Silversmith v. Martin et al

Filing 49

MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson granting 31 MOTION for Summary Judgment based on Qualified Immunity by Defendants'. (meq)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
______________________
BERNICE SILVERSMITH,
on behalf of herself and
HWEELDI SILVERSMITH,
Plaintiffs,
vs.

No. 1:20-CV-00566 WJ/GJF

SHAWN MARTIN,
ARTHUR M. CRUZ,
CHRISTIAN ROMAN, AND
UNKNOWN PERSONS 1-100,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT BASED ON QUALIFIED
IMMUNITY
THIS MATTER comes before the Court upon Defendants’ Motion for Summary Judgment
based on Qualified Immunity, filed February 4, 2021 (Doc. 31) (the “Motion”). The Motion seeks
summary judgment on the grounds that Defendants are entitled to qualified immunity, as probable
cause existed for the arrest of Plaintiff 1 (defined herein). Additionally, the Motion asserts that
Plaintiff 2 (defined herein) was not arrested and his affidavit should be stricken for lack of
competence. Plaintiffs’ response to the Motion contends that the stop itself was racially motivated
in violation of the Equal Protection Clause, Defendants had no probable cause to make an arrest
as to both Plaintiffs and said arrests were in violation of the Fourth and Fourteenth Amendments.
Having considered the parties’ arguments, the applicable law and the record, including the video
footage of the sobriety testing and arrest, the Court finds that the Motion is well-taken and should
be GRANTED.

UNDISPUTED MATERIAL FACTS
Plaintiffs in this case are Bernice Silversmith (“Plaintiff 1”) and Hweeldi Silversmith
(“Plaintiff 2”) (together, “Plaintiffs”). Both Plaintiffs are enrolled members of the Navajo Nation.
Doc. 1-8 at 2, ¶ 2. Plaintiff 1 is the adoptive mother of Plaintiff 2 and has cared for him since he
was a child. Id., ¶ 4. Plaintiff 2 is approximately 33 years old and disabled.1 Id., ¶ 3.
Defendants in this case are Shawn Martin, Arthur Cruz, and Christian Roman (collectively,
“Defendants” or “Named Defendants”), as well as unnamed individuals who, through amendment
of the Complaint, may be named as Defendants responsible for all or a portion of the alleged harm
suffered by Plaintiff (“Unnamed Defendants”). Doc. 31 at 2-3, ¶¶ 5 & 6. Defendant Martin is a
member of the Navajo Nation. Martin Affidavit, ¶ 3. Defendant Cruz is a member of the Acoma
Pueblo tribe. Cruz Affidavit, ¶ 2. Defendant Roman’s wife and children are members of the Navajo
Nation. Roman Affidavit, ¶ 2. Another Officer on the scene but not named as a Defendant, Calvin
Brown (“Officer Brown”), is a member of the Navajo Nation. Brown Affidavit, ¶ 1. At all times
relevant to the Complaint in this case, Defendants were law enforcement officers employed by the
New Mexico State Police (“NMSP”). Doc. 1-8 at 2, ¶ 5.
At approximately 2:20 a.m. on May 6, 2017, Plaintiff 1 was driving northbound on US
Highway 491 in McKinley County with Plaintiff 2 as a passenger. Doc. 31 at 3, ¶ 2. Plaintiff 1
was stopped at a sobriety checkpoint where Defendants were stationed. Id., ¶ 3; Martin Affidavit,
¶ 5. Every driver was stopped at the checkpoint. Id., ¶ 5; Martin Affidavit, ¶ 7. Defendant Martin
was the supervisor at the checkpoint. Id., ¶ 4; Martin Affidavit, ¶ 5.

1

Plaintiff 2 has been diagnosed with Fetal Alcohol Syndrome and is unable to manage his own affairs or
function independently as an adult. Doc. 1-8 at 2, ¶ 3.

