 15. The Plaintiffs accordingly request that the
Court deny the MSJ as to Daffron. See Response at 15.
The Plaintiffs turn to their argument that Chafin and Molina are not entitled to qualified
immunity. The Plaintiffs contend that an “‘officer who fails to intervene to prevent a fellow
officer’s excessive use of force may be liable under § 1983.’” Response at 16 (quoting Fogarty v.
Gallegos, 523 F.3d 1147, 1163 (10th Cir. 2008)). The Plaintiffs note that an officer must have the
opportunity to intervene for liability to arise. See Response at 16 (citing Fogarty v. Gallegos, 523
F.3d at 1136). The Plaintiffs dispute the Movants’ contention that Franco “delivered a single knee
strike” before the officers handcuffed Howard. Response at 16. Instead, the Plaintiffs assert that
Franco and Daffron “both administered multiple knee strikes to Mr. Howard, including his head
and face, while all Defendants held him down.” Response at 16. The Plaintiffs contend that Chafin
and Molina had the opportunity to intervene, because, “not only” were they “in the immediate
vicinity of where force was being used, but Defendants Molina and Chafin also participated in the
use of force on Mr. Howard to hold him down.” Response at 16. The Plaintiffs argue that they
need to depose Chafin and Molina “to determine how much force each used against Mr. Howard.”
- 33 -
Response at 16. The Plaintiffs nonetheless contend that, “[b]ased on the record to date, a jury
could logically and reasonably infer that Defendants had an opportunity to intervene and failed to
do so.” Response at 16. Finally, the Plaintiffs argue that their loss of consortium claims are viable,
because they derive from valid § 1983 claims against the Movants. Response at 16. The Plaintiffs
accordingly request that the Court deny the MSJ.
3.
The Reply.
The Movants reply. See Reply at 1. The Movants begin by contending that there are no
disputed material facts. See Reply ¶¶ 1-30, at 1-9. The Movants contend that the “Plaintiffs
attempt to muddy the waters by alternatively relying on the video and officers’ statements.” Reply
at 9. Although the Movants argue that the Court should not rely on any statements that the lapel
videos contradict, they “ask the Court to review the video portions specifically identified by the
Defendants to determine whether [proposed facts] are disputed or not.” Reply at 9. The Movants
request that the Court “reject any attempt by Plaintiffs to dispute clear video evidence by using
officers’ statements or testimony.” Reply at 9.
Turning to their legal argument, the Movants begin by asserting that Daffron is entitled to
qualified immunity as to his use of force. See Reply at 9. The Movants agree that the Court must
view the evidence in the light most favorable to the Plaintiffs, but argue that this standard “does
not mean the Court has to see evidence in the video which is simply not there []or disregard what
is clearly depicted in the video.” Reply at 9 (citing Navarro v. New Mexico Dep’t. Pub. Safety,
No. Civ. 16-1180-JMC, 2018 WL 4148452, at *3, n.3 (D.N.M. Aug. 30, 2018)(Carson, J.)). The
Movants also aver that the Plaintiffs “conflate the concept of non-compliance with commands with
overt physical or verbal threats towards officers.” Reply at 10. The Movants assert that the lapel
- 34 -
videos show that “Howard’s hands are not visible, he is ordered to show his hands and does not,
during which time Officer Daffron uses force.” Reply at 10. The Movants contend that the
Plaintiffs are mistaken in their assertions that Howard “was trying to surrender” when Daffron
used force. Reply at 10. Even if, at some point, Howard attempted to surrender, the Movants
argue, “officers did not know what Howard had in his waistband or accessible in the hand that was
concealed under his body” when Daffron used force. Reply at 10. The Movants assert that courts
conclude consistently that force, including deadly force, is reasonable “where a suspect places his
or her hands in his/her waistband area as Howard did when his hand was underneath his body after
being placed on the ground.” Reply at 10 (citing Cruz v. City of Anaheim, 765 F.3d 1076, 1079
(9th Cir. 2014)). The Movants also argue that, although the Plaintiffs seek to distinguish the
Defendant’s cited cases, they “did not cite any case law establishing that Officer Daffron’s actions
were objectively unreasonable.” Reply at 10. The Movants accordingly contend that, even if
Daffron’s force amounted to a constitutional violation, the law on which the Plaintiffs rely is not
clearly established. See Reply at 10-11.
The Movants turn to the Plaintiffs’ failure-to-intervene claim. See Reply at 11. The
Movants characterize the Plaintiffs’ argument as asserting that, “simply by being close enough to
help hold Howard down, Officers Chafin and Molina are subject to liability.” Reply at 11.
Although the Movants maintain that Daffron’s and Franco’s force was constitutionally
permissible, the Movants argue that, because Franco and Daffron’s force was brief and sudden,
Chafin and Molina had no opportunity to intervene. See Reply at 11. The Movants also argue that
the Plaintiffs have not demonstrated that the Movants’ lack of intervention violates Howard’s
clearly established rights. See Reply at 12. The Movants contend that the Plaintiffs cite only
- 35 -
“general propositions regarding failure-to-intervene claims, ignoring the Supreme Court’s
repeated admonitions that the clearly established analysis, especially in the Fourth Amendment
context, is extremely fact-intensive.” Reply at 12 (citing Kisela v. Hughes, 138 S. Ct. at 1153).
The Movants summarize their argument: “Plaintiffs have failed to cite to a factually analogous
case, even relying on their own version of the facts, which demonstrates a reasonable officer would
have known he/she would violate Howard’s Fourth Amendment rights by failing to intervene.”
Reply at 12. The Movants accordingly request that the Court grant the MSJ.
4.
The Rule 56(d) Response.
On November 26, 2019, the Movants filed a separate response to the Plaintiffs’ discovery
request.39 See Defendants Daffron, Chafin, and Molina’s Amended Response to Plaintiffs’
As discussed supra, the Plaintiffs have not filed a separate motion for additional discovery
under rule 56(d) of the Federal Rules of Civil Procedure, but rather include a rule 56(d) request in
their Response to the MSJ. See Response at 1-2. The Plaintiffs attach to the Response an affidavit
from Plaintiffs’ counsel, in which the Plaintiffs’ counsel noted that they had scheduled depositions
for each of the individual Movants before the Movants filed their Motion for Protective Order
Staying Discovery Pending the Court’s Disposition of Defendants’ Motion for Summary Judgment
on the Basis of Qualified Immunity, filed October 4, 2019 (Doc. 103)(“Motion to Stay”). See
Affidavit of Louren Oliveros ¶ 7, at 2 (taken November 4, 2019), filed November 4, 2019
(Doc. 107-29)(“Oliveros Aff.”). The Plaintiffs’ counsel, Louren Oliveros, attests that Plaintiffs
stipulated to a discovery stay pending the Court’s ruling on the MSJ, but “reserved the right to
submit a Rule 56(d) affidavit as a part of the agreement.” Oliveros Aff. ¶ 8 at 2. Ms. Oliveros
attests that the Plaintiffs seek to depose each of the Movants and their Sergeant, Joseph Viers, as
well as the City of Albuquerque’s rule 30(b)(6) witness. See Oliveros Aff. ¶¶ 4-5, at 1. Ms.
Oliveros states that these depositions are “necessary for Plaintiffs to establish their Monell claims
of a pattern and practice by APD of perpetuating the unconstitutional use of force,” Oliveros Aff.
¶ 9, at 2, and that the Movants’ depositions are necessary “to obtain admissible evidence and
information not available from the video footage and discovery . . . about what transpired from
each of the Defendant’s [sic] individual perspectives,” Oliveros Aff. ¶ 10, at 2. Finally, Ms.
Oliveros asserts that
39
the depositions of the individual Defendants and other APD employees and
managers . . . are necessary in order to gain a complete picture about the use of
force policies at APD at the time of Mr. Howard’s arrest, to question the named
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Request for Discovery Pursuant to Fed. R. Civ. P. 56(D), filed November 26, 2019
(Doc. 117)(“Rule 56(d) Response”). The Movants argue that the Court should deny the Plaintiffs’
discovery request, because the Plaintiffs have failed to comply with rule 56(d) of the Federal Rules
of Civil Procedure. See Rule 56(d) Response at 2. The Movants contend that the Plaintiffs do not
adequately justify their request and instead assert conclusory statements about additional
discovery’s necessity. See Rule 56(d) Response at 2. “More importantly,” the Movants assert,
the parties and the Court can rely on “clear” video evidence which negates the need for additional
testimony. Rule 56(d) Response at 2. The Movants note that the Plaintiffs wish to depose officers
and city officials who were not present at Howard’s arrest and argue that these witnesses’
testimony is “irrelevant as a matter of law” to the Movants’ alleged constitutional violations. Rule
56(d) Response at 2. The Movants also aver that the Plaintiffs have not demonstrated that the
rights which Howard asserts are clearly established and so additional discovery will be futile to
the Plaintiffs in defending against the MSJ. See Rule 56(d) Response at 2.
The Movants contend that rule 56(d) requires that a party seeking additional discovery to
defend against a motion for summary judgment must identify with specificity all unavailable facts,
demonstrate why those facts are presently inaccessible, discuss what the party has done to obtain
the facts, and show how those facts are material to the summary judgment motion. See Rule 56(d)
Response at 2-3 (citing Valley Forge Ins., Co. v. Health Care Mgmt. Partners, 616 F.3d 1086, 1096
Defendants and other relevant witnesses about their knowledge of this case, and to
question parties and witnesses about the inconsistent statements that have been
provided by the police reports, use of force reports and other internal investigations
related to the force used on Mr. Howard and their knowledge of his injuries.
Oliveros Aff. ¶ 11, at 2-3.
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(10th Cir. 2010); Price ex rel. Price v. W. Res., Inc., 232 F.3d 779, 783 (10th Cir. 2000)). The
Movants also contend that courts should be skeptical of rule 56(d) motions that amount to stalling
tactics or fishing expeditions. See Rule 56(d) Response at 3 (citing Jensen v. Redevelopment
Agency of Sandy City, 998 F.2d 1550, 1553-54 (10th Cir. 1993)). The Movants further assert that,
when the summary judgment movant asserts qualified immunity, the non-movant’s rule 56(d)
affidavit “must also ‘demonstrate a connection between the information he would seek in
discovery and the validity of the [defendant’s] qualified immunity assertion.’” Rule 56(d)
Response at 3 (quoting Guiterrez v. Cobos, 841 F.3d 895, 908 (10th Cir. 2016))(alteration in Rule
56(d) Response).
Turning to their argument, the Movants assert that the “Plaintiffs have not adequately
shown the probable facts they hope to gain with additional discovery and how these facts will
impact the summary judgment ruling.” Rule 56(d) Response at 4. The Movants argue that the
Plaintiffs’ rule 56(d) affidavit does not assert with particularity the facts that the Plaintiffs seek
and does not describe adequately the efforts that the Plaintiffs have taken to obtain those facts.
See Rule 56(d) Response at 4-5. The Movants primarily attack the relevancy of the Plaintiffs’
requested evidence. The Movants characterize the Plaintiffs’ request as seeking information on
Chafin’s and Molina’s use of force, but the Movants assert that “these officers’ use of force is not
even at issue in the motion.” Rule 56(d) Response at 4. The Movants also dispute the Plaintiffs’
assertion that Franco’s deposition testimony differs from his reporting on whether Daffron used
force. See Rule 56(d) Response at 4. The Movants contend that, at his deposition, “Franco simply
agreed with counsel’s commentary that upon reviewing the video ‘we just can’t see [] exactly what
he’s doing; is that right.’” Rule 56(d) Response at 4 (quoting Franco Depo. at 81:1-19)(alteration
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in Rule 56(d) Response). The Movants argue that “counsel’s commentary,” on which the Plaintiffs
rely for their rule 56(d) request, is not evidence and so cannot serve as the basis for the Plaintiffs’
request. Rule 56(d) Response at 4.
The Movants also assert that the Plaintiffs’ requested discovery is not necessary to defend
against the MSJ. See Rule 56(d) Response at 4-5. The Movants argue that the depositions which
the Plaintiffs seek to take pertain to the Plaintiffs’ Monell claim and not to the Movants, and so
are irrelevant to the MSJ. See Rule 56(d) Response at 4. “The most significant flaw in the
Plaintiffs’ request,” the Movants assert, “is that the video as a matter of law controls the factual
record.” Rule 56(d) Response at 5 (citing Scott v. Harris, 550 U.S. at 378-80; Carabajal v. City of
Cheyenne, 847 F.3d 1203, 1207 (10th Cir. 2017); Roybal-Mack v. N.M. Dep’t of Pub. Safety, 286
F. Supp. 3d 1226, 1236-37 (D.N.M. 2017)(Johnson, J.)). The Movants contend that video evidence
trumps all other forms of evidence, including testimonial evidence, so the Plaintiffs cannot locate
any further evidence to create genuine factual disputes. See Rule 56(d) Response at 6. The
Movants argue that courts routinely deny rule 56(d) requests in similar situations. See Rule 56(d)
Response at 6 (citing Martin v. Cty. of Santa Fe, No. CIV 13-0575 KBM/RHS, 2014 WL
11398752, at *5 (D.N.M. July 21, 2014)(Molzen, M.J.), aff’d, 626 F. App’x 736 (10th Cir. 2015);
Valencia v. De Luca, No. 13 CIV 930 JAP/WPL, 2014 WL 11430951, at *11 (D.N.M. Aug. 26,
2014)(Parker, J.), aff’d, 612 F. App’x 512 (10th Cir. 2015); F.M. v. Labarge, No. CIV 12-0074
RCB/ACT, 2012 WL 13070072, at *5 (D.N.M. Dec. 7, 2012)(Torguson, M.J.)). The Movants
then allege that the Plaintiffs seek the officers’ subjective impressions of Howard’s arrest, which,
the Movants argue, are not relevant to the “objective reasonableness test” that the MSJ involves.
Rule 56(d) Response at 7. Finally, the Movants s argue that the Plaintiffs have not demonstrated
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how additional discovery will reveal facts related to the Movants’ assertion of qualified immunity.
See Rule 56(d) Response at 8.
5.
The Rule 56(d) Reply.
The Plaintiffs reply. See Plaintiffs’ Reply to Defendants Daffron, Chafin and Molina’s
Amended Response to Plaintiffs’ Request for Discovery Pursuant to Fed.R.Civ.P.56(D), filed
December 10, 2019 (Doc. 120)(“Rule 56(d) Reply”). The Plaintiffs argue that their “request for
additional discovery complies with Fed.R.Civ.P.56(D) [sic] and is necessary to establish [their]
claims.” Rule 56(d) Reply at 1. The Plaintiffs assert that their rule 56(d) affidavit states that the
Plaintiffs “seek[] to take depositions in order to establish Plaintiffs[’] claims . . . due to Plaintiff’s
inability to rely solely on the video evidence in this case” in defending against the MSJ.” Rule
56(d) Reply at 2 (citing generally Oliveros Aff.). The Plaintiffs disagree with the Movants’
characterization of the Plaintiffs’ cited support for the rule 56(d) request. See Rule 56(d) Reply at
2. The Plaintiffs assert that, contrary to the Movants’ contentions, Franco agrees in the Franco
Depo. that the Lapel Videos do not demonstrate clearly where Daffron struck Howard, and the
Plaintiffs argue that Franco’s agreement is evidence on which the Plaintiffs are permitted to rely
in their rule 56(d) request. See Rule 56(d) Reply at 2-3. The Plaintiffs note that Franco agreed
that the lapel videos show Daffron “applying distraction techniques . . . ‘towards the head of Mr.
Howard,’” but that Franco then “agreed with counsel’s statement that “‘we just can’t see in the
video exactly what he’s doing.’” Rule 56(d) Reply at 2-3 (quoting Franco Depo. at 81:1-19). The
Plaintiffs argue that Franco’s “responses from this line of questioning confirm[] that while there
is video evidence of the incident, not all the strikes inflicted on Mr. Howard by Officer Daffron
and the other officers were fully captured in the video and further depositions from the other
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officers are essential.” Rule 56(d) Reply at 3. The Plaintiffs also argue that, because “multiple
officers” crouched over Howard during the incident, “the view of the Plaintiff on the ground is
partially obstructed,” and so the Plaintiffs need “further discovery to question each Defendant
about their precise locations, the force each used and their respective observations.” Rule 56(d)
Reply at 3.
The Plaintiffs next assert that, to survive the MSJ, they must “demonstrate that the
Defendants violated a clearly established constitutional right that the reasonable person would
have known.” Rule 56(d) Reply at 4. The Plaintiffs argue that, because they carry such a burden,
“[a]t a minimum, Plaintiff must have access to all pertinent information as set forth in the Affidavit
of Louren Oliveros,” including “the additional requested depositions and any related discovery
stemming from those depositions.” Rule 56(d) Reply at 4. The Plaintiffs assert that, if the Court
denies the rule 56(d) request, the Court will be left with “an incomplete picture as to what occurred
at the time of the arrest,” unfairly prejudicing the Plaintiffs. Rule 56(d) Reply at 4.
6.
The Hearing.
The Court held a hearing on January 10, 2020. See Draft Transcript of Hearing at 1 (held
January 10, 2020)(“Tr.”).40 The Court began by indicating that it perceived the “crux” of the
parties’ factual dispute to be whether Daffron and Franco struck Howard’s torso, or whether they
struck his head. Tr. at 4:4-12 (Court). The Movants responded that, although that issue is the
central disagreement, the Movants argue that the video evidence shows clearly that Daffron struck
Howard’s torso and that Franco’s strikes are irrelevant for the MSJ’s purposes. See Tr. at 5:1-15
The Court citation to the hearing transcript refers to the unedited draft transcript.
Accordingly, page and line numbers are subject to slight change in the final transcript.
40
- 41 -
(Roman). The Movants contended that, if the only factual dispute is whether Franco struck
Howard’s head, then the Movants cannot be liable for failure to intervene to prevent Franco’s
force, because everything happened so quickly. See Tr. at 5:15-6:5 (Roman). The Court asked
the Movants which video they believe depicts most clearly the incident, and the Movants
responded that the Jones Lapel Video provides the clearest depiction. See Tr. at 6:5-11 (Court,
Roman). Although the Movants asserted that Daffron did not strike Howard’s head, the Movants
asserted that, even if Daffron struck Howard’s head, “the clearly established law wouldn’t
demonstrate to a reasonable officer that . . . that was excessive force under the circumstances.” Tr.
at 8:1-7 (Roman). The Movants further asserted that the Court need not resolve where Franco
struck Howard for the MSJ’s purposes. See Tr. at 8:7-10 (Roman).
The Movants also characterized the incident’s context, and argued that “this is an arrest of
someone who was fleeing after having been in a car that he stole for approximately two minutes,
seen moving around in the car and the officers did not have any way of knowing what he had in
his hand that was underneath his body.” Tr. at 8:17-22 (Roman). The Movants asserted that, in
that context, Daffron’s and Franco’s force was “simply an attempt to free [Howard’s] second hand
to get him under control in handcuffs.” Tr. at 8:23-25 (Roman). The Movants accordingly asserted
that “it is not against the clearly established law to use knee strikes . . . under these circumstances.”
