Rodriguez v. Coggins, et al

Filing 121

MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales denying 84 Plaintiff's Motion for Summary Judgment for Spoliation of Evidence; granting 91 County Defendants' Motion for Partial Summary Judgment No. I: Dismissal of the Estate's Claim for Excessive Force in Count I; and denying as moot 96 County Defendants' Daubert Motion to Limit and Exclude Certain Testimony by Brian McDonald, Ph. D. This case is dismissed with prejudice. (tah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
WRONGFUL DEATH ESTATE
OF MIGUEL GONZÁLEZ,
by and through Wrongful Death
Estate Personal Representative
Joanna Rodríguez,
JOANNA RODRIGUEZ, on her
own behalf and as
Mother and Next Friend of
ME Gonzalez, a minor child,
DJ Gonzalez, a minor child,
and AX Gonzales, a minor child,
Plaintiffs,
vs.

No. CV 18-125 KG/LF

BOARD OF COUNTY COMMISSIONERS
OF THE COUNTY OF BERNALILLO, NEW
MEXICO, MANUEL GONZALES, III, Sheriff
of Bernalillo County, CHARLES COGGINS, a Deputy
Sheriff of the Bernalillo County Sheriff’s
Department, and JOHN DOES 1 through
7, Deputy Sheriffs (Deputy Sheriffs) of the Bernalillo
County Sheriff’s Department, Individually
and in their Official Capacities,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Plaintiffs’ Motion for Summary Judgment for
Spoliation of Evidence (Spoliation Motion), filed November 2, 2018 (Doc. 84); Defendants
Board of County Commissioners of the County of Bernalillo, Manuel Gonzales III, and Deputy
Charles Coggins’ (County Defendants) Motion for Partial Summary Judgment No. I: Dismissal
of the Estate’s Claim for Excessive Force in Count I (QI Motion), filed November 29, 2018
(Doc. 91); and County Defendants’ Daubert Motion to Limit and Exclude Certain Testimony by

Brian McDonald, Ph.D. (Motion to Exclude), filed December 12, 2018 (Doc. 96). Plaintiffs filed
a response to the QI Motion on January 6, 2019, a response to the Motion to Exclude on January
7, 2019, and did not file a reply in support of their Spoliation Motion. (Docs. 94, 99, and 103).
County Defendants filed a response to Plaintiffs’ Spoliation Motion on November 14, 2018, and
replies in support of their QI Motion and Motion to Exclude on January 21, 2019. (Docs. 87,
108, and 112). Having reviewed the Motions, the accompanying briefs, and the applicable law,
the Count grants the County Defendants’ QI Motion, denies Plaintiffs’ Spoliation Motion, and
denies as moot the County Defendants’ Motion to Exclude.
I.

Background and Procedural History1
Around 1:00 a.m. on July 4, 2017, Deputy Charles Coggins (Coggins) was dispatched to

a car wash based on a report that some individuals were loitering. Deputy Skartwed also
responded, but did not remain at the car wash. Coggins was in a marked Bernalillo County
Sherriff’s Office (BCSO) vehicle. At the car wash, Coggins noticed a red Monte Carlo sedan
and observed the driver2 make a quick or furtive motion. Coggins ran the Monte Carlo’s license
plate through a database which reported the license plate to be stolen.
Coggins lost sight of the Monte Carlo at some time before leaving the car wash, but
Deputy Skartwed observed the Monte Carlo and radioed back the vehicle’s location. Coggins
and Deputy Skartwed, in separate vehicles, proceeded to follow the Monte Carle into a
neighborhood. At a “T” intersection, Deputy Skartwed went one direction and Coggins went the
other.

1

Unless otherwise noted, the following facts were stipulated by the parties in their briefing on
the cross-motions for summary judgment.
2

Coggins did not know the identity of the driver until later, but decedent Miguel Gonzalez was
identified as the driver.
2