2

After approaching the vehicle and observing Plaintiff 1, Defendant Cruz initiated a DWI
investigation and requested that Plaintiff 1 undergo a series of standard sobriety tests. Id. at 4, ¶
10-11; Cruz Affidavit, ¶ 13. Following the sobriety tests, Plaintiff 1 was detained and transported
to the NMSP station, id., ¶ 13-14; Cruz Affidavit, ¶ 21, and Plaintiff 2 was escorted to a family
member’s home, Doc. 31 at 6, ¶ 32. On the way to the NMSP station, Plaintiff 1 “nod[ded] off” in
the back of the police vehicle. Plaintiff 1 Affidavit, ¶ 9; Cruz Affidavit, ¶ 22.
At the NMSP station, Plaintiff 1 underwent two breathalyzer tests,2 a Drug Recognition
Evaluation (“DRE”) and further sobriety testing—the “walk and turn, one legged stand, and finger
to nose tests.” Doc. 31 at 4, ¶ 14, 16, 20; Roman Affidavit, ¶ 4, 9. Results for both breathalyzer
tests showed a 0.00% alcohol level. Id., ¶ 15; Cruz Affidavit, ¶ 23. Plaintiff 1 then signed a written
consent form for a blood draw carried out at the hospital, and pending the results of such blood
test, criminal charges were filed. Id. at 5, ¶ 22-23; Roman Affidavit, ¶ 15-16. The blood test results
eventually showed no alcohol or detectable drug content, and the charges were dismissed on
August 21, 2017. Id., ¶ 23; Roman Affidavit, ¶ 16.
DISPUTED MATERIAL FACTS
Defendant Cruz alleges that he smelled an alcoholic odor coming from Plaintiff 1 at the
traffic stop, and observed that she had “blood-shot watery eyes and she was somewhat incoherent.”
Cruz Affidavit, ¶ 11. Defendant Cruz asked Plaintiff 1 to undergo a field sobriety test, the results
of which caused Defendant Cruz to “form[] a reasonable belief that [Plaintiff 1] failed the field
sobriety test and could not safely operate a motor vehicle.”3 Id., ¶ 20.

2

Plaintiff verbally consented to submit to a breath test at the station. Cruz Affidavit, ¶ 21.
Defendant Cruz’s affidavit contends that Plaintiff 1 failed the Horizontal Gaze Nystagmus test, the walk
and turn test, and the one leg stand test. Cruz Affidavit, ¶ 17.

3

3

In the police station, Defendant Roman also smelled an odor of alcohol on Plaintiff 1 and
observed “bloodshot and watery eyes.” Roman Affidavit, ¶ 6. Following another sobriety test,
Defendant Roman “had reasonable suspicion that [Plaintiff 1] was under the influence of
depressants and was unable to operate a vehicle.” Id., ¶ 13. Plaintiff 1 told Defendant Roman that
she “did not have any physical impairments, but she took medications for diabetes, allergies, pain
pills, and supplements.” Id., ¶ 8.
Plaintiff 1 believes that Defendants Cruz and Roman could not have smelled alcohol
because, she claims, “I do not drink alcohol and I don’t smoke. I don’t believe in drinking.”
Plaintiff 1 Affidavit, ¶ 1. Plaintiff 1 claims instead that she consumed one and a half cans of Red
Bull.4 Id., ¶ 2. Further, Plaintiff 1 contends that she had “allergies,” but “didn’t have droopy eyes,
bloodshot or watery eyes.” Id., ¶ 5. Plaintiff 1 also disagrees that Defendants Cruz and Roman
formed a reasonable belief that she failed the sobriety tests, and claims, “I had on heels and was
standing on gravel and I didn’t stagger and lose my balance.” Id., ¶ 7.
Officer Brown was present at the checkpoint and claims to have recognized that Plaintiff
2 was disabled. Brown Affidavit, ¶ 9. Officer Brown also claims to have transported Plaintiff 2 to
his aunt’s home in Window Rock, Arizona following the detention of Plaintiff 1. Id., ¶ 11, 22; see
also Martin Affidavit, ¶ 11. Plaintiff 2 contends that Defendant Martin, not Officer Brown, drove
him home from the checkpoint, Plaintiff 2 Affidavit, ¶ 3, and that he was breathalyzed, restrained
with handcuffs, hit his head and sustained an injury on his leg when “pushed” into the “van” while
his mother was being put into the police cruiser, id., ¶¶ 4-5; Doc. 1-8 at 4, ¶ 13. Plaintiff 2 further
alleges that Defendant Martin “told me that I would never see my mom again,” claimed to be a

4

The Court takes notice that Red Bull is an energy drink which does not contain alcohol. RED BULL
ENERGY DRINK INGREDIENTS, Redbull.com (https://www.redbull.com/in-en/energydrink/red-bull-energydrink-ingredients-list) (last accessed April 8, 2021).