Tr. at 9:21-24 (Roman). The Movants contended that the Plaintiffs carry the burden to identify
factually similar cases to demonstrate that his asserted rights are clearly established and argued
that the Plaintiffs attempt only to distinguish the cases on which the Defendants rely in their MSJ.
See Tr. at 10:1-7 (Roman). The Movants asserted that, by only distinguishing the Movants’ cases,
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the Plaintiffs seek to shift the burden “to the defendants to demonstrate the clearly established
law.” Tr. at 10:14-16 (Roman).
The Movants then turned to the Plaintiffs’ request for additional discovery. See Tr. at
10:19 (Roman). The Movants argued that the affidavit which the Plaintiffs’ counsel submits in
support of the Plaintiffs’ discovery request “largely concerned the Monell claim against the city,
which is not at issue in this motion.” Tr. at 10:25-11:2 (Roman). The Movants argued that the
Plaintiffs do not identify specifically the information they would secure through further discovery.
See Tr. at 11:2-5 (Roman). Citing rule 56 of the Federal Rules of Civil Procedure, the Movants
asserted that, to be entitled to further discovery, the Plaintiffs must demonstrate with specificity
the facts or issues that further discovery would resolve, and that the Plaintiffs have not made such
a demonstration. See Tr. at 11:9-13 (Roman). The Movants also contended that the Plaintiffs
“already ha[ve] sworn testimony regarding each officer’s action in the form of detailed accounts
of the incident, provided in interrogatory responses from each of the individual defendants.” Tr.
at 11:12-16 (Roman). The Movants argued accordingly that further depositions’ burden on the
Defendants outweighs any utility to the Plaintiffs. See Tr. at 11:23-25 (Roman).
The Court then asked the Plaintiffs which video they believe best captures their allegations,
and the Plaintiffs agreed with the Defendants that the Jones Lapel Video provides the clearest
depiction of Franco’s use of force. See Tr. at 14:9-12 (Roman). The Court asked the Plaintiffs
whether the lapel videos depict how many strikes Franco deployed, and the Plaintiffs responded
that the video evidence shows one strike clearly, but asserted that Franco’s “initial reports” listed
three strikes. Tr. at 15:18-16:2 (Court, Oliveros). The Plaintiffs contended, however, that Franco
said in his deposition that the lapel videos do not capture all of Daffron’s strikes, and so “it stands
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to reason . . . that the different officers’ videos would not necessarily capture everything that is
important in this case.” Tr. at 16:15-18 (Oliveros). When asked whether they had a theory as to
which of the officers’ strikes hit Howard’s head, the Plaintiffs responded that they did not have a
theory and said that further depositions would inform such a theory. See Tr. at 16:23-17:8 (Court,
Oliveros). The Plaintiffs opined, however, that the lapel videos capture Franco striking Howard’s
head. See Tr. at 17:12-16 (Oliveros).
The Court asked the Plaintiffs “how [they] would describe what [Franco] did as excessive
force.” Tr. at 18:7-10 (Court). The Plaintiffs responded that, although the officers suspected that
Howard committed a felony, Howard was not a threat to the officers. See Tr. at 18:12-15
(Oliveros). The Plaintiffs noted that, when officers arrested Howard, “there were no folks around
and there wasn’t any traffic around,” and “this wasn’t a high-speed chase,” minimizing any threat
Howard might pose to the public. Tr. at 18:21-23 (Oliveros). The Plaintiffs also contend that the
Franco Lapel Video shows that Howard exited the vehicle “with his hands up and there is nothing
in his hands.” Tr. at 18:25-19:2 (Oliveros). Howard “is never seen with a firearm” and “never
threatens the officers.” Tr. at 19:7-9 (Oliveros). The Plaintiffs assert accordingly that Howard did
not pose a threat to the officers, and so the only permissible force was that reasonably necessary
“to subdue” Howard. Tr. at 19:15-18 (Oliveros). “So we are focused on the head strikes,” the
Plaintiffs said, “because that is deadly force,” which, under the circumstances, was excessive. Tr.
at 18:21 (Oliveros). The Court asked whether the Plaintiffs’ analysis would change if, instead of
striking Howard’s head, the officers struck his shoulder. See Tr. at 19:22-20:1 (Court). The
Plaintiffs responded that, given the shoulder’s “close proximity to the head” and the risk of
misplacing a strike, “that would be excessive force.” Tr. at 20:6-10 (Oliveros). The Plaintiffs
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further asserted that Howard “was not resisting,” to which the Court responded: “He was resisting
as soon as he got out of the car and started running, and he never quit resisting.” Tr. at 20:16-22
((Oliveros, Court). The Plaintiffs agreed that, when Howard fled, “that was a sign of resistance,”
but argued that Howard stopped resisting before the officers “subdued him on the ground.” Tr. at
20:23-21:1 (Oliveros). The Plaintiffs asserted that, although the officers commanded Howard to
yield both hands, he was unable to do so, because one hand was pinned underneath him as officers
held him down, and so he was not resisting. See Tr. at 21:10-13 (Oliveros). The Plaintiffs
conceded, however, that the officers “had a right to arrest” Howard. Tr. at 21:21-22 (Oliveros).
Turning to the Plaintiffs’ claims against Chafin and Molina, the Court asked for the
Plaintiffs’ “theory as to what they should have done with Franco.” Tr. at 22:13-17 (Court). The
Plaintiffs acknowledged that events unfolded quickly, but noted that “there were several officers
there, . . . all within hand’s length of one another,” and so the Movants “could easily have deflected
the knee strike.” Tr. at 22:5-15 (Oliveros). The Plaintiffs also contended that, “based on the case
law[,] they understood that they had a duty to intervene.” Tr. at 22:15-17 (Oliveros). The Court
indicated its skepticism and noted that “it’s kind of difficult to deflect a knee strike if you don’t
know it’s coming,” and the officers had no warning that Franco might strike Howard’s head. Tr.
at 23:18-22 (Court). The Court asked how much time elapsed “from the first knee strike to the
last knee strike,” and the Plaintiffs responded that they needed more discovery to be certain, but
said that “we are talking about less than a minute and even most likely less than 30 seconds.” Tr.
at 24:8-18 (Court, Oliveros). The Plaintiffs later acknowledged that “it would have been seconds,
rather than minutes.” Tr. at 24:21-23 (Oliveros). The Plaintiffs also distinguished this case from
those that the Movants cite, because, in those cases, the video evidence “blatantly” contradicts the
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plaintiffs’ claims, whereas in this case, “the video evidence regarding the head strike at least by
Officer Franco is obvious.” Tr. at 25:7-11 (Oliveros). The Plaintiffs later asserted that Cordova
v. Aragon and Tennessee v. Garner are the two most factually apposite cases supporting the
Movants’ duty to intervene. See Tr. at 28:1 (Oliveros). The Plaintiffs also pointed to Lusby v.
T.G. & Y. Stores, Inc. and Mick v. Brewer as clearly establishing that duty. See Tr. at 28:3-5
(Oliveros).
Turning to their claims against Daffron, the Plaintiffs said that they “don’t have a good
video as to Officer Daffron’s knee strikes, because . . . they were [not] necessarily captured on []
video . . . [a]nd so in that case we’re relying on the testimony of the officers.” Tr. at 25:17-22
(Oliveros). The Plaintiffs averred that Daffron’s statements and reporting from the incident are
inconsistent regarding where he struck Howard. See Tr. at 26:10-13 (Oliveros). The Plaintiffs
asserted that, “because of the inconsistencies in Officer Daffron’s testimony . . . the Court can infer
that he actually struck Mr. Howard in the head on the right side, which is also corroborated by Mr.
Howard’s injuries.” Tr. at 26:15-22 (Oliveros). The Plaintiffs acknowledged that the lapel videos
do not depict clearly that Daffron struck Howard’s head, but asserted that this lack of clarity
justifies permitting the Plaintiffs to depose Daffron. See Tr. at 26:23-25 (Oliveros).
The Court turned its attention to the Plaintiffs’ discovery request. See Tr. at 28:11 (Court).
The Court indicated that it has had many cases before it in which the plaintiffs, facing motions for
summary judgment on qualified immunity, have “a whole lot less” evidence than the Plaintiffs
have. Tr. at 28:12-12 (Court). The Court opined that the “Defendants have been fairly generous
so far,” and that the Plaintiffs are perhaps “beginning to fish a little bit hoping something would
turn up.” Tr. at 28:19-23 (Court). The Plaintiffs disagreed that they have abundant evidence, but
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the Court countered that the parties have presented “a pretty robust record as far as these cases
go.” Tr. at 29:10-15 (Court). See id. at 29:4-5. The Plaintiffs argued that more discovery is
necessary, because the Franco Depo. yielded “a lot more information than was put in his report
and than was gleaned from the interviews.” Tr. at 29:11-14 (Oliveros). The Plaintiffs expressed
skepticism that the officers’ reports are reliable and noted that the lapel videos “are not covering
everything.” Tr. at 30:5-14 (Oliveros). The Plaintiffs accordingly requested limited discovery to
depose the other officers to develop a more accurate record. See Tr. at 30:24-31:1 (Oliveros).
Franco responded that, in his deposition, he said that he “delivered only one knee strike
and it was to the left shoulder.” Tr. at 31:14-15 (Martinez). Franco acknowledged that he indicated
in his reports that he delivered three strikes to Howard’s torso, but said that “was his initial
recollection,” but, “upon watching the video, he could see that he only delivered one knee strike.”
Tr. at 31:18-21 (Martinez). Franco also contended that “the physical evidence” corroborates his
testimony that he struck Howard once in his shoulder, because the post-incident photographs of
Howard do not show any injuries on the left side of his head, which is where Franco would have
struck Howard had he hit Howard’s head. Tr. at 32:6-10 (Martinez). The Court later asked Franco
how Howard injured his face if none of the officers struck him there, see Tr. at 37:1-2 (Court), and
Franco speculated that “those are contusion from just being face down on the pavement and
resisting,” Tr. at 37:3-5 (Martinez). Franco also asserted that Howard “did not request any medical
attention,” so “there is not physical evidence to corroborate the allegation that Officer Franco gave
him a knee strike to the head.” Tr. at 32:22-25 (Martinez).
At that point, the Court asked the Plaintiffs whether their allegation, in the Response, that
the Movants refused medical care to Howard is part of their excessive force claim, or whether the
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allegation is “just an interesting fact.” Tr. at 33:8-11 (Court). The Plaintiffs responded that,
although the Plaintiffs do not “expressly state a claim that [Howard] didn’t get medical care,” the
allegation “corroborates . . . that Mr. Howard was injured.” Tr. at 33:12-16 (Oliveros). The
Plaintiffs also assert that the Howard Aff. contradicts the officers’ assertion that Howard refused
medical care, and that this shows that the officers “were not forthright with the information
regarding the use of force that was administered to Mr. Howard.” Tr. at 33:23-34:4 (Oliveros).
Responding to the Plaintiffs’ arguments, the Movants asserted that it is irrelevant, for the
MSJ’s purposes, how many times Franco struck Howard, because “it is very clear that this entire
incident took place in three to four seconds.” Tr. at 38:19-23 (Roman). The Movants also
disagreed with the Plaintiffs’ contention that Howard did not threaten the officers, and argued
instead that the officers reasonably feared for their safety when they could not see or secure one
of Howard’s hands. See Tr. at 39:3-8 (Roman). The Movants asserted that the officers reasonably
feared that Howard was reaching for his waistband and that they “are simply not required to assume
that he has nothing that could harm them on his person that could be accessed through having his
hand under his body.” Tr. at 39:11-16 (Roman). The Movants analogized to Serrano v. United
States to argue that, when police secure one of a suspect’s hands but not the other, the police do
not have control over the suspect and are justified in taking measures to ensure safety. See Tr. at
39:21-25 (Roman). The Movants also agreed with Franco that Howard injured himself by resisting
facedown on the pavement and that the officers’ strikes did not injure him. See Tr. at 41:20-24
(Roman). The Movants argued that “[t]his man was running head long into a mattress, came down
hard on the pavement, and you’re going to have some strawberry burns and things like that, just
from asphalt contact.” Tr. at 42:1-4 (Roman).
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Finally, the Movants asked that the Court deny the Plaintiffs’ discovery request. See Tr.
at 41:1-2 (Roman). The Movants disagreed with the Plaintiffs’ assertion that inconsistency in the
Movants’ reporting justifies deposing them, because the Movants have provided interrogatory
responses that “are completely consistent with the report[s].” Tr. at 41:2-10 (Roman). Replying,
the Plaintiffs asserted that Daffron’s reports are inconsistent regarding the number of strikes he
used and where his strikes landed, but could not cite those inconsistencies specifically, and said
that they “might need to supplement.” Tr. at 44:3-4 (Oliveros). See id. at 43:16-44:3 (Oliveros).
The Plaintiffs averred that it is necessary to depose Chafin, Daffron, and Molina, because, “when
pressed, officers sometimes do change their stories,” and “it’s possible that when pressed, Officers
Chafin and Molina might also have more to add.” Tr. at 44:8-19 (Oliveros).
The Court then indicated that it was inclined to deny the Plaintiffs’ request for more
discovery, because the Plaintiffs have a relatively robust record. See Tr. at 47:1-4 (Court). The
Court said that its opinion could change if, as it writes the undisputed facts, it identifies something
necessary to resolve the issues. See Tr. at 47:7-10 (Court). The Court noted that the parties have
presented factual disputes, but told the parties that it would not identify materiality until it writes
this opinion. See Tr. at 47:21-25. The Court indicated, however, that it is inclined to grant the
MSJ, at least in part, because the law on which the Plaintiffs rely is not clearly established. See
Tr. at 48:6-10 (Court).
LAW REGARDING MOTIONS FOR SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall 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
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initial burden of ‘show[ing] that there is an absence of evidence to support the nonmoving party’s
case.’” Herrera v. Santa Fe Pub. Sch., 956 F. Supp. 2d 1191, 1221 (D.N.M. 2013)(Browning,
J.)(alteration in Herrera v. Santa Fe Pub. Sch.)(quoting Bacchus Indus., Inc. v. Arvin Indus., Inc.,
939 F.2d 887, 891 (10th Cir. 1991)). See Celotex Corp., 477 U.S. at 323.
Before the court can rule on a party’s motion for summary judgment, the moving
party must satisfy its burden of production in one of two ways: by putting evidence
into the record that affirmatively disproves an element of the nonmoving party’s
case, or by directing the court’s attention to the fact that the non-moving party lacks
evidence on an element of its claim, “since a complete failure of proof concerning
an essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.” Celotex, 477 U.S. at 323-25. On those issues for which it bears
the burden of proof at trial, the nonmovant “must go beyond the pleadings and
designate specific facts to make a showing sufficient to establish the existence of
an element essential to his case in order to survive summary judgment.” Cardoso
v. Calbone, 490 F.3d 1194, 1197 (10th Cir. 2007)(internal quotations and brackets
omitted).
Plustwik v. Voss of Nor. ASA, No. 2:11CV00757 DS, 2013 WL 1945082, at *1 (D. Utah May 9,
2013)(Sam, J.)(emphasis added). “If the moving party will bear the burden of persuasion at trial,
that party must support its motion with credible evidence -- using any of the materials specified in
Rule 56(c) -- that would entitle it to a directed verdict if not controverted at trial.” Celotex, 477
U.S. at 331 (Brennan, J., dissenting)(emphasis in original).41 Once the movant meets this burden,
rule 56 requires the nonmoving party to designate specific facts showing that there is a genuine
issue for trial. See Celotex, 477 U.S. at 324; Liberty Lobby., 477 U.S. at 256. In American
Mechanical Solutions, LLC v. Northland Piping, Inc., 184 F. Supp. 3d 1030 (D.N.M.
41
Although the Honorable William J. Brennan, Jr., then-Associate Justice of the Supreme
Court, dissented in Celotex, this sentence is widely understood to be an accurate statement of the
law. See 10A Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure § 2727,
at 470 (3d ed. 1998)(“Although the Court issued a five-to-four decision, the majority and dissent
both agreed as to how the summary-judgment burden of proof operates; they disagreed as to how
the standard was applied to the facts of the case.”).
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2016)(Browning, J.), the Court granted summary judgment for the defendant when the plaintiff
did not offer expert evidence supporting causation or proximate causation in its breach-of-contract
or breach-of-the-implied-warranty-of-merchantability claims. See 184 F. Supp. 3d at 1075-78.
The Court reasoned that the plaintiff could prove neither the breach-of-contract claim’s causation
requirement nor the breach-of-the-implied-warranty-of-merchantability claim’s proximatecausation requirement with mere common knowledge, and so New Mexico law required that the
plaintiff bolster its arguments with expert testimony, which the plaintiff had not provided. See
184 F. Supp. 3d at 1067, 1073, 1075, 1079. Without the requisite evidence, the plaintiff, the Court
determined, failed to prove “an essential element of the nonmoving party’s case,” rendering “all
other facts immaterial.” 184 F. Supp. 3d at 1075 (internal quotation marks omitted)(quoting
Plustwik v. Voss of Nor. ASA, 2013 WL 1945082, at *1). Thus, if a plaintiff has the burden of
proof, and the plaintiff has no competent evidence, the defendant may move, without any
competent evidence itself, past the plaintiff’s lack of competent evidence, and secure summary
judgment. See, e.g., Celotex, 477 U.S. at 323-25 (providing that summary judgment is proper
where a plaintiff lacks evidence on an essential element of its case); Am. Mech. Solutions, LLC v.
Northland Piping, Inc., 184 F. Supp. 3d at 1075 (granting summary judgment because plaintiff
lacked evidence on causation); Morales v. E.D. Entyre & Co., 382 F. Supp. 2d 1252, 1272 (D.N.M.
2005)(Browning, J.)(granting summary judgment because plaintiff lacked competent evidence that
defendants defectively manufactured an oil distributor). A conclusory assertion that the plaintiff
lacks evidence is insufficient, however, to secure summary judgment; the defendant must make
some evidentiary showing that the plaintiff lacks competent evidence. See Halley v. Huckaby,
902 F.3d 1136, 1143 (10th Cir. 2018)(stating that summary judgment may be warranted if the
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movant notes a lack of evidence for an essential element of the claim). See also 11 James Wm.
Moore et al., Moore’s Federal Practice § 56.40[1][b][iv], at 56-109 to -111 (3d ed. 2018).
The party opposing a motion for summary judgment must “set forth specific facts showing
that there is a genuine issue for trial as to those dispositive matters for which it carries the burden
of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.
1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993)(“However, the nonmoving
party may not rest on its pleadings but must set forth specific facts showing that there is a genuine
issue for trial as to those dispositive matters for which it carries the burden of proof.” (internal
quotation marks omitted)). Rule 56(c)(1) provides: “A party asserting that a fact . . . is genuinely
disputed must support the assertion by . . . citing to particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials . . . .” Fed. R. Civ. P. 56(c)(1)(A). It is not enough for the party
opposing a properly supported motion for summary judgment to “rest on mere allegations or
denials of his pleadings.” Liberty Lobby, 477 U.S. at 259. See Abercrombie v. City of Catoosa,
896 F.2d 1228, 1231 (10th Cir. 1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.
1980)(“[O]nce a properly supported summary judgment motion is made, the opposing party may
not rest on the allegations contained in his complaint, but must respond with specific facts showing
the existence of a genuine factual issue to be tried.” (citation and internal quotation marks
omitted)).
Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations
unsupported by specific facts, or speculation.” Colony Nat’l Ins. v. Omer, No. 07-2123-JAR, 2008
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WL 2309005, at *1 (D. Kan. June 2, 2008)(Robinson, J.)(citing Fed. R. Civ. P. 56(e); Argo v. Blue
Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006)(McConnell, J.)). “In
responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on
speculation, or on suspicion and may not escape summary judgment in the mere hope that
something will turn up at trial.’” Colony Nat’l Ins. v. Omer, 2008 WL 2309005, at *1 (quoting
Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)).
To deny a motion for summary judgment, genuine factual issues must exist that “can be
resolved only by a finder of fact because they may reasonably be resolved in favor of either party.”
Liberty Lobby, 477 U.S. at 250. A mere “scintilla” of evidence will not avoid summary judgment.
Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Liberty Lobby, 477 U.S. at 248). Rather, there
must be sufficient evidence on which the fact finder could reasonably find for the nonmoving
party. See Liberty Lobby, 477 U.S. at 251 (quoting Schuylkill & Dauphin Improvement Co. v.
Munson, 81 U.S. (14 Wall.) 442, 448 (1871)(“Schuylkill”)); Vitkus v. Beatrice Co., 11 F.3d at
1539. “[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party. If the evidence is merely colorable or is not
significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249
(citations omitted). Where a rational trier of fact, considering the record as a whole, cannot find
for the nonmoving party, “there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. at 587 (quoting First Nat’l Bank of Ariz. v. Cities Service Co., 391
U.S. 253, 289 (1968)).
When reviewing a motion for summary judgment, the court should keep in mind certain
principles. First, the court’s role is not to weigh the evidence, but to assess the threshold issue
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whether a genuine issue exists as to material facts requiring a trial. See Liberty Lobby, 477 U.S.
at 249. Second, the ultimate standard of proof is relevant for purposes of ruling on a summary
judgment, such that, when ruling on a summary judgment motion, the court must “bear in mind
the actual quantum and quality of proof necessary to support liability.” Liberty Lobby, 477 U.S.
at 254. Third, the court must resolve all reasonable inferences and doubts in the nonmoving party’s
favor, and construe all evidence in the light most favorable to the nonmoving party. See Hunt v.
Cromartie, 526 U.S. 541, 550-55 (1999); Liberty Lobby, 477 U.S. at 255 (“The evidence of the
non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” (citation
omitted)). Fourth, the court cannot decide any issues of credibility. See Liberty Lobby, 477 U.S.
at 255.
There are, however, limited circumstances in which the court may disregard a party’s
version of the facts. This doctrine developed most robustly in the qualified immunity arena. In
Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court concluded that summary judgment is
appropriate where video evidence quite clearly contradicted the plaintiff’s version of the facts. See
550 U.S. at 378-81. The Supreme Court explained:
At the summary judgment stage, facts must be viewed in the light most
favorable to the nonmoving party only if there is a “genuine” dispute as to those
facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving
party has carried its burden under Rule 56(c), its opponent must do more than
simply show that there is some metaphysical doubt as to the material facts . . . .
Where the record taken as a whole could not lead a rational trier of fact to find for
the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec.
Industrial Co. v. Zenith Radio Corp., 475 U.S. [at] 586-587 . . . (footnote omitted).
“[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Anderson v. Liberty
Lobby, Inc., 477 U.S. [at] 247-248 . . . . When opposing parties tell two different
stories, one of which is blatantly contradicted by the record, so that no reasonable
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jury could believe it, a court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.
That was the case here with regard to the factual issue whether respondent
was driving in such fashion as to endanger human life. Respondent’s version of
events is so utterly discredited by the record that no reasonable jury could have
believed him. The Court of Appeals should not have relied on such visible fiction;
it should have viewed the facts in the light depicted by the videotape.
Scott v. Harris, 550 U.S. at 380-81 (alterations in Scott v. Harris)(emphasis in Liberty Lobby).
The Tenth Circuit applied this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304
(10th Cir. 2009), and explained:
[B]ecause at summary judgment we are beyond the pleading phase of the litigation,
a plaintiff’s version of the facts must find support in the record: more specifically,
“[a]s with any motion for summary judgment, ‘[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[.]’” York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008)(quoting
Scott, 550 U.S. at 380); see also Estate of Larsen ex rel. Sturdivan v. Murr, 511
F.3d 1255, 1258 (10th Cir. 2008).
Thomson v. Salt Lake Cty., 584 F.3d at 1312 (second alteration in Thomson v. Salt Lake Cty.,
third and fourth alterations in York v. City of Las Cruces). “The Tenth Circuit, in Rhoads v. Miller,
[352 F. App’x 289 (10th Cir. 2009)(Tymkovich, J.)(unpublished),] explained that the blatant
contradictions of the record must be supported by more than other witnesses’ testimony[.]” Lymon
v. Aramark Corp., 728 F. Supp. 2d at 1249.
LAW REGARDING RULE 56(d)
Rule 56(d) of the Federal Rules of Civil Procedure states:
(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by
affidavit or declaration that, for specified reasons, it cannot present facts essential
to justify its opposition, the court may:
(1) defer considering the motion or deny it;
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(2) allow time to obtain affidavits or declarations or to take
discovery; or
(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d). The Tenth Circuit reviews a district court’s denial of a rule 56(d) motion
for abuse of discretion. See Comm. for First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th
Cir. 1992). “A prerequisite to granting relief . . . is an affidavit furnished by the nonmovant.”
Comm. for First Amendment v. Campbell, 962 F.2d at 1522 (citing Pasternak v. Lear Petroleum
Exploration, Inc., 790 F.2d 828, 832 (10th Cir. 1986)). “Unless dilatory or lacking in merit,” a
party’s rule 56(d) application “should be liberally treated.” Jensen v. Redevelopment Agency of
Sandy City, 998 F.2d at 1553-54 (internal quotation marks omitted). “The general principle of
Rule 56(f) is that summary judgment should be refused where the nonmoving party has not had
the opportunity to discover information that is essential to his opposition.” Price v. W. Res., Inc.,
232 F.3d 779, 783 (10th Cir. 2000)(internal quotation marks omitted). “Rule 56(f) does not
require, however, that summary judgment not be entered until discovery is complete.” Trujillo v.
Bd. of Educ. of the Albuquerque Pub. Schs., Nos. 02-1146, 03-1185, 2007 WL 2461629, at *3
(D.N.M. June 5, 2007)(Browning, J.)(citing Price v. W. Res., Inc., 232 F.3d at 784).
To invoke the shelter that rule 56(d) provides, a party must: (i) file an affidavit, see
Pasternak v. Lear Petroleum Exploration Inc., 790 F.2d at 832-33; (ii) identify the probable facts
not available, their relevance, and what steps have been taken to obtain those facts, see Comm. for
the First Amendment v. Campbell, 962 F.2d at 1522; (iii) explain why facts precluding summary
judgment cannot be presented, see Comm. for the First Amendment v. Campbell, 962 F.2d at 1522;
and (iv) state with specificity how the desired time would enable the nonmoving party to meet its
burden in opposing summary judgment, see Comm. for the First Amendment v. Campbell, 962
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F.2d at 1522. “Rule 56([d]) may not be invoked based solely upon the assertion that discovery is
incomplete or that the specific facts necessary to oppose summary judgment are unavailable.”
Schaefer v. Antill, No. 06-0460, 2007 WL 709046, at *9 (D.N.M. Jan. 31, 2007)(Browning, J.).
“Rule 56 ( [d] ) is not a license for a fishing expedition.” Lewis v. City of Ft. Collins, 903 F.2d
752, 759 (10th Cir. 1990).
LAW REGARDING QUALIFIED IMMUNITY
Qualified immunity recognizes the “need to protect officials who are required to exercise
their discretion and the related public interest in encouraging the vigorous exercise of official
authority.” Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). “Qualified immunity protects federal
and state officials from liability for discretionary functions, and from ‘the unwarranted demands
customarily imposed upon those defending a long drawn-out lawsuit.’” Roybal v. City of
Albuquerque, No. CIV 08-0181 JB/LFG, 2009 WL 1329834, at *10 (D.N.M. April 28,
2009)(Browning, J.)(quoting Siegert v. Gilley, 500 U.S. 226, 232 (1991)). Under § 1983, a
plaintiff may seek money damages from government officials who have violated his or her
constitutional or statutory rights. To ensure, however, that fear of liability will not “unduly inhibit
officials in the discharge of their duties,” Anderson v. Creighton, 483 U.S. 635 (1987), the officials
may claim qualified immunity; so long as they have not violated a “clearly established” right, the
officials are shielded from personal liability, Harlow v. Fitzgerald, 457 U.S. at 818.
That means a court can often avoid ruling on the plaintiff’s claim that a particular
right exists. If prior case law has not clearly settled the right, and so given officials
fair notice of it, the court can simply dismiss the claim for money damages. The
court need never decide whether the plaintiff’s claim, even though novel or
otherwise unsettled, in fact has merit.
Camreta v. Greene, 563 U.S. 692, 705 (2011).
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Qualified immunity shields government officials from liability where “‘their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable person would
have known.’” Pearson v. Callahan, 555 U.S. at 231 (quoting Harlow v. Fitzgerald, 457 U.S. at
818). Qualified immunity also shields officers who have “reasonable, but mistaken beliefs,” and
operates to protect officers from the sometimes “hazy border[s]” of the law. Saucier v. Katz, 533
U.S. at 205. When a defendant asserts qualified immunity, the plaintiff must demonstrate: (i) that
the defendant’s actions violated his or her constitutional or statutory rights; and (ii) that the right
was clearly established at the time of the alleged misconduct. See Riggins v. Goodman, 572 F.3d
1101, 1107 (10th Cir. 2009); Pueblo of Pojoaque v. New Mexico, 214 F. Supp. 3d 1028, 1079
(D.N.M. 2016)(Browning, J.).
1.
Procedural Approach to Qualified Immunity.
The Supreme Court recently revisited the proper procedure for lower courts to evaluate a
qualified immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts
“should be permitted to exercise their sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in light of the circumstances of the particular
case at hand.” 555 U.S. at 236. The Supreme Court also noted that, while no longer mandatory,
Saucier v. Katz’ protocol -- by which a court first decides if the defendant’s actions violated the
Constitution, and then the court determines if the right violated was clearly established -- will often
be beneficial. See Pearson v. Callahan, 555 U.S. at 241. In rejecting the prior mandatory approach,
the Supreme Court recognizes that “[t]here are cases in which it is plain that a constitutional right
is not clearly established but far from obvious whether in fact there is such a right,” and that such
an approach burdens district courts and Courts of Appeals with “what may seem to be an
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essentially academic exercise.” 555 U.S. at 237. The Supreme Court also recognizes that the prior
mandatory approach “departs from the general rule of constitutional avoidance and runs counter
to the older, wiser judicial counsel not to pass on questions of constitutionality unless such
adjudication is unavoidable.” 555 U.S. at 241 (alterations omitted). See Reichle v. Howards, 566
U.S. 658, 664 (2012)(affirming Pearson v. Callahan’s procedure and noting that deciding qualified
immunity issues on the basis of a right being not “clearly established” by prior caselaw “comports
with our usual reluctance to decide constitutional questions unnecessarily”).
The Supreme Court recognizes seven circumstances where district courts “should address
only”42 the clearly established prong of the qualified immunity analysis: when (i) the first,
constitutional violation question “is so factbound that the decision provides little guidance for
future cases”; (ii) “it appears that the question will soon be decided by a higher court”;
(iii) deciding the constitutional question requires “an uncertain interpretation of state law”;
(iv) “qualified immunity is asserted at the pleading stage,” and “the precise factual basis for the
. . . claim . . . may be hard to identify”; (v) tackling the first element “may create a risk of bad
decisionmaking,” because of inadequate briefing; (vi) discussing both elements risks “bad
In Camreta v. Greene, the Supreme Court, somewhat confusingly, states that there are
seven circumstances in which the district courts “should address only” the clearly established
prong, but, in the same sentence, notes that deciding the violation prong is left “to the discretion
of the lower courts.” Camreta v. Greene, 563 U.S. at 707. In Kerns v. Bader, 663 F.3d 1173 (10th
Cir. 2011), the Tenth Circuit interpreted Camreta v. Greene to mean that district courts are
restricted from considering the violation prong in seven particular circumstances. See Kerns v.
Bader, 663 F.3d at 1180-81. The Supreme Court, however, has not stressed the seven
circumstances as mandatory. Instead, it has recently reaffirmed only that lower courts “should
think hard, and then think hard again before addressing both qualified immunity and the merits of
an underlying constitutional claim.” District of Columbia v. Wesby, 138 S. Ct. 577, 589 n.7
(2018). This language suggests that the inquiry is still discretionary, although the Court’s
discretion should be exercised carefully.
42
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decisionmaking,” because the court is firmly convinced that the law is not clearly established and
is thus inclined to give little thought to the existence of the constitutional right; or (vii) the doctrine
of “constitutional avoidance” suggests the wisdom of passing on the first constitutional question
when “ ‘it is plain that a constitutional right is not clearly established but far from obvious whether
in fact there is such a right.’” Kerns v. Bader, 663 F.3d at 1180-81 (quoting Pearson v. Callahan,
555 U.S. at 236-42). Regarding the last of these seven circumstances, the Supreme Court has
clarified that courts may “avoid avoidance” and address the first prong before the second prong in
cases involving a recurring fact pattern, where guidance on the constitutionality of the challenged
conduct is necessary, and the conduct is likely to face challenges only in the qualified immunity
context. Camreta v. Greene, 563 U.S. at 706-07. See Kerns v. Bader, 663 F.3d at 1181.43 “Courts
In Kerns v. Bader, the Tenth Circuit reversed the Court’s decision that an officer was not
entitled to qualified immunity, noting that the Court “analyzed both aspects of the qualified
immunity test before agreeing” with the plaintiff that the qualified immunity defense did not
protect the officer. 663 F.3d at 1183. In reversing, the Tenth Circuit stated:
43
Because we agree with Sheriff White on the latter (clearly established law)
question, we reverse without addressing the former (constitutional violation)
question. And we pursue this course because doing so allows us to avoid rendering
a decision on important and contentious questions of constitutional law with the
attendant needless (entirely avoidable) risk of reaching an improvident decision on
these vital questions.
663 F.3d at 1183-84. See Sanchez v. Labate, 564 F. App’x 371, 372 (10th Cir.
2014)(unpublished)(“If dispositive of the claim, we ordinarily need address only the second
element of qualified immunity, that is, whether the law supporting a constitutional violation was
clearly established.” (citing Kerns v. Bader, 663 F.3d at 1180)). The Tenth Circuit did not analyze
whether the officer violated the plaintiff’s constitutional rights and stated that guidance on the
particular constitutional issue would be more appropriate in a case not involving qualified
immunity: “Neither do we doubt that the scope of the Constitution’s protection for a patient’s
hospital records can be adequately decided in future cases where the qualified immunity overlay
isn’t in play (e.g., through motions to suppress wrongly seized records or claims for injunctive or
declaratory relief).” 663 F.3d at 1187 n.5.
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The Tenth Circuit does not always undertake the qualified immunity analysis before the
constitutional violation analysis. See, e.g., Savage v. Troutt, 774 F. App’x 574, 579 (10th Cir.
2019)(unpublished); Rudnick v. Raemisch, 774 F. App’x 446, 449 (10th Cir. 2019)(unpublished);
Serrano v. United States, 766 F. App’x at 565. Since Kerns v. Bader, the Tenth Circuit has
commented:
Although it is within the court’s sound discretion to determine which of the
two elements to address first, Pearson, 555 U.S. at 236 . . . , “the Supreme Court
has recently instructed that courts should proceed directly to, ‘should address only,’
and should deny relief exclusively based on the second element” in certain
circumstances, Kerns, 663 F.3d at 1180 (quoting Camreta v. Greene, 563 U.S. [at]
707 . . . .)).
Serrano v. United States, 766 F. App’x at 565. In Serrano v. United States, the Tenth Circuit stated
that the district court addressed only the constitutional violation prong after concluding that
Serrano had not establish a constitutional violation and approved the district court’s analysis,
because the district court “also had to consider the reasonableness of the team’s use of force for
purposes of Serrano’s [Federal Tort Claim Act, 28 U.S.C. §§ 1291, 1346, 1402, 2401-02, 241112, 2671-60,] claims.” Serrano v. United States, 766 F. App’x at 565.
The Court believes, as a general rule, that the constitutional violation analysis should
receive more attention. On remand from Kerns v. Bader, the Court stated:
While the Court must faithfully follow the Tenth Circuit’s decisions and opinions,
the Court is troubled by [the Tenth Circuit’s] statement and the recent trend of the
Supreme Court’s hesitancy in § 1983 actions to address constitutional violations.
A Reconstruction Congress, after the Civil War, passed § 1983 to provide a civil
remedy for constitutional violations. See Mitchum v. Foster, 407 U.S. 225, 238-39
(1972). In Mitchum v. Foster, the Supreme Court explained:
Section 1983 was originally § 1 of the Civil Rights Act of 1871 . . .
and was enacted for the express purpose of “enforc(ing) the
Provisions of the Fourteenth Amendment.” The predecessor of
§ 1983 was thus an important part of the basic alteration in our
federal system wrought in the Reconstruction era through federal
legislation and constitutional amendment.
407 U.S. at 238-39. Congress did not say it would remedy only violations of
“clearly established” law, but that
[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the District
of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
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Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress, except
that in any action brought against a judicial officer for an act or
omission taken in such officer’s judicial capacity, injunctive relief
shall not be granted unless a declaratory decree was violated or
declaratory relief was unavailable.
42 U.S.C. § 1983. The Supreme Court established the qualified immunity defense
in Pierson v. Ray, 386 U.S. 547 (1967), and held that officials were not liable for
constitutional violations where they reasonably believed that their conduct was
constitutional. See E. Clarke, Safford Unified Sch. Dist. No. 1 v. Redding: Why
Qualified Immunity is a Poor Fit in Fourth Amendment School Search Cases, 24
B.Y.U. J. Pub. L. 313, 329 (2010). The Supreme Court first introduced the “clearly
established” prong in reference to an officer’s good faith and held that a
compensatory award would only be appropriate if an officer “acted with such an
impermissible motivation or with such disregard of the [individual’s] clearly
established constitutional rights that his action cannot reasonably be characterized
as being in good faith.” Wood v. Strickland, 420 U.S. 308, 322 (1975). In Harlow
v. Fitzgerald, when the Supreme Court moved to an objective test, the clearly
established prong became a part of the qualified immunity test. See 457 U.S. at
818 (“We therefore hold that government officials performing discretionary
functions generally are shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights.”). It
seems ironic that the federal courts would restrict a congressionally mandated
remedy for constitutional violations -- presumably the rights of innocent people -and discourage case law development on the civil side -- and restrict case law
development to motions to suppress, which reward only the guilty and is a judicially
created, rather than legislatively created, remedy. Commentators have noted that,
“[o]ver the past three decades, the Supreme Court has drastically limited the
availability of remedies for constitutional violations in” exclusionary rule litigation
in a criminal case, habeas corpus challenges, and civil litigation under § 1983.