As Coggins drove, he noticed a vehicle headed toward him. Coggins activated his
spotlight to illuminate the vehicle and saw that it was the red Monte Carlo. Coggins identified
the driver’s physical characteristics over the radio. The Monte Carlo accelerated toward
Coggins’ vehicle and passed him, driving in the oncoming traffic lane. Coggins made a U-turn,
engaged his emergency lights, and followed the Monte Carlo. The Monte Carlo did not yield to
the emergency lights and came to a stop only after running over a curb.
The driver, Gonzalez, got out of the Monte Carlo and ran south toward a house. Coggins
gave chase. Coggins attempted to activate his radio during the chase five times to update
dispatch and Deputy Skartwed on his location, but he was unable to activate the radio. Coggins
heard Gonzalez yelling something indistinct as Gonzalez ran toward the residence. Gonzalez
continued toward the side yard of the house and jumped a gate leading to the backyard. Coggins
continued to pursue Gonzalez and also jumped the gate. Coggins testified at his deposition that
he heard Gonzalez say “get back or I’ll shoot.” Deputy Skartwed was nearby, but did not hear
this alleged statement.
When Coggins came to a stop in the backyard, Gonzalez stood near a cinderblock wall
and was “bladed” (i.e., at a 90-degree angle) toward Coggins. Gonzalez “punched out” his right
arm – meaning that he fully extended his arm as if aiming a gun – toward Coggins. Gonzalez
was holding a dark object in his hand. Coggins believed the dark object was a firearm, based on
Gonzalez’s body position and statements. Based on all of these factors, Coggins believed
Gonzalez was preparing to shoot him.
Coggins fired four shots, striking Gonzalez four times. Deputy Skartwed arrived in the
backyard after the shots were fired. Gonzalez died on scene from his injuries. Deputy Skartwed
left Coggins unattended with Gonzalez’s body on several occasions. Investigating officers

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recovered a holstered handgun, identified by Gonzalez’s children as the one he regularly carried
in his waistband.
In 2017, BCSO had a code of ethics, rules, and procedures in effect. Officers wore tape
recorders (belt tapes) and were required to activate these tapes during or in anticipation of traffic
stops and/or situations involving resisting, evading, or obstructing an arrest. Use of the belt tape
is mandatory. BCSO further required officers to preserve and collect physical and testimonial
evidence for courtroom presentation, though not everything on scene that contains blood must be
collected as evidence.
In the case of an officer-involved shooting, BCSO policy mandates videotaped
documentation of the scene. This could and should have been done after the Gonzalez shooting,
but it was not.
Detective James Fredrickson, the lead investigating officer, personally made the decision
not to collect or preserve the cinderblocks on scene, and determined that preservation or testing
of the cinderblocks would not have assisted in the investigation. Gonzalez’s handgun, recovered
from atop a cinderblock, did not have any blood on it.
Joanna Rodriguez (Rodriguez), as personal representative of Gonzalez’s estate, brought
this case against Coggins and the other County Defendants, alleging Coggins violated
Gonzalez’s Fourth Amendment right to be free from the use of excessive force.
II.

Standard of Review
Summary judgment is appropriate if there is no genuine dispute as to a material fact and

the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). “When applying
this standard, [the Court] view[s] the evidence and draw[s] reasonable inferences therefrom in
the light most favorable to the nonmoving party.” Scull v. New Mexico, 236 F.3d 588, 595 (10th

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Cir. 2000) (internal quotation marks omitted). The movant bears the initial burden of showing
the absence of a genuine issue of material fact, then the burden shifts to the non-movant to
provide evidence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). Evidence
presented need not be in admissible form, but must be capable of presentation in admissible
form. Fed. R. Civ. P. 56(c)(2). A fact is “material” if, under the governing law, it could
influence the outcome of the lawsuit, and “genuine” if a reasonable jury could return a verdict
for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Hardy v. S.F.
Phosphates Ltd. Co., 185 F.3d 1076, 1079 (10th Cir. 1999); Kaul v. Stephan, 83 F.3d 1208, 1212
(10th Cir. 1996) (citation omitted). A party cannot avoid summary judgment simply by resting
upon the mere allegations or denials of his pleadings. Bacchus Indus., Inc., 939 F.2d at 891.
III.

Discussion
Rodriguez moves for summary judgment in her favor as a sanction for the County

Defendants’ and other member of the BCSO’s failure to preserve evidence after the shooting. In
support of this argument, Rodriguez fairly argues that a party must preserve evidence that may
be relevant to future litigation, and that the County Defendants’ failures were so severe and
pervasive as to warrant summary judgment in her favor as a sanction. (Doc. 84) at 12.
Conversely, the County Defendants move for summary judgment on the excessive force
claim based on qualified immunity. (Doc. 91). The County Defendants argue the undisputed
facts of record establish that Coggins did not use unreasonable force in seizing Gonzalez, and
even if he did, the contours of the constitutional right at issue would not have put a reasonable
officer in July 2017 on notice that Coggins’ actions were unlawful. The Court considers these
motions together.