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“Peyote member,” and made other comments which made Plaintiff 2 cry while in the vehicle. Id.,
¶ 6-7. Finally, Plaintiff 2 alleges that he was delivered to his step-sister’s house, not his aunt’s. Id.,
¶ 10.
LEGAL STANDARD
I.

Summary Judgment

Summary judgment is appropriate where “there is no genuine issue as to any material fact
and the movant is entitled to judgment as a matter of law.” Bridges v. Yeager, 352 Fed. Appx. 255,
257 (10th Cir. 2009) (citing Fed. R. Civ. P. 56(c) (internal quotations omitted); see Self v. United
Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582 (1998). “[P]laintiff must
present affirmative evidence in order to defeat a properly supported motion for summary
judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S. Ct. 2505, 2514, 91 L.Ed.
2d 202 (1986) (emphasis added). “To withstand a motion for summary judgment, a plaintiff in a
§1983 suit challenging alleged racial discrimination in traffic stops and arrests must present
evidence from which a jury could reasonably infer that the law enforcement officials involved
were motivated by a discriminatory purpose and their actions had a discriminatory effect.”
Marshall v. Columbia Lea Regional Hosp., 345 F.3d 1157, 1168 (10th Cir. 2003) (emphasis
added).
II.

Qualified Immunity

“When [a] defendant seeks summary judgment on the basis of qualified immunity … the
plaintiff bears the initial burden of proving that: (1) the officer's actions violated a constitutional
right, and (2) this right was clearly established at the time of the conduct at issue.” 5 Amundsen v.

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The Court need not make a determination on whether the rights allegedly violated by Defendants were
clearly established, as both prongs of the qualified immunity analysis must be met and, as explained herein,
Plaintiffs have failed under the first prong—establishing that their constitutional rights were violated.

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Jones, 533 F.3d 1192, 1201 (10th Cir. 2008) (citing Nelson v. McMullen, 207 F.3d 1202, 1205
(10th Cir. 2000)) (This special standard for qualified immunity is “based on the importance of
resolving immunity questions at the earliest possible stage in litigation.”) (internal quotations and
citations omitted). A plaintiff’s failure to meet either burden entitles the defendant to qualified
immunity and a grant of summary judgment; however, if a plaintiff does meet this burden, then
the defendant must demonstrate that there are no genuine issues of material fact under a summary
judgment analysis. Id. at 1198.
“As the qualified immunity defense has evolved, it provides ample protection to all but the
plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341,
106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271 (1986). Qualified immunity recognizes the “need to protect
officials who are required to exercise their discretion and the related public interests in encouraging
the vigorous exercise of official authority.” Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). The
Harlow standard is specifically designed to “avoid excessive disruption of government and permit
the resolution of many insubstantial claims on summary judgment,” Malley, 475 U.S. at 341.
Qualified Immunity, when applicable, includes “an entitlement not to stand trial or face the other
burdens of litigation.” Behrens v. Pelletier, 516 U.S. 299, 306, 116 S.Ct. 834, 133 L.Ed.2d 773
(1996) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)).
III.

Probable Cause

In this context, “an arrestee’s constitutional rights were violated if the arresting officer
acted in the absence of probable cause …” Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir.
2012). Probable cause exists when an officer has sufficient information “to warrant a prudent man
in believing that the [driver] had committed or was committing an offense.” Beck v. Ohio, 379
U.S. 89, 91, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964). A defendant is entitled to qualified immunity
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if there was "arguable probable cause" to make an arrest. Id. "Arguable probable cause is another
way of saying that the officers' conclusions rest on an objectively reasonable, even if mistaken,
belief that probable cause exists." Stonecipher v. Valles, 759 F.3d 1134, 1141 (10th Cir. 2014).
"The proper inquiry in a § 1983 claim based on false arrest is not whether the person arrested
actually committed an offense, but whether the arresting officer had probable cause to believe that
he had." Crawford ex. rel. Crawford v. Kansas City, Kansas, 952 F. Supp. 1467, 1474 (D. Kan.
1997) (citing Dowling v. City of Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988)).
DISCUSSION
Plaintiffs bring the subject Complaint against Defendants pursuant to the Federal Civil
Rights Act of 1871, 42 U.S.C. § 1983, claiming racial profiling and unlawful search and seizure
in violation of the Fourth and Fourteenth Amendments.6 Plaintiffs specifically allege that (1)
assumptions about Native Americans, namely that they are commonly “drunk,” motivated the stop
and detention of Plaintiff 1 at the checkpoint, (2) Defendants improperly arrested Plaintiff 1,
charged Plaintiff 1 with a crime, and insisted on a warrantless blood test, and (3) Defendants
arrested Plaintiff 2 without probable cause. Plaintiffs offer no evidence beyond their own
allegations in the record; however, it is undisputed that Plaintiff 1, the driver of the vehicle, was,
in fact, not intoxicated by alcohol or detectable medication at the time of the arrest, as both her
breathalyzer and toxicology tests yielded negative results.
In response to the Complaint, Defendants assert qualified immunity, contending that
because Defendant (1) smelled of alcohol, (2) admitted to drinking alcohol an hour before the
arrest, (3) had “bloodshot watery eyes,” and (4) failed multiple field sobriety tests, probable cause