J. Marceau, The Fourth Amendment at a Three-Way Stop, 62 Ala. L. Rev. 687, 687
(2011). Some commentators have also encouraged the courts to drop the
suppression remedy and the legislature to provide more -- not less -- civil remedies
for constitutional violations. See Christopher Slobogin, Why Liberals Should
Chuck the Exclusionary Rule, 1999 U. Ill. L. Rev. 363, 390-91 (1999)(“Behavioral
theory suggests that the exclusionary rule is not very effective in scaring police into
behaving . . . . These theories also suggest that a judicially administered damages
regime . . . would fare significantly better at changing behavior at an officer level.”);
Hon. Malcolm R. Wilkey, Constitutional Alternatives to the Exclusionary Rule, 23
S. Tex. L.J. 531, 539 (1982)(criticizing the exclusionary rule and recommending
alternatives). In Hudson v. Michigan, 547 U.S. 586 (2006), the Supreme Court
noted that civil remedies were a viable alternative to a motion to suppress when it
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should think carefully before expending ‘scarce judicial resources’ to resolve difficult and novel
questions of constitutional or statutory interpretation that will ‘have no effect on the outcome of
the case.’” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)(quoting Pearson v. Callahan, 555 U.S.
at 236-37).44 See Camreta v. Greene, 563 U.S. at 707 (“In general, courts should think hard, and
held that the exclusionary rule was inapplicable to cases in which police officers
violate the Fourth Amendment when they fail to knock and announce their presence
before entering. See 547 U.S. at 596-97. Rather than being a poor or discouraged
means of developing constitutional law, § 1983 seems the better and preferable
alternative to a motion to suppress. It is interesting that the current Supreme Court
and Tenth Circuit appear more willing to suppress evidence and let criminal
defendants go free, than have police pay damages for violations of innocent
citizens’ civil rights. It is odd that the Supreme Court has not adopted a clearly
established prong for suppression claims; it seems strange to punish society for
police violating unclear law in criminal cases, but protect municipalities from
damages in § 1983 cases.
Kerns v. Bd. of Comm’rs, 888 F. Supp. 2d 1176, 1224 n.36 (D.N.M. 2012)(Browning, J.),
abrogated on other grounds as recognized by Ysasi v. Brown, 3 F. Supp. 3d 1088, 1130-31 n.24
(D.N.M. 2014)(Browning, J.). See Richard E. Myers, Fourth Amendment Small Claims Court, 10
Ohio St. J. Crim. L. 571, 590-97 (2013)(arguing that municipalities should establish small-claims
courts to adjudicate police officers’ Fourth Amendment violations and award monetary
judgments). Since Kerns v. Board of Commissioners, the Court has also observed:
The unfortunate result of Kerns v. Bader is that nuanced factual distinctions
can create a near-insurmountable hurdle for plaintiffs attempting to overcome a
qualified immunity defense without a precisely analogous precedent.
A secondary consequence of Kerns v. Bader is that constitutional
protections are unlikely to develop in the Tenth Circuit beyond where they stood at
the time the case was decided.
A.M. ex rel. Youngers v. N.M. Dep’t of Health, 108 F. Supp. 3d 963, 1029 (D.N.M.
2015)(Browning, J.).
The appellate courts have little appreciation for how hard it is to do a clearly established
prong review first without looking -- closely and thoroughly -- at whether there is a constitutional
right and whether there is a violation. It is difficult to review the facts, rights, and alleged
violations in the comparative cases without looking at the facts, rights, and alleged violations on
the merits in the case before the Court. Pearson v. Callahan sounds like a good idea in theory, but
44
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then think hard again, before turning small cases into large ones.”). The Tenth Circuit will remand
a case to the district court for further consideration when the district court has given only cursory
treatment to qualified immunity’s clearly established prong. See Kerns v. Bader, 663 F.3d at 1182;
Pueblo of Pojoaque v. New Mexico, 214 F. Supp. 3d at 1082-83.
2.
Clearly Established Rights.
To determine whether a right was clearly established, a court must consider whether the
right was sufficiently clear that a reasonable government employee would understand that what he
or she did violated a right. See Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327
(10th Cir. 2007). “A clearly established right is generally defined as a right so thoroughly
developed and consistently recognized under the law of the jurisdiction as to be ‘indisputable’ and
‘unquestioned.’”
Lobozzo v. Colo. Dep’t of Corr., 429 F. App’x 707, 710 (10th Cir.
2011)(unpublished)45(quoting Zweibon v. Mitchell, 720 F.2d 162, 172-73 (D.C. Cir. 1983)).
it does not work well in practice. The clearly established prong is a comparison between the case
before the Court and previous cases, and Pearson v. Callahan suggests that the Court can compare
before the Court fully understands what it is comparing. In practice, Saucier v. Katz works better.
Lobozzo v. Colo. Dep’t of Correction, is an unpublished opinion, but the Court can rely
on an unpublished opinion to the extent its reasoned analysis is persuasive in the case before it.
See 10th Cir. R. 32.1(A), 28 U.S.C. (“Unpublished opinions are not precedential, but may be cited
for their persuasive value”). The Tenth Circuit has stated: “In this circuit, unpublished orders are
not binding precedent, ... and ... citation to unpublished opinions is not favored.... However, if an
unpublished opinion ... has persuasive value with respect to a material issue in a case and would
assist the court in its disposition, we allow a citation to that decision.” United States v. Austin. 426
F.3d 1266, 1274 (10th Cir.2005). The Court finds that Serrano v. United States, 776 F. App’x 561,
569 (10th Cir. 2019)(unpublished); Rudnick v. Raemisch, 774 F. App’x 446, 449 (10th Cir.
2019)(unpublished) Savage v. Troutt, 774 F. App’x 574, 579 (10th Cir. 2019)(unpublished);
Choate v. Huff, 773 F. App’x 484, 487-88, at *2 (10th Cir. 2019)(unpublished); Perry v.
Durborow, 892 F.3d 1116, 1123-27 (10th Cir. 2018); Rife v. Jefferson, 742 F. App’x 377, 381-88
(10th Cir. 2018)(unpublished); Malone v. Bd. of Cty. Comm’rs for Cty. of Dona Ana, 707 F. App’x
552, 555-56 (10th Cir. 2017)(unpublished); Youbyoung Park v. Gaitan, 680 F. App’x 724, 73940 (10th Cir. 2017)(unpublished); Brown v. City of Colo. Springs, 709 F. App’x 906, 915 (10th
45
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“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.” Currier v. Doran, 242 F.3d at 923. “In
determining whether the right was ‘clearly established,’ the court assesses the objective legal
reasonableness of the action at the time of the alleged violation and asks whether ‘the contours of
the right [were] sufficiently clear that a reasonable official would understand that what he is doing
violates that right.’” Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir.
2001)(alteration in original)(quoting Saucier v. Katz, 533 U.S. at 202). The Supreme Court has
clarified that qualified immunity’s clearly established prong is a very high burden for the plaintiff:
“A Government official’s conduct violates clearly established law when, at the time of the
challenged conduct, the contours of a right are sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. at
741. “In other words, ‘existing precedent must have placed the statutory or constitutional question
beyond debate.’” Reichle v. Howards, 566 U.S. at 664 (quoting Ashcroft v. al-Kidd, 563 U.S. at
741). “[Q]ualified immunity protects ‘all but the plainly incompetent or those who knowingly
violate the law.’” Mullenix v. Luna, 136 S. Ct. at 308 (quoting Malley v. Briggs, 475 U.S. at 341).
“The operation of this standard, however, depends substantially upon the level of
generality at which the relevant ‘legal rule’ is to be identified.” Anderson v. Creighton, 483 U.S.
Cir. 2017)(unpublished); Sanchez v. Labate, 564 F. App’x 371, 372 (10th Cir. 2014)(unpublished)
Wilson v. City of Lafayette, 510 F. App’x 775, 778 (10th Cir. 2013)(unpublished); Yadon v.
Hilton, 516 F. App’x 694, 695 (10th Cir. 2013)(unpublished); Lobozzo v. Colo. Dep’t of Corr.,
429 F. App’x 707, 710 (10th Cir. 2011)(unpublished); Wallin v. Dycus, 381 F. App’x 819, 82324 (10th Cir. 2010)(unpublished); and Hall v. Burke, 12 F. App’x 856, 861 (10th Cir.
2001)(unpublished), have persuasive value with respect to a material issue, and will assist the
Court in its disposition of this Memorandum Opinion and Order.
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at 639. The Supreme Court has stated: “[T]he clearly established right must be defined with
specificity.” City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019). “The general proposition,
for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help
in determining whether the violative nature of particular conduct is clearly established.” Ashcroft
v. al-Kidd, 563 U.S. at 742. “[T]the clearly established law must[, rather,] be ‘particularized’ to
the facts of the case,” White v. Pauly, 137 S. Ct. 548, 552 (2017)(quoting Anderson v. Creighton,
483 U.S. at 640); under this view of the clearly established prong, a court should inquire whether
clearly established law makes improper the actions that the officer took in the case’s
circumstances, see City of Escondido v. Emmons, 139 S. Ct. at 503 (directing the Court of Appeals
to ask, in excessive force cases, “whether clearly established law prohibited the officers from
stopping and taking down a man in these circumstances”). See Ziglar v. Abbasi, 137 S. Ct. 1843,
1866 (2017)(“[T]he dispositive question is ‘whether the violative nature of particular conduct is
clearly established.’” (quoting Mullenix v. Luna, 136 S. Ct. at 308)); District of Columbia v.
Wesby, 138 S. Ct. 577, 591 (2018)(“Tellingly, neither the panel majority nor the partygoers have
identified a single precedent -- much less a controlling case or robust consensus of cases -- finding
a Fourth Amendment violation under similar circumstances.”).
The Tenth Circuit has, however, emphasized the Supreme Court’s statements that, in some
situations, “clearly established general rules of law can provide notice of the unlawfulness of an
official’s conduct in appropriate circumstances.” A.N. by & through Ponder v. Syling, 928 F.3d
1191, 1198 (10th Cir. 2019). The Tenth Circuit has commented: “‘[G]eneral statements of the law
are not inherently incapable of giving fair and clear warning to officers’ that their conduct violates
a constitutional right, and that such statements provide the required notice when ‘the unlawfulness’
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of their conduct is ‘apparent’ from the pre-existing law.” A.N. by & through Ponder v. Syling,
928 F.3d at 1198 (quoting White v. Pauly, 137 S. Ct. at 552). According to the Tenth Circuit, “In
other words, ‘[g]eneral statements of the law can clearly establish a right for qualified immunity
purposes if they apply with obvious clarity to the specific conduct in question.’ And this is so
‘even though the very action in question has not previously been held unlawful.’” A.N. by &
through Ponder v. Syling, 928 F.3d at 1198 (first quoting Halley v. Huckaby, 902 F.3d 1136, 1149
(10th Cir. 2018), and then quoting Hope v. Pelzer, 536 U.S. 730 (2002)). The Tenth Circuit has
cautioned that such an approach is inappropriate where a case involves “relevant ambiguities.”
Colbruno v. Kessler, 928 F.3d 1155, 1165 (10th Cir. 2019)(citing Aldaba v. Pickens, 844 F.3d
870, 879 (10th Cir. 2016)(“Aldaba II”); Wilson v. City of Lafayette, 510 F. App’x 775, 778 (10th
Cir. 2013)(unpublished); Thomson v. Salt Lake Cty., 584 F.3d at 1315-17).
Although the Tenth Circuit has recognized a sliding scale for qualified immunity’s clearly
established inquiry, see Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007)(“We
have therefore adopted a sliding scale to determine when law is clearly established.”), the Tenth
Circuit may have since walked back its holding that a sliding-scale is the appropriate analysis, see
Aldaba v. Pickens, 844 F.3d at 876. In Aldaba II, the Tenth Circuit reconsidered its ruling from
Aldaba v. Pickens, 777 F.3d 1148 (10th Cir. 2015)(“Aldaba I”), that officers were entitled to
qualified immunity after the Supreme Court vacated its decision in light of Mullenix v. Luna. In
concluding that it had previously erred in Aldaba I, the Tenth Circuit determined:
We erred . . . by relying on excessive-force cases markedly different from
this one. Although we cited Graham v. Connor, 490 U.S. 386 (1989) to lead off
our clearly-established-law discussion, we did not just repeat its general rule and
conclude that the officers’ conduct had violated it. Instead, we turned to our
circuit’s sliding-scale approach measuring degrees of egregiousness in affirming
the denial of qualified immunity. We also relied on several cases resolving
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excessive-force claims. But none of those cases remotely involved a situation as
here.
Aldaba II, 844 F.3d at 876. The Tenth Circuit further noted that its sliding-scale approach may
have fallen out of favor, because the sliding-scale test relies, in part, on Hope v. Pelzer, 536 U.S.
at 739-41, and the Supreme Court’s most recent qualified immunity decisions do not invoke that
case. See Aldaba II, 844 F.3d at 874 n.1. See also Lowe v. Raemisch, 864 F.3d 1205, 1211 n.10
(10th Cir. 2017). The Tenth Circuit explained:
To show clearly established law, the Hope Court did not require earlier cases with
“fundamentally similar” facts, noting that “officials can still be on notice that their
conduct violates established law even in novel factual circumstances.” Id. at 741
. . . . This calls to mind our sliding-scale approach measuring the egregiousness of
conduct. See Morris v. Noe, 672 F.3d 1185, 1196 (10th Cir. 2012). But the
Supreme Court has vacated our opinion here and remanded for us to reconsider our
opinion in view of Mullenix, which reversed the [United States Court of Appeals
for the] Fifth Circuit after finding that the cases it relied on were “simply too
factually distinct to speak clearly to the specific circumstances here.” 136 S. Ct.
at 312. We also note that the majority opinion in Mullenix does not cite Hope v.
Pelzer . . . . As can happen over time, the Supreme Court might be emphasizing
different portions of its earlier decisions.
Aldaba II, 844 F.3d at 874 n.1. Since Aldaba II, the Supreme Court has reversed, per curiam,
another Tenth Circuit qualified immunity decision. See White v. Pauly, 137 S. Ct. at 551. In
White v. Pauly, the Supreme Court explained: “The panel majority misunderstood the ‘clearly
established’ analysis: It failed to identify a case where an officer acting under similar
circumstances as Officer White was held to have violated the Fourth Amendment.” White v.
Pauly, 137 S. Ct. at 552.46 The Supreme Court’s per curiam reversals appear to have the Tenth
The Supreme Court signals to the lower courts that a factually identical or a highly similar
factual case is required for the law to be clearly established, and the Tenth Circuit is now sending
those signals to the district courts. See Malone v. Bd. of Cty. Comm’rs for Cty. of Dona Ana, 707
F. App’x 552, 556 (10th Cir. Sept. 8, 2017)(unpublished)(reversing the Court’s judgment that the
case should proceed where a deceased plaintiff was backing away from the police and was not
46
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raising his gun when shot, because “the parties do not cite, nor could we find, any Supreme Court
or Tenth Circuit case that is sufficiently close factually to the circumstances presented here to
establish clearly the Fourth Amendment law that applies”). Factually identical or highly similar
factual cases are not, however, the way the real world works. Cases differ. Many cases have so
many facts that are unlikely to ever occur again in a significantly similar way. See York v. City
of Las Cruces, 523 F.3d 1205, 1212 (10th Cir. 2008)(“However, [the clearly established prong]
does not mean that there must be a published case involving identical facts; otherwise we would
be required to find qualified immunity wherever we have a new fact pattern.”). The Supreme
Court’s view of the clearly established prong assumes that officers are routinely reading Supreme
Court and Tenth Circuit opinions in their spare time, carefully comparing the facts in these
qualified immunity cases with the circumstances they confront in their day-to-day police work. It
is hard enough for the federal judiciary to embark on such an exercise, let alone likely that police
officers are endeavoring to parse opinions. It is far more likely that, in their training and continuing
education, police officers are taught general principles, and, in the intense atmosphere of an arrest,
police officers rely on these general principles, rather than engaging in a detailed comparison of
their situation with a previous Supreme Court or published Tenth Circuit case. It strains credulity
to believe that a reasonable officer, as he is approaching a suspect to arrest, is thinking to himself:
“Are the facts here anything like the facts in York v. City of Las Cruces?” Thus, when the Supreme
Court grounds its clearly-established jurisprudence in the language of what a reasonable officer or
a “reasonable official” would know, Kisela v. Hughes, 138 S. Ct. at 1153, yet still requires a
highly factually analogous case, it has either lost sight of reasonable officer’s experience or it is
using that language to mask an intent to create “an absolute shield for law enforcement officers,”
Kisela v. Hughes, 138 S. Ct. at 1162 (Sotomayor, J. dissenting). The Court concludes that the
Supreme Court is doing the latter, crafting its recent qualified immunity jurisprudence to
effectively eliminate § 1983 claims against state actors in their individual capacities by requiring
an indistinguishable case and by encouraging courts to go straight to the clearly established prong.
See Saenz v. Lovington Mun. Sch. Dist., 105 F. Supp. 3d 1271, 1297 n.4 (D.N.M.
2015)(Browning, J.).
The Court disagrees with the Supreme Court’s approach. The most conservative,
principled decision is to minimize the expansion of the judicially created clearly established prong,
so that it does not eclipse the congressionally enacted § 1983 remedy. As the Cato Institute noted
in a recent amicus brief, “qualified immunity has increasingly diverged from the statutory and
historical framework on which it is supposed to be based.” Brief of the Cato Institute as Amicus
Curiae Supporting Petitioners at 2, White v. Pauly, 137 S. Ct. 548 (2017)(No. 17-1078)(“Cato
Brief”). “The text of 42 U.S.C. § 1983 . . . makes no mention of immunity, and the common law
of 1871 did not include any across-the-board defense for all public officials.” Cato Brief at 2.
“With limited exceptions, the baseline assumption at the founding and throughout the nineteenth
century was that public officials were strictly liable for unconstitutional misconduct. Judges and
scholars alike have thus increasingly arrived at the conclusion that the contemporary doctrine of
qualified immunity is unmoored from any lawful justification.” Cato Brief at 2. See generally
William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev. 45 (2018)(arguing that the
Supreme Court’s justifications for qualified immunity are incorrect). Further, as the Honorable
Clarence Thomas, Associate Justice for the Supreme Court, has argued, because the Supreme
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Circuit stepping lightly around qualified immunity’s clearly established prong, see, e.g., Choate v.