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A. Spoliation
Spoliation involves “the intentional destruction of evidence that is presumed to be
unfavorable to the party responsible for its destruction.” Moreno v. Taos Cnty. Bd. of Comm’rs,
587 Fed. Appx. 442, 444 (10th Cir. 2014) (citation omitted). A failure to create evidence does
not equate to spoliation. Harmon v. United States, 2017 WL 1115158, at *3 (D. Idaho 2017).
However, a sanction or other penalty may be appropriate where a party fails to create evidence in
violation of a statutory, regulatory, or internal policy obligation. See, e.g., Ramirez v. Pride Dev.
& Const., 244 F.R.D. 162, 164 (E.D.N.Y. 2007) (imposing adverse inference instruction as
penalty for defendant’s failure to create records pursuant to New York Labor Law); Smith v.
United States, 128 F. Supp. 2d 1227, 1223 (E.D. Ark. 2000) (imposing adverse inference
instruction as penalty for physician’s failure to dictate post-surgical notes, in violation of hospital
procedure).
Rodriguez identifies three categories of evidence the County Defendants failed to create
or preserve: 1) Coggins’ belt tape; 2) videotape of the scene; and 3) preservation of bloodstained
items at the scene. When taken together, Rodriguez argues, these failures show a sufficiently
pervasive pattern of prejudice to warrant summary judgment in her favor as a spoliation sanction.
As to the belt tape, the parties agree that BCSO policy requires officers to engage their
belt tapes prior to a traffic stop. Coggins claims he attempted to engage his belt tape, but was
unable to do so until after encountering Gonzalez in the backyard. Viewed in the light most
favorable to the County Defendants, as the non-movants, there exists a genuine issue of material
fact as to whether Coggins’ explanation for not engaging his belt tape earlier would satisfy a jury
and excuse his violation of BCSO policy. As such, the Court denies Plaintiffs’ motion for
summary judgment based on spoliation on this point.

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The parties further stipulate that the County Defendants created a 3D scan of the scene
rather than videotaping the scene. (Doc. 87) at UMF A; D.N.M.LR-56.1(b) (“All material facts
set forth in the Response will be deemed undisputed unless specifically controverted.”). Though
not expressly the same as videotaping the scene, a 3D scan satisfies the same purpose and is
likely more accurate than a videotape. As such, the Court finds the County Defendants did not
spoliate evidence or engage in sanctionable conduct with respect to the videotape issue. Thus,
the Court denies Plaintiffs’ Spoliation Motion on this point.
Finally, the County Defendants admit they are required to preserve and collect physical
and testimonial evidence for courtroom presentation. (Doc. 84) at UMF 16; (Doc. 87) at UMF
16. Detective Frederickson testified that he did not test the scene for blood evidence because
“[t]here’s only one person whose been shot here[; i]t’s [Gonzalez’s] blood, and we’re not going
to test it.” (Doc. 84-3) at 17 (Dep. Det. Frederickson at 98:25-99:8). Detective Frederickson
further testified that he decided not to preserve bloody cinderblocks because they would not be
helpful in the investigation. (Doc. 84) at UMF 31; (Doc. 87) at UMF 31.
However, Rodriguez pointed to no policy, procedure, practice, or other document
requiring officers to preserve all blood evidence or cinderblocks, or to have preserved the
cinderblocks in this case.3 As the movant, and the party seeking sanctions based on evidentiary
failures, Rodriguez bears the burden of establishing the violation. She cannot carry that burden
in this case.