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Plaintiffs also elude to the use of “excessive force” when Plaintiff 2 was taken home after his mother’s
arrest, but the Complaint does not sufficiently allege an excessive force cause of action and refers to no
authority on the issue. See Doc. 1-8 at 7, ¶ 23.

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existed to make the arrest. See State v. Granillo-Macias, 2008-NMCA-021, ¶ 12, 143 N.M. 455,
176 P.3d 1187 (holding that an odor of alcohol emanating from the defendant, his lack of balance
at the vehicle, and his failure to satisfactorily perform field sobriety tests supported an objectively
reasonable belief that the defendant had been driving while intoxicated, and thus constituted
probable cause to arrest). Defendants offer corroborated affidavits undermining several of
Plaintiffs’ allegations, and the dash cam footage containing Plaintiff 1’s conversation with
Defendant Cruz, field sobriety test and transportation to the police station reveals that numerous
claims set forth in Plaintiffs’ affidavits are patently untrue.
I.

Plaintiffs fail to provide any basis for a racial profiling cause of action.

As a preliminary matter, the Court notes that Plaintiffs’ claim as to discrimination under
the Equal Protection Clause of the Fourteenth Amendment are founded on completely unsupported
notions of racial prejudice. Under such a claim, a plaintiff “must present evidence from which a
jury could reasonably infer that the law enforcement officials involved were motivated by a
discriminatory purpose and their actions had a discriminatory effect.” Marshall, 345 F.3d at 1168.
Neither Plaintiff here, however, offers any such evidence beyond the Complaint’s allegation that
Defendants “unfairly applied racial profiling to Plaintiffs, who are both enrolled members of the
Navajo tribe.” Doc. 1-8, ¶ 21. Plaintiffs’ affidavits, the only items offered in support of their
position, do not elude to racial discrimination and completely fail to refute the fact that every
driver, regardless of race, was stopped, checked and treated the same in circumstances where
probable cause existed to presume the driver was unable to safely operate a vehicle. Moreover,
these affidavits fail to refute or respond to the fact that all of the Named Defendants are Native
American or married to a Native American with Native American children, with most of them
being enrolled members of the Navajo Nation, the very same tribe as Plaintiffs. See Murray v. City
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of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995) (affidavits presented to show dissimilar treatment
did not provide any factual bases for inference that others were treated differently).
Though underlying discrimination allegations bleed into all of Plaintiffs’ other claims as
to unreasonable search and seizure, the Court finds that there is no evidentiary basis for Plaintiffs’
cause of action brought under the Equal Protection Clause. The Court accordingly grants
Defendants’ Motion as to these claims, see Doc. 1-8 at 6, ¶ 21, and turns to the substantive claims
of unlawful search and seizure.
II.

Plaintiff 1 has not demonstrated that her rights were violated.