Huff, 773 F. App’x 484, 487-88, at *2 (10th Cir. 2019)(unpublished); Perry v. Durborow, 892 F.3d
1116, 1123-27 (10th Cir. 2018); Rife v. Jefferson, 742 F. App’x 377, 381-88 (10th Cir.
2018)(unpublished); Malone v. Bd. of Cty. Comm’rs for Cty. of Dona Ana, 707 F. App’x 552,
555-56 (10th Cir. 2017)(unpublished); Brown v. City of Colo. Springs, 709 F. App’x 906, 915
(10th Cir. 2017)(unpublished); Aldaba II, 844 F.3d at 874, and willing to reverse district court
decisions should the district court conclude that the law is clearly established, but see A.N. by &
through Ponder v. Syling, 928 F.3d at 1198 (concluding that the publication of information about
an arrested and detained juvenile violated clearly established equal protection law prohibited
Court’s qualified immunity analysis “is no longer grounded in the common-law backdrop against
which Congress enacted [§ 1983], we are no longer engaged in ‘interpret[ing] the intent of
Congress in enacting’ the Act.” Ziglar v. Abbasi, 137 S. Ct. at 1871 (Thomas, J.,
concurring)(quoting Malley v. Briggs, 475 U.S. at 342). “Our qualified immunity precedents
instead represent precisely the sort of ‘freewheeling policy choice[s]’ that we have previously
disclaimed the power to make.” Ziglar v. Abbasi, 137 S. Ct. at 1871 (Thomas, J.,
concurring)(quoting Rehberg v. Paulk, 566 U.S. 356, 363 (2012)). The judiciary should be true to
§ 1983 as Congress wrote it.
Moreover, there should be a remedy when there is a constitutional violation, and jury trials
are the most democratic expression of what police action is reasonable and what action is
excessive. If the citizens of New Mexico decide that state actors used excessive force or were
deliberately indifferent, the verdict should stand, not be set aside because the parties could not find
an indistinguishable Tenth Circuit or Supreme Court decision. Finally, to always decide the clearly
established prong first and then to always say that the law is not clearly established could be
stunting the development of constitutional law. See Aaron L. Nielson & Christopher J. Walker,
The New Qualified Immunity, 89 S. Cal. L. Rev. 1, 6 (2015). And while the Tenth Circuit -- with
the exception of now-Justice Gorsuch, see Shannon M. Grammel, Justice Gorsuch on Qualified
Immunity, 69 Stan. L. Rev. Online 163 (2017) -- seems to agree with the Court, see, e.g., Casey v.
City of Federal Heights, 509 F.3d at 1286, the per curiam reversals appear to have the Tenth Circuit
stepping lightly around qualified immunity’s clearly established prong, see Aldaba II, 844 F.3d at
874; Malone v. Bd. of Cty. Comm’rs for Cty. of Dona Ana, 707 F. App’x at 555-56; Brown v.
City of Colorado Springs, 709 F. App’x 906, 915-16 (10th Cir. 2017), and willing to reverse district
court decisions.
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treating the juvenile differently than similarly situated juveniles); Matthews v. Bergdorf, 889 F.3d
1136, 1149-50 (10th Cir. 2018)(holding that a child caseworker was not entitled to qualified
immunity, because a caseworker would know that “child abuse and neglect allegations might give
rise to constitutional liability under the special relationship exception”); McCoy v. Meyers, 887
F.3d 1034, 1052-53 (10th Cir. 2018)(concluding that there was clearly established law even though
the three decisions invoked to satisfy that prong were not “factually identical to this case,” because
those cases “nevertheless made it clear that the use of force on effectively subdued individuals
violates the Fourth Amendment”).
LAW REGARDING EXCESSIVE FORCE
An excessive force claim “must . . . be judged by reference to the specific constitutional
standard which governs that right, rather than to some generalized ‘excessive force’ standard.”
Graham v. Connor, 490 U.S. at 394. The Supreme Court has long held that all claims of excessive
force in the context of an arrest or detention should be analyzed under the Fourth Amendment’s
reasonableness standard. See Graham v. Connor, 490 U.S. at 395 (“[A]ll claims that law
enforcement officers have used excessive force -- deadly or not -- in the course of an arrest,
investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth
Amendment and its ‘reasonableness’ standard . . . .”). The Supreme Court recognizes 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 v. Connor, 490 U.S. at 397. Consequently, “the reasonableness of the officer’s
belief as to the appropriate level of force should be judged from that on-scene perspective.”
Saucier v. Katz, 533 U.S. at 205. When an officer moves for qualified immunity on an excessive-
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force claim, “a plaintiff is required to show that the force used was impermissible (a constitutional
violation) and 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).
1. Relevant Factors in Determining Whether Officers’ Actions Were Objectively
Reasonable.
The Tenth Circuit has provided lists of non-exclusive factors that courts consider when
determining whether force was objectively reasonable. In Estate of Larsen v. Murr, 511 F.3d 1255
(10th Cir. 2008), the Tenth Circuit stated:
In assessing the degree of threat facing officers, then, we consider a number of nonexclusive factors. These include (1) whether the officers ordered the suspect to
drop his weapon, and the suspect’s compliance with police commands; (2) whether
any hostile motions were made with the weapon towards the officers; (3) the
distance separating the officers and the suspect; and (4) the manifest intentions of
the suspect.
511 F.3d at 1260. In Weigel v. Broad, 544 F.3d 1143 (10th Cir. 2008), the Tenth Circuit also
provided:
Reasonableness is evaluated under a totality of the circumstances approach which
requires that we consider the following factors: 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.
544 F.3d at 1151-52 (citations omitted). The court assesses “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 v. Murr, 511 F.3d at 1260 (internal
quotation marks omitted).
2.
Least- or Less-forceful Alternatives in Excessive-Force Cases.
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To avoid a “Monday morning quarterback” approach, the Fourth Amendment does not
require the use of the least, or even a less, forceful or intrusive alternative to effect custody, so
long as the use of force is reasonable under Graham v. Connor. The Fourth Amendment requires
only that the defendant officers chose a “reasonable” method to end the threat that the plaintiff
posed to the officers in a force situation, regardless of the availability of less intrusive alternatives.
Graham v. Connor, 490 U.S. at 397.
In Michigan Department of State Police v. Sitz, 496 U.S. 444, 450-51 (1990), the Supreme
Court examined a case addressing the constitutionality of highway sobriety checkpoints and stated
that Brown v. Texas, 443 U.S. 47 (1979),
was not meant to transfer from politically accountable officials to the courts the
decision as to which among reasonable alternative law enforcement techniques
should be employed to deal with a serious public danger. Experts in police science
might disagree over which of several methods of apprehending drunken drivers is
preferable as an ideal. But for purposes of Fourth Amendment analysis, the choice
among such reasonable alternatives remains with government officials who have a
unique understanding of, and a responsibility for, limited public resources,
including a finite number of police officers.
496 U.S. at 453-54. See Illinois v. Lafayette, 462 U.S. 640, 647 (1983)(“[T]he reasonableness of
any particular government activity does not necessarily turn on the existence of alternative ‘less
intrusive’ means.”). To avoid unrealistic second guessing, the Fourth Amendment does not require
that an officer use the least-intrusive alternative available to protect himself or others so long as
the method chosen is reasonable.
In United States v. Sokolow, 490 U.S. 1 (1989), the Supreme Court examined the Terry47
stop of a suspected drug courier in an airport. The Supreme Court rejected Sokolow’s contention
47
Terry v. Ohio, 392 U.S. 1 (1968).
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that the arresting officers were “obligated to use the least intrusive means available to dispel their
suspicions that he was smuggling narcotics.” 490 U.S. at 11. Instead, the Supreme Court held:
“The reasonableness of the officer’s decision to stop a suspect does not turn on the availability of
less intrusive investigatory techniques. Such a rule would unduly hamper the police’s ability to
make swift, on-the-spot decisions . . . and require courts to indulge in unrealistic second guessing.”
United States v. Sokolow, 490 U.S. at 11 (internal quotations and citations omitted). Similarly, in
United States v. Sharpe, 470 U.S. 675, 686-87 (1985), the Supreme Court stated that
a creative judge engaged in post hoc evaluation of police conduct can almost always
imagine some alternative means by which the objectives of police might have been
accomplished. But “[t]he fact that the protection of the public might, in the abstract,
have been accomplished by less intrusive means does not, by itself, render the
search unreasonable.”
470 U.S. at 686-87 (quoting Cady v. Dombrowski, 413 U.S. 433, 447 (1973)).
In Marquez v. City of Albuquerque, 399 F.3d 1216 (10th Cir. 2005), the Tenth Circuit
disagreed with the plaintiff’s contention that expert testimony about when a police dog’s use is
objectively reasonable and about how defendant Lehocky’s actions violated “well established law
enforcement standards” and rejected the plaintiff’s argument that district the testimony “should
have been admitted since it would have been helpful to the jury in determining whether Lehocky
used a reasonable amount of force.” 399 F.3d at 1222. In so holding, the Tenth Circuit explained:
As the district court correctly noted, the Fourth Amendment “do[es] not require
[police] to use the least intrusive means in the course of a detention, only reasonable
ones.” United States v. Melendez-Garcia, 28 F.3d 1046, 1052 (10th Cir.1994).
Similarly, “violations of state law and police procedure generally do not give rise
to a [42 U.S.C. §] 1983 claim” for excessive force. Romero v. Bd. of County
Comm’rs, 60 F.3d 702, 705 (10th Cir. 1995); see also Wilson v. Meeks, 52 F.3d
1547, 1554 (10th Cir. 1995)(holding that “violation of a police department
regulation is insufficient for liability under section 1983” for excessive force). Both
of these principles of our Fourth Amendment jurisprudence stem from the proper
perspective from which to evaluate the conduct of a police officer -- that “of a
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reasonable officer on the scene, acknowledging that the officer may be forced to
make split-second judgments in certain difficult circumstances.” Olsen [v. Layton
Hills Mall], 312 F.3d [1304,] 1314 [(10th Cir. 2002)]. Together, they prevent the
courts from engaging in “unrealistic second guessing of police officer’s decisions.”
[United States v.] Melendez-Garcia, 28 F.3d at 1052
Here, the only issue before the jury was whether Lehocky acted as a “reasonable
officer” when he ordered his police dog to apprehend Marquez. In making this
determination, the issues of whether Lehocky used the minimum amount of force
to apprehend Marquez and whether Lehocky violated some “well established police
procedure” are only tangentially related. This is because even if it found Lehocky
used more than the minimum amount of force necessary and violated police
procedure, the jury could nonetheless find he acted reasonably. [United States v.]
Melendez-Garcia, 28 F.3d at 1052; Romero [v. Bd. of Cty. Comm’rs of Cty. Lake,
60 F.3d at 705].
Marquez v. City of Albuquerque, 399 F.3d at 1222.
In United States v. Melendez-Garcia, 28 F.3d 1046 (10th Cir. 1994), the Tenth Circuit
stated: “We must avoid unrealistic second guessing of police officers’ decisions in this regard and
thus do not require them to use the least intrusive means in the course of a detention, only a
reasonable ones.” 28 F.3d at 1052 (internal quotations omitted). See Medina v. Cram, 252 F.3d
1124, 1133 (10th Cir. 2001)(stating that “the reasonableness standard does not require that officers
use alternative less intrusive means” (internal quotation marks omitted)(citation omitted));
Dickerson v. McClellan, 101 F.3d 1151, 1160 (6th Cir. 1996)(“[T]he Fourth Amendment does not
require officers to use the best technique available as long as their method is reasonable under the
circumstances.”); Schulz v. Long, 44 F.3d 643, 649 (8th Cir. 1995)(“[T]he Fourth Amendment
inquiry focuses not on what the most prudent course of action may have been or whether there
were other alternatives available, but instead whether the seizure actually effectuated falls within
the range of conduct which is objectively ‘reasonable’ under the Fourth Amendment.”); Scott v.
Henrich, 39 F.3d 912, 915 (9th Cir. 1994)(“Requiring officers to find and choose the least intrusive
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alternative would require them to exercise superhuman judgment . . . . Officers thus need not avail
themselves of the least intrusive means of responding to an exigent situations; they need only act
within that range of conduct we identify as reasonable.”); Menuel v. City of Atlanta, 25 F.3d 990,
996-97 (11th Cir. 1994)(“[T]he Fourth Amendment does not require officers to use the least
intrusive alternatives in search and seizure cases. The only test is whether what the police officers
actually did was reasonable.”); Plakas v. Drinski, 19 F.3d 1143, 1149 (7th Cir. 1994)(“We do not
believe the Fourth Amendment requires the use of the least or even a less deadly alternative so
long as the use of force is reasonable under Garner v. Tennessee [sic] and Graham v. Connor.”).
“Thus, the clearly established law in the Tenth Circuit holds that the Fourth Amendment does not
require an officer to use the least or a less forceful alternative.” Jonas v. Bd. of Comm’rs of Luna
Cty., 699 F. Supp. 2d 1284, 1296 (D.N.M. 2010)(Browning, J.). See, e.g., Blossom v. Yarbrough,
429 F.3d at 968 (quoting Medina v. Cram, 252 F.3d at 1133)(“It is well settled that ‘the
reasonableness standard does not require that officers use alternative, less intrusive means’ when
confronted with a threat of serious bodily injury.”); Jiron v. City of Lakewood, 392 F.3d 410, 414
(10th Cir. 2004)(stating that, in police-shooting case, officers are not required to use alternative,
less intrusive means if their conduct is objectively reasonable). See also Roy v. Inhabitants
Lewiston, 42 F.3d 691, 695 (1st Cir. 1994)(“[I]n close cases, a jury does not automatically get to
second guess these life and death decisions, even though plaintiff has an expert and a plausible
claim that the situation could better have been handled differently.”); Diaz v. Salazar, 924 F. Supp.
1088, 1100 (D.N.M. 1996)(Hansen, J.). Moreover, the reasonableness standard does not require
that officers use “alternative ‘less intrusive’ means.” Illinois v. Lafayette, 462 U.S. 640, 647-48,
(1983). The Court has also rejected the consideration of a less intrusive alternative to end a threat.
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See Chamberlin v. City of Albuquerque, No. 02-0603, 2005 WL 2313527, at *2 (D.N.M. July 31,
2005)(Browning, J.)(precluding the plaintiff’s police procedures expert from testifying at trial
regarding alternative less intrusive means).
ANALYSIS
The Court grants the MSJ. First, the Court concludes that the undisputed facts do not
establish a genuine question whether Daffron violated Howard’s Fourth Amendment rights as the
Plaintiffs assert in Count I. Second, the Court concludes that, because Daffron did not violate
Howard’s clearly established Fourth Amendment rights, Chafin and Molina did not violate
Howard’s Fourth Amendment rights by failing to intervene to protect Howard, because failure-tointervene claims require an underlying constitutional violation. Third, the Court concludes that,
even assuming that Daffron used objectively unreasonable force in violation of Howard’s Fourth
Amendment rights, Chafin and Molina did not violate Howard’s Fourth Amendment rights by
failing to intervene, because they had no reaslistic opportunity to do so. Fourth, the Court
concludes that, assuming Franco used objectively unreasonable force in violation of Howard’s
Fourth Amendment rights, Daffron, Chafin, and Molina did not violate Howard’s Fourth
Amendment rights by failing to intervene, because they had no realistic opportunity to do so.
Finally, the Court concludes that the Plaintiffs are not entitled to additional discovery, because the
requested discovery is not necessary to defend against the MSJ. Accordingly, the Court grants
summary judgment in the Movants’ favors as to Counts I and II.
I.
DAFFRON IS ENTITLED TO QUALIFIED IMMUNITY ON HOWARD’S
EXCESSIVE FORCE CLAIM.
The Court concludes that Daffron did not use excessive force in kneeing Howard’s
shoulder. Howard was a fleeing felony suspect. When Daffron arrived, one of Howard’s hands
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was underneath his body and not visible to Daffron. Officers commanded Howard to show his
hands, yet one remained out of sight near his waistband. Daffron administered three knee strikes
to Howard’s shoulder. Although knee strikes are “capable of injuring an arrestee,” see Martin v.
City of Albuquerque, 147 F. Supp. 3d 1298, 1331 (D.N.M. 2015)(Browning, J.)(quoting Myser v.
Spokane Cty., 2008 WL 4833294, at *8 (E.D.Wash. Nov. 3, 2008)(Van Sickle, J.)), they do not
amount to deadly force. An officer in Daffron’s position could reasonably conclude that Howard’s
hidden hand posed a threat to himself and to other officers, justifying the use of kee strikes to
Howard’s shoulder. Accordingly, under the Graham v. Connor factors, Daffron did not use
excessive force. Further, even if Daffron used excessive force in striking Howard’s shoulder,
Howard has not demonstrated that Daffron’s strikes violated Howard’s clearly established Fourth
Amendment rights.
A.
DAFFRON DID NOT USE EXCESSIVE FORCE IN KNEEING HOWARD’S
SHOULDER.
In the MSJ, the Movants asks the Court to grant summary judgment in Daffron’s favor on
the Plaintiffs’ excessive force claims. See MSJ at 11. The Movants assert that Daffron did not
violate Howard’s Fourth Amendment rights, because Daffron used objectively reasonable force
“given that Howard was a non-compliant, felony suspect.” MSJ at 11. The Movants assert that
Daffron “delivered three (3) knee strikes to Howard’s shoulder while officers ordered Howard to
give them his hands.” MSJ ¶ 23, at 7 (citing Franco Depo. at 46:22-47:9; Daffron Lapel Video at
4:40-4:50; Jones Lapel Video at 2:22-2:26). Although the Plaintiffs do not propose as fact, in their
Response’s proposed fact section, that Daffron struck Howard’s shoulder, see Response ¶ 15, at 9,
the Plaintiffs assert in their argument section that Daffron “is seen on video administering strikes
to Mr. Howard’s head,” Response ¶ 15, at 9 (directing the Court to another portion of the Response,
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in which the Plaintiffs assert that “Officer Daffron struck Mr. Howard three times with his knee,”
and noting that Franco “observed that Officer Daffron’s strikes were made to Mr. Howard’s
shoulder, not his torso”). The Court, supra, adopts as an undisputed fact that Daffron used his knee
to strike Howard’s shoulder three times. See supra n.28 and accompanying text, at 14-15. The
Court accordingly analyzes whether Daffron violated Howard’s Fourth Amendment rights when
he delivered three knee strikes to Howard’s shoulder.
The Tenth Circuit has made clear that, although officers may use force to apprehend a
suspect, the level of force they use must be necessary to accomplish their objectives. See Buck v.
City of Albuquerque, 549 F.3d 1269, 1289-90 (10th Cir. 2008). The Tenth Circuit has concluded
that the Fourth Amendment “does not require the use of the least, or even a less, forceful or
intrusive alternative to effect custody, so long as the use of force is reasonable under Graham v.
Connor.” James v. Chavez, 830 F. Supp. 2d 1208, 1273 (D.N.M. 2011)(Browning, J.). See Medina
v. Cram, 252 F.3d 1124, 1133 (10th Cir. 2001). Accordingly, officers may use more force to
apprehend a fleeing felon than they may use to arrest a submissive misdemeanant. See Casey v.