Rodriguez tacitly advances Professor William Harmening to opine on BCSO’s investigation.
As discussed in the concurrently filed Memorandum Opinion and Order, Harmening lacks the
requisite qualifications to opine on any issue discussed in his expert report. Therefore, the Court
does not consider Harmening’s opinion.
3

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On the facts presented, the Court is not persuaded that the County Defendants spoliated
evidence. As an initial matter, the Court does not find sanctionable conduct based on the County
Defendants’ use of a 3D scan rather than videotape or their decisions with respect to preserving
physical evidence. With respect to Coggins use of the belt tape, the Court finds a genuine issue
of material fact precluding summary judgment, as a reasonable jury could accept or reject
Coggins’ statement that the belt tape would not engage when he tried to turn it on. While the
County Defendants admit they failed to follow internal procedure, and the Court finds it
troubling that BCSO concededly failed to adequately investigate the shooting, this failure does
not rise to the level of spoliation. Therefore, the Court denies Rodriguez’s motion for summary
judgment in her favor as a sanction for the County Defendants’ alleged spoliation of evidence.
B. Qualified Immunity
Even if Rodriguez could show spoliation, and could show that BCSO’s failure to
investigate and ultimate spoliation of evidence could be held against Coggins on the Fourth
Amendment issue, it does not matter if she cannot present some further evidence of what
occurred on July 4, 2017. At summary judgment, Rodriguez may not rest on her pleadings. The
Court must evaluate the County Defendants’ claim of qualified immunity based on the facts of
record. Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009).
“The doctrine of qualified immunity protects government officials from liability for civil
damages insofar as 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. 223,
231 (2009) (internal quotation marks omitted). When a defendant claims qualified immunity on
summary judgment, “the plaintiff must meet the heavy two-part burden of showing that (1) a
reasonable jury could find facts supporting a violation of the constitutional right, and (2) the

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constitutional right was clearly established at the time of the defendant’s conduct.” Farrell v.
Montoya, 878 F.3d 933, 937 (10th Cir. 2017) (internal citations, alterations, and quotation marks
omitted). Courts have discretion to decide the order in which to engage these two prongs.
Pearson, 555 U.S. at 236. If the plaintiff fails to make either showing, a court must recognize
the defendant’s qualified immunity. Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001).
“When a plaintiff alleges excessive force . . . , the federal right at issue is the Fourth
Amendment right against unreasonable seizures.” Tolan v. Cotton, 572 U.S. 650, 656 (2014);
see also Tennessee v. Garner, 471 U.S. 1, 7 (1985) (“While it is not always clear just when
minimal police interference becomes a seizure, there can be no question that apprehension by the
use of deadly force is a seizure subject to the reasonableness requirement of the Fourth
Amendment.” (internal citation omitted)) . “Determining whether the force used to effect a
particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the
nature and quality of the intrusion on the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396 (1989)
(internal quotation marks omitted) ; see also Garner, 471 U.S. at 9 (“The suspect’s fundamental
interest in his own life need not be elaborated upon. The use of deadly force also frustrated the
interest of the individual, and of society, in judicial determination of guilt and punishment.
Against these interests are ranged governmental interests in effect law enforcement.”). The
“proper application” of the Fourth Amendment’s reasonableness test “requires careful attention
to the facts and circumstances of each particular case, including [1] the severity of the crime at
issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others,
and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham,
490 U.S. at 396.

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“The ‘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.” Id. The
inquiry “is an objective one: the question is whether the officers’ actions are objectively
reasonable in light of the facts and circumstances confronting them, without regard to their
underlying intent or motivation.” Id. at 397 (internal quotation marks omitted). “The calculus of
reasonableness must embody allowance for the fact that police officers are often forced to make
split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about
the amount of force that is necessary in a particular situation.” Id. at 396-97.
Considering the three Graham factors here, the parties agree that Coggins was dispatched
to the car wash based on reports of suspicious activity, that the license plate affixed to the Monte
Carlo came back stolen, and that Gonzalez did not yield after Coggins activated his emergency
lights in the neighborhood, but instead drove in the oncoming traffic lane. The parties further
stipulate that Gonzalez exited his vehicle and ran south, yelling as he approached a residence,
and jumped a gate leading to the backyard of that residence. Perhaps most critically, Coggins
testified that he heard Gonzalez say “get back or I’ll shoot.” While Deputy Skartwed did not
hear this statement, Coggins’ testimony remains uncontroverted. Furthermore, the parties
stipulate that Gonzalez stood in the dark backyard, “bladed” (i.e., perpendicular) to Coggins, and
that Gonzalez “punched out” at Coggins with his right arm while holding a dark object in his
hand.4
Coggins reasonably suspected Gonzalez, based on the reportedly stolen license plate, of
motor vehicle theft (a felony) and display of a false registration document (a felony). These
constitute serious, and potentially dangerous, offenses that are construed in favor of Coggins. As