The central issue before the Court as to Plaintiff 1 is whether Plaintiff 1 has proven that
Defendants violated her constitutional right against unlawful search and seizure. If this is
established, then the Court must determine whether any issue of material fact exists barring
Defendants’ entitlement to summary judgment—in other words, “whether the evidence presents a
sufficient disagreement to require submission to a jury,” or whether the evidence is “so one-sided
that one party must prevail as a matter of law” when viewed in a light most favorable to Plaintiff
1. Shero v. City of Grove, 510 F.3d 1196, 1200 (10th Cir.2007) (quotation omitted). As explained
below, Plaintiff 1 has not met her burden, and even if she did, Defendants have shown that no
genuine issue of material fact exists undermining their entitlement to summary judgment.
A. False Statements in Plaintiff 1’s Affidavit
Plaintiffs’ response to the Motion refers to Scott v. Harris, 550 U.S. 372 (2007). Plaintiffs
specifically appeal to the following language: “In evaluating a motion for summary judgment
based on qualified immunity, we take the facts in the light most favorable to the party asserting
the injury … [T]his usually means adopting … the plaintiff’s version of the facts” unless that
version “is so utterly discredited by the record that no reasonable jury could have believed him,”
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Id., at 378, 380 (internal quotations and citations omitted) (emphasis added). Of course, in Scott,
the “record” which so “utterly discredited” the plaintiff’s version of the facts was video evidence.
See id., at 380-381 (finding that because video evidence discredited the plaintiff’s allegations, the
Court of Appeals erred in relying on the plaintiff’s “visible fiction” as opposed to viewing the facts
in the light depicted by the videotape). Plaintiffs even contend, apparently citing Rhoads v. Miller
as analogous, that “[i]n Scott, the plaintiff’s testimony was discredited by a video tape … Here,
there is no videotape or similar evidence in the record to blatantly contradict … testimony.” Doc.
37 at 10 (citing 352 F. App’x 289, 291-92 (10th Cir. 2009)). It is a mystery that Plaintiffs’ made this
argument, as it appears from the record that that dash cam footage from the night in question was provided
to Plaintiffs’ counsel around February 18, 2021. See Doc. 38-1. Nonetheless, on March 15, Plaintiffs filed
their Response including this language. The Court must wonder if Plaintiffs’ counsel ever reviewed the
footage, as a reading of the Response would leave anyone with the impression that no footage existed or
that Plaintiffs merely chose to ignore its important contents entirely.
Nevertheless, the Court has reviewed the dash cam footage,7 and just as in Scott, such footage

“utterly discredit[s]” Plaintiff 1’s claims. See id.; see also Doc. 37 at 10. The Court notes the
following blatant misstatements set forth in Plaintiff 1’s sworn affidavit:
1. Affidavit: “I do not drink alcohol and I don’t smoke. I don’t believe in drinking. I
did not consume any alcoholic beverages on May 5, 2017.” Plaintiff 1 Affidavit, ¶
1. “I did not state that I had one alcoholic beverage.” Id., ¶ 4.
Video: Defendant Cruz asks Plaintiff 1 after some inaudible conversation: “so you
just left the bar and you had one beer, a Corona?” Plaintiff responds with an
understanding and affirmative nod, and when asked how long ago she drank the
7

Defendants draw the Court’s attention to the dash cam footage via an interpretive affidavit pursuant to
Stevens v. Water Dist. One of Johnson Cty., 561 F. Supp. 2d 1224, 1232 (D. Kan. 2008) (“Where the reply
affidavit merely responds to matters placed in issue by the opposition brief and does not spring upon the
opposing party new reasons for the entry of summary judgment, reply papers—both briefs and affidavits—
may properly address those issues.”) (citing Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1134 (7th
Cir. 1996)) (quotation omitted). The Court takes notice of the dash cam footage itself, as it is important to
understanding the events of the night in question and inseparable from Plaintiffs’ argument (though
Plaintiffs imply in their response that the video does not exist).