City of Fed. Heights, 509 F.3d at 1282. Courts consider knee strikes a significant use of force.
See Martin v. City of Albuquerque, 147 F. Supp. 3d at 1331 (“[K]nee strikes to other parts of a
suspect’s body are inherently dangerous, are intended to inflict severe pain, and are ‘capable of
injuring an arrestee.’” (quoting Myser v. Spokane Cty., 2008 WL 4833294, at 8)); Lopez v. City
of Imperial, 2015 U.S. Dist. LEXIS 87441, 2015 WL 4077635, at *7 (S.D. Cal. July 2, 2015);
Aranda v. City of McMinnville, 942 F. Supp. 2d 1096, 1105 (D. Or. 2013). “If a particular use of
force is considered deadly force, then an officer’s use of that force is reasonable only ‘if a
reasonable officer in Defendants’ position would have had probable cause to believe that there was
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a threat of serious physical harm to themselves or to others.’” Thomson v. Salt Lake Cty., 584
F.3d at 1313 (emphasis omitted)(quoting Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d at
1260).
The Tenth Circuit uses a nonexclusive list of factors to ascertain “the degree of threat the
suspect poses to the officers,” which includes “‘(1) whether the officers ordered the suspect to drop
his weapon, and the suspect’s compliance with police commands; (2) whether any hostile motions
were made with the weapon towards the officers; (3) the distance separating the officers and the
suspect; and (4) the manifest intentions of the suspect.’” Thomson v. Salt Lake Cty., 584 F.3d at
1313 (quoting Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d at 1260). “In determining the
objective reasonableness of an officer’s conduct[, the Tenth Circuit] look[s] to the totality of the
circumstances, viewing the situation ‘from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.’” Zia Trust Co. ex rel. Causey v. Montoya, 597
F.3d at 1154 (quoting Graham v. Connor, 490 U.S. at 396).
An officer in Daffron’s position could reasonably conclude that force was necessary to
effect the arrest, and to protect himself and the other officers. In Myser v. Spokane Cty., officers
justifiably tackled and administered knee strikes to the torso of a man they suspected of a
misdemeanor offense and who was not responding to the officers’ commands. See 2008 WL
4833294, at *8. The Honorable Fred Van Sickle, Senior United States District Judge for the United
States District Court for the Eastern District of Washington, noted that officers are not required to
wait for a suspect to throw a punch or draw a weapon when officers reasonably believe a suspect
might present a threat. See Myser v. Spokane Cty., 2008 WL 4833294, at *8. Here, officers
suspected Howard of committing a felony as they pursued the bait vehicle that he was driving.
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See N.M. Stat. Ann § 30-16D-1; supra n.11 and accompanying text, at 6. When the bait vehicle
stopped, Howard remained in the vehicle for two minutes while officers shouted for him to exit
with his hands raised. See supra n.14 and accompanying text, at 7. Howard eventually exited the
car and ran. See supra n.16 and accompanying text, at 8. Eventually Howard stopped fleeing and
sat, but when Daffron reached Howard, Howard was on the ground with his hand out of sight under
his body, while officers shouted commands that he yield both of his hands. See supra nn.26-27
and accompanying text, at 12-14. Although officers discovered ultimately that Howard was
unarmed, “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective
of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v.
Connor, 490 U.S. at 396. Similarly, although the Plaintiffs assert that Howard decided, at some
point during his sprint away from the officers, that he would submit peaceably, that information
was not readily apparent to an officer in Daffron’s position. Howard asserts that he was not
resisting arrest, but rather that multiple officers pinned him and that he was trying only to protect
himself. See Response at 14. From Daffron’s position, however, a felony suspect was resisting
arrest and not complying with officers’ commands that he yield his hands and show that he was
unarmed. Courts must evaluate an officer’s conduct based on the facts and circumstances known
to the officer at the time they acted. See White v. Pauly, 137 S. Ct. at 550; Saucier v. Katz, 533
U.S. at 205. The three Graham v. Connor factors thus support Daffron’s use of force. See Graham
v. Connor, 490 U.S. at 396. An objective officer in Daffron’s position could reasonably conclude
that force was necessary to effect the arrest, and to protect himself and the other officers.
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B.
EVEN IF DAFFRON VIOLATED HOWARD’S CONSTITUTIONAL
RIGHTS, THESE RIGHTS WERE NOT CLEARLY ESTABLISHED AT
THE TIME OF HOWARD’S ARREST.
Even if the Court could, on the record before it, conclude, as a matter of law, that Daffron
violated Howard’s constitutional rights, the law was not clearly established such that a reasonable
officer in Daffron’s position would have recognized his actions’ unlawfulness regarding Howard’s
arrest. Qualified immunity provides broad protection for government officials where “their
conduct does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Pearson v. Callahan, 555 U.S. at 231 (internal quotation marks
omitted)(quoting Harlow v. Fitzgerald, 457 U.S. at 818). The Supreme Court requires district
courts “not to define clearly established law at a high level of generality” and requires that they
focus on “whether the violative nature of particular conduct is clearly established.” Ashcroft v.
al-Kidd, 563 U.S. at 742 (emphasis added). “A government official’s conduct violates clearly
established law when, at the time of the challenged conduct, ‘[t]he “contours of [a] right [are]
sufficiently clear’ that every ‘reasonable official would have understood that what he is doing
violates that right.’” Ashcroft v. al-Kidd, 563 U.S. at 741 (emphasis added)(alterations in Ashcroft
v. al-Kidd)(quoting Anderson v. Creighton, 483 U.S. at 640). It operates to protect officials from
the law’s “sometimes ‘hazy border’” and shields officers with “reasonable, but mistaken beliefs.”
Saucier v. Katz, 533 U.S. at 205 (quoting Priester v. City of Riviera Beach, 208 F.3d at 926-27).
“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.” Currier v. Doran, 242 F.3d at 923.
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As the Tenth Circuit has emphasized, although “a case on point isn’t required if the
impropriety of the defendant’s conduct is clear from existing case law,” the law is not clearly
established where “a distinction might make a constitutional difference.” Kerns v. Bader, 663 F.3d
at 1186-87 (emphasis in Kerns v. Bader). For example, in Kerns v. Bader, dealing with the search
of a home, the Tenth Circuit explained that the relevant question “wasn’t whether we all have some
general privacy interest in our home,” but “whether it was beyond debate in 2005 that the officers’
entry and search lacked legal justification.” Kerns v. Bader, 663 F.3d at 1183.
The Plaintiffs have not directed the Court to any analogous case which could support a
finding that Daffron’s action in arresting Howard violated any clearly established rights. The
Plaintiffs insist that Daffron struck Howard’s head, rather than his shoulder, but still do not point
to factually on-point cases involving head or shoulder strikes. See Response at 12. Instead, the
Plaintiffs assert that “the Graham factors weigh in favor of the Plaintiffs,” because Howard
“intended to submit to arrest,” and “did not actively resist or attempt to evade arrest at the time
that force was used on him.” Response at 13. This high level of generality contradicts the Supreme
Court’s holding on qualified immunity and does not elucidate a right that “every ‘reasonable
official would have understood.’” Ashcroft v. al-Kidd, 563 U.S. at 741 (Anderson v. Creighton,
483 U.S. at 640). The Court cannot dispense with this specificity requirement, as it serves,
according to the Supreme Court and the Tenth Circuit, a central policy behind the judicially-crafted
doctrine of qualified immunity. The level of generality at which the legal rule is defined is
important, because the Supreme Court says that qualified immunity shields officers who have
“reasonable, but mistaken beliefs” as to the application of law to facts and operates “to protect
officers from the sometimes ‘hazy border[s]’” of the law. Saucier v. Katz, 533 U.S. at 205.
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Instead of pointing to factually on-point cases, the Plaintiffs seek only to distinguish the
Movants’ cited cases. See Response at 12-15. The Plaintiffs note that several of the Movants’
cited cases are unpublished Tenth Circuit cases. See Response at 14. It is the Plaintiffs’ burden,
however, to show that the law which they alleged Daffron violated is clearly established. See
Saucier v. Katz, 533 U.S. at 200; Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1185.
Nonetheless, the Court, to be fair to the Plaintiffs, discusses the Plaintiffs’ distinguished cases to
determine whether they provide Howard a clearly established right.
The Plaintiffs first seek to distinguish Youbyoung Park v. Gaitan. See Response at 13. In
that case, the Tenth Circuit considered an appeal from a district court’s determination, in relevant
part, that the officer’s use of force -- delivering a knee strike to the plaintiff’s torso -- did not
violate the plaintiff’s clearly established rights. See Youbyoung Park v. Gaitan, 680 F. App’x at
726. Investigating a nearby stabbing, the officer sought to view the security footage from the
plaintiff’s business. See F. App’x at 727. The plaintiff refused, so the officer later returned with
a search warrant to view the footage. See F. App’x at 727. Immediately after the officer’s arrival,
the officer “forcibly escorted” the plaintiff out of his business. F. App’x at 727-28. As they
approached the exit, the plaintiff “began to tense his arms, brace his legs, and attempt to pull away
from the officers.” F. App’x at 728. The defendant officer “forcibly took Mr. Park to the Ground
by giving him a knee strike to the side of his body.” F. App’x at 728 (internal quotations omitted).
The district court concluded that the first two Graham v. Connor factors “(the severity of the crime
at issue and whether Mr. Park posed a threat to Defendants’ safety) favored Mr. Park, while the
third heavily favored Defendants.” F. App’x. at 739. The Tenth Circuit panel agreed with the
district court and concluded that there was no constitutional violation. See F. App’x at 739. The
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plaintiff “tense[d] his arms, brace[d] his legs, and tr[ied] to pull his arms away from” the officers,
which amounted to “physical resistance” against arrest. F. App’x at 739. The Tenth Circuit noted
that “officers may employ the amount of force necessary to complete the arrest, and -- if they
believe (even mistakenly) that the arrestee will continue to fight back -- they may use ‘more than
in fact’ necessary.” F. App’x at 739-40 (quoting Saucier v. Katz, 533 U.S. at 205). “Guided by
the third Graham factor, and considering the totality of the circumstances,” the Tenth Circuit
concluded that the officer’s “use of force -- including a knee strike to Mr. Park’s torso and taking
him to the ground -- was proportional and reasonable given the nature of Mr. Park’s forceful
physical resistance.” F. App’x at 740 (internal quotation marks and alterations omitted).
The Plaintiffs seek to distinguish Youbyoung Park v. Gaitan, arguing that “there is no . . .
evidence that supports even an inference that Mr. Howard was fighting back.” Response at 14.
The Plaintiffs contend that Howard “drove at a slow rate or normal rate of speed in a stolen car,”
and say that, “[a]lthough he was eluding initially, he stopped, turned toward Officer Franco with
his arms in plain view and open as if to surrender.” Response at 14. “At no time,” the Plaintiffs
argue, “did Mr. Howard fight back or physically threaten the Defendants during the melee-like use
of force applied against him.” Response at 14. The Court disagrees with the Plaintiffs’ argument.
In the light most favorable to the Plaintiffs, the undisputed material facts show that Howard, who
was suspected of committing a felony and had ignored tailing police sirens, sat in a dimly lit vehicle
for two minutes as officers shouted commands for him to exit the vehicle and surrender. Howard
then fled on foot through a dimly lit street. Daffron arrived to see officers struggling with Howard,
and commanding him to yield both hands, one of which was beneath his body near his waistband.
Howard did not comply. Using an objective standard, the Court can conclude that an officer in
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Daffron’s position could reasonably decide that Howard was resisting an arrest -- which he first
tried to avoid by fleeing -- and reasonably fear that Howard’s hidden hand might hold a weapon.
In such a situation, Daffron was entitled to use “‘more force than in fact’ necessary.” Youbyoung
Park v. Gaitan, 680 F. App’x at 740 (quoting Saucier v. Katz, 533 U.S. at 205). The plaintiff in
Youbyoung Park v. Gaitan was arrested for obstructing an officer, a misdemeanor, and the
defendant officer could see he was unarmed. See 680 F. App’x at 740. Nonetheless, when he
resisted arrest, officers did not violate the plaintiff’s Fourth Amendment rights by delivering a
knee strike to the plaintiff’s torso. Here, Howard was arrested for a felony offense, and officers
reasonably feared that he was hiding a weapon under his body. Daffron did not violate Howard’s
Fourth Amendment rights by delivering knee strikes to Howard’s shoulder.
The Plaintiffs next distinguish Yadon v. Hilton. See Response at 14. In that case, officers
sought to arrest the plaintiff for disorderly conduct when the “plaintiff several times yelled and
flailed his arms in the vicinity of the defendants,” as the plaintiff “was apparently disturbed because
he thought” the defendants were acting outside their regional jurisdiction. Yadon v. Hilton, No.
11-4164-RDR, 2013 WL 160445, at *2 (D. Kan. Jan. 15, 2013)(Rogers, J.). The defendant
eventually told the plaintiff he was under arrest for disorderly conduct and ordered him to place
his hands behind his back. See 2013 WL 160445, at *2. Instead of complying, the plaintiff fled
the officers and tried to get into his van. See 2013 WL 160445, at *2. The defendant officer
“grabbed plaintiff’s arm (or neck, according to plaintiff) and tried to pull him away from the van,”
but the plaintiff “struggled for several minutes before being handcuffed.” 2013 WL 160445, at
*2. To gain control of the plaintiff, one defendant pinned the plaintiff to the ground by placing his
elbow underneath the plaintiff’s shoulder, fracturing the plaintiff’s ribs, and, although the plaintiff
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continued to struggle, the plaintiff complained that he could not breathe. See 2013 WL 160445,
at *2. The Tenth Circuit agreed with the district court that the officers’ conduct did not constitute
excessive force. See Yadon v. Hilton, 516 F. App’x at 695. The Tenth Circuit agreed that the first
two Graham v. Connor factors -- the crime’s severity and the extent to which the suspect poses an
immediate threat to the officer’s or others’ safety -- weighed in the plaintiff’s favor, but concluded
that the plaintiff’s active resistance justified the officer’s use of force. See 516 F. App’x at 695.
Instead of complying with the officers’ demand to yield, the plaintiff fled and then struggled
against the officers as they tried to arrest him. See 516 F. App’x at 695. “This behavior justified
the officers’ use of force which unfortunately resulted in injuries to Mr. Yadon who was diagnosed
with contusions and abrasions about the face and arms, a sprained elbow, and two non-displaced
rib fractures.” 516 F. App’x at 696.
The Plaintiffs argue that, unlike in Yadon v. Hilton, “Howard was not overtly threatening
the Defendants,” as he “never yelled at the Defendants or swung his arms around at the officers”
and “never pulled his arms away from the Defendants.” Response at 15. The Court disagrees with
the Plaintiffs’ proposed factual distinction. The police defendants in Yadon v. Hilton sought to
arrest the plaintiff for disorderly conduct -- a misdemeanor -- and were justified in using force
when the plaintiff struggled against the officers. See 2013 WL 160445, at *2. That struggle lasted
several minutes, during which the plaintiff sustained numerous injuries. See 2013 WL 160445, at
*2. Here, police suspected Howard of a felony and did not know whether he was armed. Unlike
the Plaintiffs’ characterization, Howard resisted arrest the moment he fled the bait vehicle and
continued resisting until officers secured both of his hands. Although the Plaintiffs assert that
Howard eventually decided to submit, from the perspective of an objectively reasonable officer in
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Daffron’s position, it appeared that Howard was continuing to resist as he kept one hand
underneath his body, near his waistband, despite officers commanding him to yield his hands.
Although the Plaintiffs contend that Howard had decided to submit to arrest, a reasonable officer
in Daffron’s position would see a felony suspect still resisting arrest and hiding a hand underneath
his body. See White v. Pauly, 137 S. Ct. at 550 (instructing courts to “consider[] only the facts
that were knowable to the defendant officers”). If the officers did not violate Yadon’s Fourth
Amendment rights in Yadon v. Hilton, Daffron did not violate Howard’s here.
Last, the Plaintiffs distinguish Serrano v. United States. See Response at 15. In that case,
the Tenth Circuit reviewed an encounter in which defendant United States Marshals, executing an
arrest warrant, struck repeatedly and shot a noncompliant suspect. See 766 F. App’x at 563-64.
The defendant Marshals were aware of the plaintiff’s criminal history, which included “aggravated
fleeing a law enforcement officer . . . and battery on a police officer.” 766 F. App’x at 563. The
defendant Marshals blocked and surrounded the plaintiff’s vehicle, guns drawn. See 766 F. App’x
at 563-64. One defendant Marshal saw the plaintiff “fumbling for something underneath the dash”
before turning the steering wheel to point the vehicle at the defendant Marshal. 766 F. App’x at
64. Fearing that the plaintiff was going to run the Marshal down, the Marshal shot the plaintiff “in
the head, creasing his skull, but he remained conscious and moving.” 766 F. App’x at 564. The
plaintiff’s car “started moving backward, pushing [the defendant Marshal’s] vehicle out of the way
and crossing curbs, sidewalks, and street before coming to rest.” 766 F. App’x at 564. The
Marshals then ordered the plaintiff to exit the vehicle, but the plaintiff did not comply, instead
apparently searching around for something in the car. See 766 F. App’x at 564. Although the
plaintiff later claimed he was looking for a cigarette, the defendant Marshals feared that he might
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have a weapon, so they “yanked Serrano out of the truck and took him to the ground.” 766 F.
App’x at 564. The plaintiff fell with his hands underneath his chest, and one defendant Marshal
struck the plaintiff “repeatedly on the back of the head” after the plaintiff did not comply with the
defendant Marshal’s demands that he put his hands behind his back. 766 F. App’x at 564. The
plaintiff testified that his injuries from the gunshot wound prevented him from complying with the
defendant Marshal’s commands, as he had “lost control of the left side of his body.” 766 F. App’x
at 564. The plaintiff sued one Marshal for shooting him and another Marshal for pulling him out
of his truck and hitting him in the head. 766 F. App’x at 564.
Although only the claim against the second Marshal is relevant, the Court discusses the
Tenth Circuit’s treatment of each claim because the Plaintiffs assert that Daffron struck Howard
in the head. See Response at 14. The Tenth Circuit concluded that none of the Marshals violated
the plaintiff’s Fourth Amendment rights. See 766 F. App’x at 566-70. The defendant Marshal
that shot the plaintiff did not violate his Fourth Amendment rights, as an objective officer in the
same position would reasonably fear that the plaintiff intended to weaponize his vehicle, justifying
the use of deadly force in defense. See 766 F. App’x at 567. The defendant Marshal knew of the
plaintiff’s history of fleeing and being violent with law enforcement, making his fear more
objectively reasonable. See 766 F. App’x at 567. The Tenth Circuit also concluded that the second
defendant Marshal acted reasonably in “pulling Serrano from the truck and in striking him,”
because the plaintiff was “not compliant with demands to put his hands behind his back.” 766 F.