4

Gonzales did possess a firearm, though his firearm remained holstered.
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to the third prong, when Gonzalez ran from his vehicle, he attempted to evade arrest. This, too,
is construed in favor finding the force reasonable.
The second Graham factor is the most important. “A reasonable officer need not await
the glint of steel before taking self-protective action; by then, it is often too late to take safety
precautions.” Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008).
When an officer is threatened with a firearm – or reasonably believes that he has been so
threatened – that officer may use deadly force. Havens v. Johnson, 783 F.3d 776, 782 (10th Cir.
2015).
Even without considering Gonzalez’s purported statement (“get back or I’ll shoot”), the
reasonable officer in Coggins’ position would nonetheless believe that Gonzalez posed an
immediate threat to him, other officers, and the public. Viewing the facts as Coggins saw them,
Gonzalez fled a valid attempt at a traffic stop, drove the wrong way down a neighborhood street
around 2:00 in the morning, fled on foot into a neighborhood, and “punched out” at Coggins
while holding a dark object. The parties stipulate to this series of events. To the extent that
factual disputes exist, all factual disputes stem from whether Gonzalez in fact verbally threatened
Coggins and how BCSO conducted the investigation. These disputes are not material to the
Fourth Amendment issue. Thus, this factor as well weighs in favor of finding that Coggins’ use
of force was reasonable under Graham.
Viewing the evidence in the light most favorable to Rodriguez, a reasonable jury could
not conclude that Coggins’ use of force violated Gonzalez’ Fourth Amendment rights. The
Court notes that, in making this ruling, it does not opine on whether any set of facts could be
adduced or presented that would overcome qualified immunity. Rather, the Court’s decision
rests solely on the evidence presented in this case.

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Because Rodriguez failed to carry her burden of establishing that Coggins violated
Gonzalez’ Fourth Amendment right to be free from an unreasonable seizure, the Court need not
consider whether the right at issue was clearly established in July 2017. Rodriguez failed to
establish one of the requisite prongs to overcome qualified immunity. Therefore, the Court
concludes that Coggins is entitled to qualified immunity on the excessive force claim and grants
the County Defendants’ motion for summary judgment on that basis.
Having granted the County Defendants’ motion for summary judgment, the Court need
not address the Motion to Exclude and denies the same as moot.
Finally, having so concluded, the Court notes that the only remaining “count” in the
Second Amended Complaint is for punitive damages, which is not a substantive, stand-alone
claim. Therefore, the Court dismisses the punitive damages claim with prejudice because it is
derivative of the excessive force claim.
IV.

Conclusion
Rodriguez cannot establish that the County Defendants spoliated evidence, much less that

she should be granted summary judgment as sanction for that conduct. Qualified immunity
applies because Rodriguez cannot establish that Coggins’ use of force violated Gonzalez’ Fourth
Amendment right to be free from unreasonable seizure. Even if Rodriguez could show that the
County Defendants spoliated evidence, qualified immunity would still apply because an adverse
inference, without more, cannot satisfy Rodriguez’s burden at summary judgment.
IT IS, THEREFORE, ORDERED that
1. Plaintiffs’ Motion for Summary Judgment for Spoliation of Evidence, filed
November 2, 2018 (Doc. 84), is denied;
2. Defendants Board of County Commissioners of the County of Bernalillo, Manuel
Gonzales III, and Deputy Charles Coggins’ Motion for Partial Summary Judgment
No. I: Dismissal of the Estate’s Claim for Excessive Force in Count I, filed November
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29, 2018 (Doc. 91), is granted and that claim is dismissed with prejudice;
3. Count 2, Punitive Damages, is dismissed with prejudice as it cannot survive without
the excessive force claim;
4. County Defendants’ Daubert Motion Limit and Exclude Certain Testimony by Brian
McDonald, Ph.D., filed December 12, 2018 (Doc. 96), is denied as moot;
5. Judgment is entered in favor of the Defendants on the excessive force claim, Count I,
and the punitive damages claim, Count 2; and
6. This case is dismissed with prejudice.

________________________________
UNITED STATES DISTRICT JUDGE

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