App’x at 568. The Tenth Circuit’s analysis turned on the defendant Marshal’s reasonable belief
that the plaintiff had something in his hands and was purposefully not complying; “there was no
evidence that Aragon was, or should have been, aware that Serrano’s injuries meant that he could
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not control the left side of his body.” 766 F. App’x at 568. The Tenth Circuit rejected the
plaintiff’s argument that “‘[i]t is clearly established that a law enforcement officer may not use
force on a compliant suspect, under the officer’s control and not resisting arrest.’” 766 F. App’x
at 568 (quoting Serrano v. United States, Aplt. Opening Br. at 21, 766 F. App’x 561 (10th Cir.
2019)). The Tenth Circuit concluded that the plaintiff failed to establish a genuine dispute about
whether he was compliant and under control when the Marshal struck him and noted that the
plaintiff acknowledged that he did not follow the defendant Marshal’s “demands to present his left
arm.” 766 F. App’x at 568-69. Notably, the Tenth Circuit asserted that an officer’s securing one
of a suspect’s hands does not render that “arrestee totally under an officer’s control.” 766 F. App’x
at 569.
The Plaintiffs attempt to distinguish Serrano v. United States by arguing that, unlike in that
case, “Howard’s criminal history was not known to the Defendants and Mr. Howard was not
known to be armed and have a history of fleeing and being combative with law enforcement.”
Response at 15. The Court agrees that those factors were relevant to the Tenth Circuit’s analysis,
but the Tenth Circuit’s conclusion regarding the second defendant Marshal -- the one whose use
of force is most analogous to that used in this case -- turned on the fact that the Marshal reasonably
believed the plaintiff was armed and not complying with his demands to yield both of his hands
for arrest. See 766 F. App’x at 567-8. The Tenth Circuit refers to the plaintiff’s criminal history
only when discussing whether he reasonably pulled the plaintiff out of his truck; the plaintiff’s
apparent resistance and the defendant Marshal’s reasonable fear that the plaintiff was hiding a
weapon in the hand which he withheld justified the defendant Marshal’s striking the plaintiff in
the head. See 766 F. App’x at 567-69. Here, although there is no evidence that the Movants were
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aware of Howard’s criminal history, they sought to arrest him for committing a felony and, before
Howard fled the bait vehicle, officers saw him moving about inside the vehicle. The Plaintiffs
assert that Howard attempted to submit to his arrest and was unable to immediately yield his left
hand. Just as one defendant Marshal feared the plaintiff in Serrano v. United States, however,
Daffron reasonably feared that Howard may have been armed and reasonably believed he was
resisting arrest.
Although the Plaintiffs do not cite to specific caselaw in the Response, the Plaintiffs
asserted at the hearing that “Cordova v. Aragon and Tennessee v. Garner are two cases that support
my position with regard to the failure to intervene, [and] the Lusby case and the Mick v. Brewer
case also support[] that the law was clearly established.” Tr. at 27:25-28:5 (Oliveros). In
Tennessee v. Garner, the Supreme Court held that it is unconstitutional to use deadly force against
a fleeing suspect when there is no probable cause that the suspect poses a threat of serious physical
harm to the officer or to others. See 471 U.S. at 11. In that case, an officer responded to a “prowler
inside call,” and, when he arrived at the scene, saw the suspect trying to climb a fence to evade
arrest. 471 U.S. at 3. The officer “saw no sign of a weapon, and, though not certain,” was
reasonably sure that the suspect was unarmed. 471 U.S. at 3. The officer identified himself as
police and called for the suspect to halt. See 471 U.S. at 3. When the suspect continued to climb
the fence, the officer shot the suspect in the back of his head. See 471 U.S. at 4. The Supreme
Court concluded that deadly force was not justified, as there was no reason to believe that the
fleeing suspect posed a threat to the officer or to others. See 471 U.S. at 11. The Supreme Court
has asserted that Tennessee v. Garner and Graham v. Connor “do not by themselves create clearly
established law outside ‘an obvious case.’” White v. Pauly, 137 S. Ct. at 552 (quoting Brousseau
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v. Haugen, 543 U.S. at 199). The Supreme Court stated in Tennesee v. Garner that “if the suspect
threatens the officer with a weapon . . . , deadly force may be used if necessary to prevent escape,
and if where feasible, some warning has been given.” 471 U.S. at 11. The Tenth Circuit construed
this statement to be “merely . . . an example, and not a limitation, on the type of circumstances that
would justify an officer’s belief that the suspect was threatening immediate harm.” Ryder v. City
of Topeka, 814 F.2d 1412, 1419 n.16 (10th Cir. 1987). The Tenth Circuit concluded that “whether
a particular seizure is reasonable is dependent on the ‘totality of the circumstance,’ and not simply
on whether the suspect was actually armed.” Ryder v. City of Topeka, 814 F.2d at 1419 n.16
(quoting Tennessee v. Garner, 471 U.S. at 9). Here, an officer in Daffron’s position could
reasonably conclude that Howard might have held a weapon in his hidden hand, and Daffron acted
accordingly -- using significant but nondeadly force -- to subdue that threat. Tennessee v. Garner
is so factually dissimilar that it cannot establish clearly Howard’s asserted constitutional right.
In Cordova v. Aragon, the Tenth Circuit held that police officers may not use deadly force
against a fleeing suspect merely because he or she is driving recklessly. See 569 F.3d at 1191-92.
There, police officers began pursuing the suspect who was driving a stolen truck that was pulling
a trailer with heavy excavation equipment in it. See 569 F.3d at 1183. During the pursuit, the
suspect nearly rammed a patrol car, twice drove off the road to avoid spike strips, ran multiple red
lights, refused to stop for patrol cars that had their lights and sirens activated, and drove at speeds
between thirty and fifty miles per hour. See 569 F.3d at 1186. Eventually, the suspect entered a
highway and began driving on the highway’s wrong side. See 569 F.3d at 1186. Two officers
drove ahead of the suspect in an attempt to deploy stop sticks. See 569 F.3d at 1186-87. The
suspect drove the truck too close to the officers for them to deploy the stop sticks, so one officer
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drew his firearm and fired at the truck, killing the suspect. See 569 F.3d at 1187. Of the four to
five shots the officer fired, only one hit the front of the truck -- the remaining hit the side of the
truck -- and the fatal shot hit the suspect in the back of his head. See 569 F.3d at 1187. The officer
argued that he shot the suspect, because he was in immediate danger, and because the truck was
about to run over him. See 569 F.3d at 1187.
The Tenth Circuit held that the officer’s conduct in shooting the suspect was unreasonable.
See Cordova v. Aragon, 569 F.3d at 1192. The Tenth Circuit first concluded that the suspect did
not pose an imminent threat to other motorists. See 569 F.3d at 1190. The Tenth Circuit noted
that, even though the suspect was driving recklessly on the wrong side of a highway, the record
did not contain any facts showing that, at that time, there were any motorists in the vicinity. See
569 F.3d at 1190. The Tenth Circuit held that the mere possibility that the suspect’s behavior
could endanger motorists who might come along was insufficient to justify killing the suspect.
See 569 F.3d at 1190 (“Mr. Cordova’s behavior did, of course, create risks for other motorists who
might come along, but that risk of future harm was not enough to justify the near certainty of Mr.
Cordova’s death.”). The Tenth Circuit held that “the general risks created by a motorist’s fleeing
from the police are, without more, [not] enough to justify a shooting that is nearly certain to cause
that suspect’s death.” 569 F.3d at 1190. The Tenth Circuit next held that the suspect did not pose
an imminent threat to the officers. See 569 F.3d at 1191. The Tenth Circuit focused on the fact
that several shots hit the side of the truck and that the fatal shot struck him in the back of his head
to conclude that a reasonable jury could find that the officer was not “in immediate danger when
he fired the fatal shot.” 569 F.3d at 1191.
The Plaintiffs’ reliance on Cordova v. Aragon is
misplaced. In that case, the parties did not dispute that the officer was in no immediate danger.
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See 569 F.3d at 1187. Here, in contrast, the undisputed facts show that Daffron reasonably feared
that Howard’s hidden hand might have posed a danger to himself and the other officers. Further,
unlike in Cordova v. Aragon, Daffron did not use lethal force in subduing the danger that he
perceived. See Thomson v. Salt Lake Cty., 584 F.3d 1304, 1312 (10th Cir. 2009)(stating that
“deadly force is such force that ‘create[s] a substantial risk of causing death or serious bodily
harm.” (quoting Jiron v. City of Lakewood, 392 F.3d 410, 415 n.2 (10th Cir. 2004)).
The Plaintiffs have not pointed to any caselaw clearly establishing Howard’s asserted
Fourth Amendment rights, and the cases which they seek to distinguish are similar to the present
case. While “[t]he degree of physical coercion that law enforcement officers may use is not
unlimited[,] . . . the 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 v. McCauley, 478 F.3d at 1125-26. Courts must also consider, however, that
“[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge’s
chambers, violates the Fourth Amendment.” Graham v. Connor, 490 U.S. at 396. Further, “[n]ot
every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,
violates the Fourth Amendment.” Graham v. Connor, 490 U.S. at 396. The rights that the
Plaintiffs assert are not clearly established.
II.
DAFFRON, CHAFIN, AND MOLINA ARE ENTITLED TO SUMMARY
JUDGMENT ON THE PLAINTIFFS’ FAILURE-TO-INTERVENE CLAIM.
The Movants assert that they are entitled to summary judgment on the Plaintiffs’ failure-
to-intervene claim, because the Plaintiffs have not made out an underlying constitutional violation
or, alternatively, if there is an underlying violation, because the Movants had no realistic
opportunity to intervene. See MSJ at 16. The Movants direct this argument at both Daffron’s and
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Franco’s alleged excessive force. See MSJ at 16, 18. The Plaintiffs allege that two of the
Defendants used excessive force: Daffron and Franco.48 The Court accordingly conducts separate
analyses for each alleged violation, discussing whether the undisputed facts support the Plaintiffs’
Fourth Amendment claim against the Movants.
A.
CHAFIN AND MOLINA ARE ENTITLED TO SUMMARY JUDGMENT
ON
THE
PLAINTIFFS’
FAILURE-TO-INTERVENE
CLAIM
REGARDING DAFFRON’S USE OF FORCE.
“[A] law enforcement official who fails to intervene to prevent another law enforcement
official’s use of excessive force may be liable under § 1983.” Mick v. Brewer, 76 F.3d 1127, 1136
(10th Cir. 1996). The Tenth Circuit has noted that, “‘for there to be a failure to intervene, it
logically follows that there must exist an underlying constitutional violation[.]’” Jones v. Norton,
809 F.3d 564, 576 (10th Cir. 2015)(quoting Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir. 2005)).
In considering the issue, the Tenth Circuit indicated that it was “unaware of any failure to intervene
case in which this court has reversed either a grant of summary judgment or qualified immunity to
a government actor without first finding at least a genuine issue of material fact as to an underlying
constitutional violation.” Jones v. Norton, 809 F.3d at 576. The Court has previously analyzed a
In the Complaint, the Plaintiffs allege that “Daffron, Chafin, and Molina were in close
proximity to the striking and did nothing to protect Mr. Howard from the violation of his
constitutional rights.” Complaint ¶ 44, at 7. The Plaintiffs further allege that “Daffron, Chafin,
and Molina[‘s] failure to intervene violated Mr. Howard’s Fourth Amendment rights.” Complaint
¶ 45, at 7. In the Response, the Plaintiffs advance their failure-to-intervene claim against Chafin
and Molina. See Response at 16 (asserting that “Chafin and Molina are not entitled to qualified
immunity,” because they failed to prevent Daffron’s and Franco’s use of force). The Movants
reply that the Plaintiffs “concede[] they are only asserting failure-to-intervene claims against
Officers Chafin and Molina.” Reply at 11. The Court agrees that the Plaintiffs direct their
argument almost exclusively towards Chafin and Molina, but the Plaintiffs also include the
following sentence: “Officer Daffron was likewise in a position to intervene and stop Officer
Franco from using force against Mr. Howard.” Response at 16. The Court accordingly addresses
the Plaintiffs’ failure-to-intervene claim against Daffron, Chafin, and Molina.
48
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failure-to-intervene claim by determining whether an objective officer in the defendant’s position
would perceive that the other officer’s force was excessive. See Tanner v. San Juan Cty. Sheriff’s
Office, 864 F. Supp. 2d at 1145. In that case, the Court concluded that an officer’s duty to intervene
arose only when the underlying constitutional violation became apparent to an objective officer in
the defendant’s position. See 864 F. Supp. 2d at 1145. Accordingly, because the undisputed facts
demonstrate that Daffron did not violate Howard’s clearly established rights, Chafin and Molina
cannot be liable on a failure to intervene theory for Daffron’s use of force.
The Court nonetheless determines that, even if Daffron violated Howard’s Fourth
Amendment rights by delivering three knee strikes to his shoulder, Chafin and Molina did not
violate Howard’s clearly established rights by not preventing Daffron’s alleged violation. The
Movants contend that Chafin and Molina did not have a realistic opportunity to intervene, and note
that “Daffron delivered his strikes in rapid succession in less than four (4) seconds.” MSJ at 17.
The Plaintiffs do not dispute that Daffron’s strikes came in rapid succession, but argue that Chafin
and Molina were close enough to stop any violation. See Response at 16. The Plaintiffs assert
that Chafin and Molina “also participated in the use of force on Mr. Howard to hold him down”
while “Daffron . . . administered multiple knee strikes to Mr. Howard, including to his head and
face.” Response at 16. The Movants reply that “it is undisputed from the video that the entire
encounter after Howard left the vehicle was less than one (1) minute and Officer Daffron used
force in a four (4) second period,” so Chafin and Molina had no knowledge that a constitutional
violation was imminent or an opportunity to prevent it from happening. Reply at 11.
“An officer who fails to perform a duty may be liable under § 1983 if that failure causes
deprivation of protected rights.” Lusby v. T.G. & Y. Stores, Inc., 749 F.2d at 1433 (citing
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McClelland v. Facteau, 610 F.2d 693 at 696 (10th Cir. 1979)), judgement vacated on other grounds
by City of Lawton, Okla. v. Lusby, 474 U.S. 805 (1985). “It is ‘clearly established that . . . ‘[a]n
officer who fails to intercede is liable for the preventable harm caused by the actions of the other
officers where that officer observes or has reason to know[] . . . that excessive force is being used.’”
Vondrak v. City of Las Cruces, 535 F.3d at 1210 (quoting Anderson v. Branen, 17 F.3d 552, 557
(2d Cir. 1994)). For liability to attach, “‘there must have been a realistic opportunity to intervene
to prevent the harm from occurring.’” Vondrak v. City of Las Cruces, 535 F.3d at 1210 (quoting
Anderson v. Branen, 17 F.3d at 557). “‘Whether an officer had sufficient time to intercede or was
capable of preventing the harm being caused by another officer is an issue of fact for the jury
unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise.’”
Mata v. City of Farmington, 791 F. Supp. 2d 1118, 1156 (D.N.M. 2011)(Browning, J.)(quoting
Hall v. Burke, 12 F. App’x 856, 861 (10th Cir. 2001)(unpublished)). In Mick v. Brewer, the Tenth
Circuit concluded that the district court erroneously awarded the defendant qualified immunity at
the summary judgment stage, because there was a genuine issue of material fact whether the
defendant “observed the interaction and failed to intervene to prevent [the other defendant] from
using allegedly excessive force.” 76 F.3d at 1137. In Fogarty v. Gallegos, the Tenth Circuit held
that the district court was correct to deny summary judgment on the grounds that there was an
issue of fact whether the officer could be liable for failing to intervene in the alleged excessive use
of force when the plaintiff described the arrest as lasting between three and five minutes, and when
the district court found that the officer was present for the arrest, which, together, supported a
“conclusion that [the officer] had the opportunity to prevent [the plaintiff’s] injuries.” 523 F.3d at
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1164 (citing O’Neill v. Krzeminski, 839 F.2d at 11; Lusby v. T.G. & Y. Stores, Inc., 749 F.2d at
1433).
The opportunity to intervene must be realistic, and summary judgment is appropriate where
no reasonable jury could conclude that an officer was forewarned of the violation or had the ability
to stop it once in progress. See Hall v. Burke, 12 F. App’x at 861. Some courts gauge liability by
determining whether the officer’s inaction amounts to the underlying violation’s proximate cause.
In O’Neill v. Krzeminski, the United States Court of Appeals for the Second Circuit stated:
In this case, the claim that Conners became liable for use of excessive force by
failing to intercede must be addressed separately with respect to the acts of Fiorillo
and Krzeminski in striking O’Neill and the act of Krzeminski draffing O’Neill
across the floor by his throat. Even when the evidence is viewed in the light most
favorable to the plaintiff, there is insufficient evidence to permit a jury reasonably
to conclude that Conners’ failure to intercede was a proximate cause of the beating.
The three blows were struck in such rapid succession that Conners had no realistic
opportunity to prevent them. This was not an episode of sufficient duration to
support a conclusion that an officer who stood by without trying to assist the victim
became a tacit collaborator. With respect to subsequent dragging of O’Neill across
the floor, however, the case against Conners is adequate to create an issue of fact
for the jury. Having seen the victim beaten, he was alerted to the need to protect
O’Neill from further abuse. Though not a guarantor of O’Neill’s safety in the face
of brutality administered by the other officers, Conners can be found liable for
deliberately choosing not to make a reasonable attempt to stop Krzeminski.
839 F.2d at 11-12. Similarly, courts also hold, as a matter of law, that no duty to intervene exists
“when a government official would have to place themselves in danger to intervene.” Tanner v.
San Juan Cty. Sheriff’s Office, 864 F. Supp. 2d at 1144. For instance, the United States Court of
Appeals for the Fifth Circuit held that a district court should have entered summary judgment in
favor of some unarmed prison guards who allegedly failed to intervene in a prisoner’s beating,
because “no rule of constitutional law required unarmed officials to endanger their own safety in
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order to protect a prison inmate threatened with physical violence” by other inmates. Longoria v.
Texas, 473 F.3d 586, 593 (5th Cir. 2006).
There is no genuine issue of material fact whether Chafin and Molina had a realistic
opportunity to intervene. It is undisputed that Chafin and Molina arrived shortly after Franco
brought Howard to the ground. See supra n.14 and accompanying text, at 11-12; Molina Lapel
Video at 2:45-2:48. Ten seconds elapsed from when Chafin and Molina arrived to when officers
had secured both of Howard’s hands. See supra nn.29-30 and accompanying text, at 14-15; Molina
Lapel Video at 2:46-2:56. Less than four seconds elapsed between Daffron’s first strike and his
third. See supra n.29 and accompanying text, at 14-15; Jones Lapel Video at 2:21-2:25. While
Daffron struck Howard, Chafin and Molina were trying to secure Howard’s right hand to effect
the arrest and ensure that Howard was not hiding a weapon. See Jones Lapel Video at 2:20-2:26.
Once Daffron secured both hands, Officer Chafin told the other officers “alright, alright,” and
indicated that the officers had neutralized the threat. Jones Lapel Video at 2:24-2:26. Daffron’s
rapid strikes did not leave Chafin and Molina a realistic opportunity to intervene. In the Plaintiffs’
only cited case, Fogarty v. Gallegos, fact issues precluded summary judgment on the plaintiff’s
failure-to-intervene claim, but there the plaintiff “described the arrest as lasting between three and
five minutes.” 523 F.3d at 1164. Here, the effort to place Howard in handcuffs lasted ten seconds,
and Daffron’s strikes came in rapid succession in four seconds. In the light most favorable to the
Plaintiffs, no reasonable jury could conclude that Chafin and Molina had a realistic opportunity to
intervene.
Similarly, the Plaintiffs have not clearly established a Fourth Amendment right for nearby
officers to anticipate and prevent sudden use of force while struggling against an apparently
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resisting felony suspect. In the Plaintiffs’ lone cited case, Fogarty v. Gallegos, the plaintiff was
arrested for disorderly conduct during an antiwar protest. See 523 F.3d at 1152. The arresting
officers used tear gas and a nonlethal “pepper ball device,” tore the plaintiff’s wrist tendons by
placing the plaintiff in a “hyperflexion position” to arrest the plaintiff, and dragged him down a
street, all while the plaintiff suffered an asthma attack, although there was no evidence that the
plaintiff resisted arrest. 523 F.3d at 1152. After realizing that the plaintiff was suffering from an
asthma attack, they stopped to let him catch his breath before continuing the arrest. See 523 F.3d
at 1152.
After reviewing the record, the district court found that “[n]o police officer notified
[Fogarty] that he was under arrest, nor did they ask him to come along peacefully.”
It concluded that “[t]here is no indication, even by Defendants’ version, the Plaintiff
ever resisted arrest or attempted to evade arrest, which would have called for the
use of a higher degree of force.”
523 F.3d at 1160. The Tenth Circuit held that the district court was correct to deny summary
judgment on the plaintiff’s failure-to-intervene claim, because there was an issue of fact whether
the officer could be liable for failing to intervene in the alleged excessive use of force when the
plaintiff described the arrest as lasting between three and five minutes, and when the district court
found that the officer was present for the arrest, which, together, supported a “conclusion that [the
officer] had the opportunity to prevent [the plaintiff’s] injuries.” 523 F.3d at 1164 (citing O’Neill
v. Krzeminski, 839 F.2d at 11 (holding that defendant had no duty to intervene when “three blows
were struck in such rapid succession that had no realistic opportunity to attempt to prevent them”)).
The Tenth Circuit stated that, under clearly established law, if an officer is present at an arrest,
“with an opportunity to prevent the excessive use of force, he would have had a duty to intervene.”
523 F.3d at 1163. The district court properly withheld qualified immunity, because the defendant
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“set the wheels of the alleged constitutional deprivation in motion and . . . he may have stood by
and witnessed Fogarty’s arrest and resultant injuries.” 523 F.3d at 1163.
The Plaintiffs do not analogize to Fogarty v. Gallegos, but rather quote it for the proposition
that “‘[a]n officer who fails to intervene to prevent a fellow officer’s excessive use of force may
be liable under § 1983.’” Response at 16 (quoting Fogarty v. Gallegos, 523 F.3d at 1163). The
Supreme Court has instructed “repeatedly” that district courts may not “define clearly established
law at a high level of generality.” Ashcroft v. al-Kidd, 563 U.S. at 742. Courts must conduct the
clearly-established inquiry “in light of the specific context of the case, not as a broad general
proposition.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004)(per curiam). The Court considers
this principle particularly important to failure-to-intervene claims, which are highly factdependent. See Fogarty v. Gallegos, 523 F.3d at 1164 (citing O’Neill v. Krzeminski, 839 F.2d at
11). The Plaintiffs have not cited, and the Court has not found, any cases establishing a
constitutional violation when an officer, engaged in subduing a resisting and potentially armed
defendant, does not prevent the use of sudden, rapid force -- even when excessive -- to effect the
arrest. The right that the Plaintiffs assert is not clearly established.
B.
DAFFRON, CHAFIN, AND MOLINA ARE ENTITLED TO QUALIFIED
IMMUNITY ON THE PLAINTIFFS’ FAILURE-TO-INTERVENE CLAIM
REGARDING FRANCO’S USE OF FORCE.
The Court discusses, in the previous section, the law applicable to the Plaintiffs’ failureto-intervene claim and does not repeat it here. Unlike the Plaintiffs’ claim regarding Daffron’s use
of force, however, the Court has noted that there are genuine factual disputes regarding Franco’s
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use of force. See supra n.31 and accompanying text, at 15-16.49 Specifically, the parties presented
contradictory testimony whether Franco delivered a knee strike to Franco’s head while the other
officers tried to secure both of Howard’s hands, and the video evidence does not “blatantly
contradict[]” either party’s version. Scott v. Harris, 550 U.S. at 380 (“When 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.”). Accordingly, the Court views Franco’s use of force in the light
most favorable to the Plaintiffs. Franco reached Howard first and brought him to the ground. The
other officers arrived and straddled Howard to gain control over Howard’s hands. Franco shouted
for Howard to yield his hands, but the other officers continued to struggle to gain Howard’s right
hand. Franco then delivered a single knee strike to Howard’s head. These events occurred within
a ten-second window, with Franco’s hand strike happening before the other officers’ arrival, and
his knee strike coming four seconds into the incident. The question, then, is whether, in the light
most favorable to the Plaintiffs, Daffron, Chafin, and Molina had a duty, and realistic opportunity
to intervene to prevent Franco’s use of force.
Franco is not a party to the MSJ and does not join it. Viewing the evidence in the light
most favorable to the Plaintiffs, the Court assumes, for the MSJ’s purposes, that Franco’s knee
strike violated Howard’s Fourth Amendment rights. Nonetheless, the undisputed material facts,
As the Court noted in the factual background section, the Court concludes that the Franco
Lapel Video shows Franco striking Howard’s face immediately upon reaching Howard, before the
other officers’ arrival. Although the video evidence shows this fact, neither party alleges this fact
for the MSJ’s purposes. The Court infers, then, that neither party deems this fact material to the
MSJ. The Court agrees that Franco’s hand strike, before the other officers’ arrival, is not material
to the Plaintiffs’ contention that Daffron, Chafin, and Molina violated Howard’s Fourth
Amendment rights by failing to intervene to prevent Franco’s knee strike.
49
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in the light most favorable to the Plaintiffs, do not make out a constitutional violation for failure
to intervene to prevent Franco’s knee strike. The Plaintiffs argue that the Movants held Howard
down, and that their close proximity to Franco gave them the opportunity to prevent Franco’s knee
strike. See Tr. at 23:4-5 (Oliveros). The Plaintiffs assert that the Movants “could have easily
deflected the knee strike.” Tr. at 23:13-14 (Oliveros).
As discussed above, to be liable under a nonfeasance theory, the defendants must have had
a realistic opportunity to intervene. See Fogarty v. Gallegos, 523 F.3d at 1163. A bystander
officer’s nonfeasance cannot give rise to liability where the underlying constitutional violation that
occurs “in a matter of seconds.” Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 207
n.3 (1st Cir. 1990). Such an officer’s inaction is not a proximate cause of the underlying violation.
See O’Neill v. Krzeminski, 839 F.2d at 12. The Plaintiffs have offered no “evidence suggesting
that [the Movants] could have prevented or stopped” Franco’s knee strike. Lusby v. T.G. & Y.
Stores, Inc, 749 F.2d at 1433. The undisputed material facts show that Franco struck Howard
once, about four seconds into a ten second incident. When Franco struck Howard, the Movants
were working to secure both of Howard’s hands and effect the arrest. The Plaintiffs contend that
the Movants’ proximity to Franco afforded them the opportunity to stop his strike before it
happened. Despite their proximity, the Movants could not stop a single strike that they did not see
coming. The Plaintiffs allege no facts suggesting that the Movants were warned of Franco’s strike
before it happened. The Movants “had no reason to expect the use of excessive force until after it
had occurred.”
Fundiller v. City of Cooper City, 777 F.2d 1436, 1142 (11th Cir. 1985).
Accordingly, the Movants’ inaction did not proximately cause Franco’s violation, and so the
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Movants cannot be liable on a nonfeasance bystander liability theory. The Movants are entitled to
summary judgment on the Complaint’s Count I.
III.
THE MOVANTS ARE ENTITLED TO SUMMARY JUDGMENT ON THE
PLAINTIFFS’ LOSS-OF-CONSORTIUM CLAIM.
The Complaint’s Count III alleges that Howard’s biological children, Majesty Howard,
Majestic Howard, Jr., and Karisma Strong, “have suffered and will continue to suffer emotional
distress and loss of love, companionship, guidance and comfort.” Complaint ¶ 60, at 10. The
Movants argue that a claim for loss of consortium derives from other torts and is “not an injury in
and of itself.” MSJ at 21 (quoting Fitzjerrell v. City of Gallup ex rel. Gallup Police Dep’t, 2003NMCA-125, ¶ 12, 79 P.3d 836). The Movants contend that they are liable for the Plaintiffs’ loss
of consortium only if they are directly liable to Howard for the underlying injury. See MSJ at 21
(citing Weise v. Wash. Tru Sols., L.L.C., 2008-NMCA-121, ¶ 30, 192 P.3d 1244). The Movants
assert that, because Howard is not entitled to recovery against the Movants, the Court must dismiss
his children’s claim for loss of consortium against the Movants. See MSJ at 21. The Plaintiffs
concede that, if there is not an underlying claim, there cannot be a derivative loss of consortium
claim.” Response at 16.
Loss-of-consortium damages are consequential or special damages, and so “are contingent
upon the injured person’s entitlement to general damages.” Archer v. Roadrunner Trucking, Inc.,
1997-NMSC-003, ¶ 11, 930 P.2d 1155. “Where the defendant is not liable to the injured person
for physical injuries there can be no derivative claim for consequential damages by the injured
person’s” dependents. Archer v. Roadrunner Trucking, Inc., 1997-NMSC-003, ¶ 12. Here, the
Court has concluded that the undisputed facts show that Daffron, Chafin, and Molina did not
violate Howard’s constitutional rights. The Movants, accordingly, are not liable to Howard for his
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injuries. Howard’s children thus have no derivative claim against the Movants, and so the Movants
are entitled to summary judgment on Count III.
IV.
THE COURT DENIES THE PLAINTIFFS’ RULE 56(d) REQUEST, BECAUSE
THE REQUESTED DISCOVERY IS NOT NECESSARY TO DEFEND AGAINST
THE MSJ.
In the Response, the Plaintiffs argue that they need discovery to adequately defend against
the MSJ. See Response at 1-2. Specifically, the Plaintiffs want to depose Daffron, Chafin, and
Molina about their perceptions and memories of the Howard arrest, as well as Eden, Jury, and
Viers about APD policies, custom, and practices. See Rule 56(d) Reply at 2. According to the
Plaintiffs, the lapel videos are insufficient, because the Movants have been inconsistent about their
reporting of the Howard arrest, and because Franco acknowledges in the Franco Depo. that the
lapel videos do not always show clearly Daffron’s and Howard’s use of force. See Response at 12; Rule 56(d) Reply at 2-3. The Plaintiffs also seek to take rule 30(b)(6) depositions for APD
regarding “[p]olicies, practices, and procedures regarding the use of force” and incident reporting
when the Movants arrested Howard. Oliveros Aff. ¶ 5, at 1-2. The Court denies the rule 56(d)
request. The Plaintiffs do not identify the specific probable facts that they anticipate discovering
in these depositions, so the Court cannot soundly say that the requested discovery is necessary for
the Plaintiffs to defend against the MSJ.
Rule 56(d) of the Federal Rules of Civil Procedure states:
(d)
When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by
affidavit or declaration that, for specified reasons, it cannot present facts
essential to justify its opposition, the court may:
(1)
defer considering the motion or deny it;
(2)
allow time to obtain affidavits or declarations or to take
discovery; or
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(2)
issue any other appropriate order.
Fed. R. Civ. P. 56(d). The Court notes the tension between rule 56(d) and qualified immunity.
Although the general principle behind rule 56(d) is that “summary judgment should be refused
when the nonmoving party has not had the opportunity to discovery information that is essential
to his opposition,” Price v. W. Res., Inc., 232 F.3d at 783, the Supreme Court has directed that
“insubstantial lawsuits ‘against government officials [should] be resolved prior to discovery and
on summary judgment if possible,’” Lewis v. City of Ft. Collins, 903 F.2d at 758 (quoting
Anderson v. Creighton, 483 U.S. 635)(emphasis and alterations in Lewis v. City of Ft. Collins and
not in Anderson v. Creighton). The Court does not believe that additional discovery regarding the
constitutional claims against the Movants is appropriate.
First, the Plaintiffs have not
demonstrated with specificity the facts that additional discovery will yield and which are necessary
to defend against the MSJ. The Plaintiffs appear, instead, to be on a fishing expedition. There is
little difference between the discovery the Plaintiffs seek and what they would seek if the Movants
had not raised a qualified immunity defense. Second, additional discovery is unnecessary, because
the Plaintiffs seek evidence unrelated to the issues that the MSJ raises.
To survive the MSJ, either partially or wholly, the Plaintiffs must prove that Daffron or
Franco violated Howard’s Fourth Amendment rights by using objectively unreasonable force when
they arrested him. The Plaintiffs must also prove that Howard’s asserted Fourth Amendment rights
are clearly established. To survive the MSJ on the failure-to-intervene claim, the Plaintiffs must
establish that both that Franco or Daffron violated Howard’s clearly established rights, and that
Chafin and Molina had the opportunity to intervene to prevent the violation. Beginning with the
Plaintiffs’ claim that Daffron used excessive force in violation of the Fourth Amendment, the
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Plaintiffs concede, in the Response, that the video evidence shows Daffron using his knee to strike
Howard’s shoulder three times. See supra n.28 and accompanying text, at 13-14; Response ¶ 14,
at 6 (citing Franco Depo. at 46:22-47:24)(asserting that “Officer Daffron struck Mr. Howard three
times with his knee,” and noting that Franco “observed that Officer Daffron’s strikes were made
to Mr. Howard’s shoulder, not his torso”). The Plaintiffs assert, however, that the videos may not
depict all of Daffron’s strikes, and that additional testimony may produce evidence that Daffron
struck Howard elsewhere in addition to his strikes to Howard’s shoulder. At the hearing, the
Plaintiffs argued that more discovery is necessary, because “it’s possible . . . that when pressed
Officers Chafin and Molina might . . . have more to add” about Daffron’s use of force. Tr. at
44:17-19 (Oliveros). This is a fishing expedition. A party seeking rule 56(d) shelter must specify
“the probable facts not available.” Gutierrez v. Cobos, 841 F.3d at 895. The Plaintiffs do not
specify probable facts, but only facts that might possibly exist. To invoke rule 56(d), the Plaintiffs
must “state with specificity how the desired time would enable the nonmoving party to meet its
burden in opposing summary judgment.” Todd v. Montoya, 877 F. Supp. 2d 1048, 1083 (D.N.M.
2012)(Browning, J.)(citing Comm. for the First Amendment v. Campbell, 962 F.2d at 1522). The
Plaintiffs’ assertion that additional testimony might yield evidence suggesting that Daffron: (i)
struck Howard; (ii) in the head; and (iii) while not in any of the lapel videos’ line of sight is too
general and too speculative to meet the rule 56(d) standard, particularly in light of qualified
immunity’s policy goals. See Jones v. City and Cty. of Denver, Colo., 854 F.2d 1206, 1211 (10th
Cir. 1988)).
Nor will additional discovery better assist the Plaintiffs in defeating the MSJ on the
Plaintiffs’ failure-to-intervene claims. To prevail on their failure-to-intervene claims, the Plaintiffs
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must establish that: (i) Daffron or Franco committed an underlying violation of Howard’s clearly
established Fourth Amendment rights; (ii) the Movants had a duty and opportunity to intervene to
protect Howard from Franco’s or Daffron’s violations; (iii) the Movants’ failure proximately
caused Howard’s injuries; and (iv) the Movants’ failure to intervene violated Howard’s clearly
established rights. See Mick v. Brewer, 76 F.3d at 1137. The Plaintiffs seek to depose APD
officials to learn about their policies, practices, and procedures regarding the use of force and
incident reporting. See Oliveros Aff. ¶¶ 5, 11, at 1-3. None of this evidence affects the Plaintiffs’
ability to establish their failure-to-intervene claims or defend against the Movants’ assertion of
qualified immunity on the failure-to-intervene claims.
This information is relevant to the
Plaintiffs’ Monell claim against the City of Albuquerque, but has no bearing on whether the
Movants violated Howard’s clearly established rights by failing to prevent Daffron’s and Franco’s
alleged use of excessive force. The Plaintiffs aver that the Movants’ reports present inconsistent
narratives, so the Plaintiffs must “depose specific witnesses and the remaining Defendants and
challenge the veracity of their statements.” Response at 2. The Plaintiffs plan to use these
inconsistencies to impeach the Movants on their incident reporting. At the hearing, the Plaintiffs
asserted that Daffron provided “inconsistent reports of his use of force . . . and the number of
strikes and the places on the body, which is important, because when pressed . . . officers
sometimes do change their stories.” Tr. at 44:5-9 (Oliveros).
The Plaintiffs do not explain,
however, how this evidence will help them defend against summary judgment given that the Court
cannot decide issues of credibility on summary judgment. See Liberty Lobby, 477 U.S. at 255.
Finally, the Plaintiffs identify the discovery -- the depositions -- but not the specific probable facts
that the depositions may reveal nor how those facts will help the Plaintiffs defeat the MSJ. It is
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possible that depositions could reveal evidence that, if disclosed in the use-of-force reports, could
establish excessive force, but the Plaintiffs do not state or even hint what that evidence might be.
See Lewis v. City of Ft. Collins, 903 F.2d at 758 (“Rule 56[(d)] is not a license for a fishing
expedition . . . .”). Because the Plaintiffs have not demonstrated that additional discovery is
necessary to defend against the MSJ, and because the undisputed material facts do not make out
any constitutional violations by the Movants, summary judgment is proper as to Daffron, Chafin,
and Molina.
IT IS ORDERED that: (i) the Plaintiffs’ rule 56(d) request for additional discovery is
denied; and (ii) Defendants Daffron, Chafin, and Molina’s Motion for Summary Judgment on the
Basis of Qualified Immunity, filed October 4, 2019 (Doc. 102), is granted.
UNITED STATES DISTRICT JUDGE
Counsel:
Louren Oliveros
Robert J. Gorence
Gorence & Oliveros, P.C.
Albuquerque, New Mexico
Attorneys for the Plaintiffs
David Roman
Robles, Rael, & Anaya, P.C.
Albuquerque, New Mexico
Attorney for Defendants Ben Daffron, Joshua Chafin, and Sonny Molina
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Jonlyn M. Martinez
Law Firm of Jonlyn M. Martinez
Albuquerque, New Mexico
Attorney for Defendant Jonathan Franco
Stephanie Griffin, Esq.
Deputy City Attorney
Albuquerque, New Mexico
Attorney for Defendant City of Albuquerque
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