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beer, she responds: “about an hour ago.” Supplemental Cruz Affidavit, ¶ 4; Front
Camera Video, Attachment A, at 1:25. When in the back of the police vehicle,
Plaintiff also states: “He [Plaintiff 2] wanted to come and dance and I just had one
bottle and that was it.” Id., ¶ 12; Rear Camera Video, Attachment B, at 18:22. It
also appears that Plaintiff 1 throws a cigarette butt to the ground while speaking
with Defendant Cruz. Front Camera Video, Attachment A, at 1:27.
2. Affidavit: “I had on heels and was standing on gravel . . .” (referring to her failure
of the sobriety test). Plaintiff 1 Affidavit, ¶ 7.
Video: Plaintiff 1 is clearly not wearing heels, and furthermore, is standing on even,
paved road. See Front Camera Video, Attachment A, at 1:44.
3. Affidavit: “I didn’t stagger and lose my balance.” Plaintiff 1 Affidavit, ¶ 7.
Video: Plaintiff 1 stumbles several times, removing her arms from her sides for
balance, failing to place her feet directly in front of one another as she walked, and
placing her foot down for support and halting during the heel to toe test. See Front
Camera Video, Attachment A, at 3:32 to 4:08.
B. The Arrest of Plaintiff 1
Based on the dash cam footage, nearly every of Plaintiff 1’s contentions are not just
undermined, but rendered wholly untrue. See Scott, 550 U.S. at 379-380 (in considering deputy's
motion for summary judgment, courts had to view the facts in the light depicted by videotape); see
also Conner v. Rodriquez, 891 F. Supp. 2d 1228, 1230 (D.N.M. 2011) (court did not give
credibility to plaintiff’s assertion that he was lying passively and unconscious across seat of his
vehicle where video and audio evidence clearly contradicted that assertion). It is apparent that
there was a valid basis for Defendant Cruz’s reasonable belief that Plaintiff 1 was impaired;
Plaintiff 1 was not able to perform the tasks required in the sobriety test, she admitted to drinking
one alcoholic beverage and recently left a bar (which substantiates the claims that she smelled of
alcohol), and she “nodded off” in the back of the police vehicle on the way to the station. See
Plaintiff 1 Affidavit, ¶ 9. Plaintiff 1 relied on her own affidavit as evidence for the alleged
misconduct, but such affidavit is conclusory and entirely unsupported. Delange v. Dutra Const.
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Co., 183 F.3d 916, 921 (9th Cir. 1999) (Where the nonmoving party relies only on his own affidavit
to oppose summary judgment, “[he] cannot rely on conclusory allegations unsupported by factual
data to create an issue of material fact.”) (citing Hansen v. United States, 7 F.3d 137, 138 (9th Cir.
1993).
For these reasons, the Court finds that Plaintiff 1 smelled of alcohol and failed the sobriety
test, and that Defendants’ therefore had probable cause to make the arrest. Defendants are thus
protected by qualified immunity as to Plaintiff 1’s claims alleging that the sobriety testing and
arrest constitute a violation of the Fourth and Fourteenth Amendments, and even absent qualified
immunity, there is no genuine issue of material fact and thus, Defendants are entitled to summary
judgment as a matter of law. See Bridges, 352 Fed. Appx. at 257.
C. The Blood Test
Plaintiff 1’s last remaining claim is that the blood draw for toxicology testing was
unwarranted and therefore an unreasonable search and seizure because breathalyzer testing
administered by the police revealed 0.00% alcohol in Plaintiff 1’s system. This claim fails because
Defendants had probable cause to infer that Plaintiff 1 was intoxicated, and because Plaintiff 1
consented to the blood draw.
As Defendant Roman stated in his affidavit: “I had reasonable suspicion that Ms.
Silversmith was under the influence of depressants and was unable to operate a vehicle.” Roman
Affidavit at 2, ¶ 13 (emphasis added). It seems clear that Defendants in this case were aware that
either (1) the breathalyzer results were flawed, or (2) Plaintiff 1 was not, in fact, drunk on alcohol.
Nonetheless, the smell of alcohol, her behavior, and her failing of the sobriety tests understandably
caused Defendants to form a reasonable suspicion that she was under the influence of some

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substance, alcohol or otherwise, and unable to operate a vehicle. See Gallegos v. Vernier,8 2019NMCA-020, 458 P.3d 533, 540 (Ct. App. 2018) (“In New Mexico, it is a crime for a person to
drive a vehicle while under the influence of either ‘intoxicating liquor’ or ‘any drug to a degree
that renders the person incapable of safely driving a vehicle.’”) (quoting NMSA 1978, § 66-8102(A), (B) (2016)) (emphasis in original). As a result, Defendants obtained consent from Plaintiff
1 to undergo the blood test, consent which further undermines Plaintiff 1’s position on this claim.
A law enforcement officer ordering a blood test is often held to a higher standard than an
officer merely making an arrest. This is because probable cause is not enough, on its own, to
warrant a blood test absent “exigent circumstances sufficient to justify it.” Marshall v. Columbia
Lea Reg'l Hosp., 345 F.3d 1157, 1172 (10th Cir. 2003) (A blood test requires both “probable cause
and exigent circumstances . . .”) (emphasis in original). However, a determination on the presence
of exigent circumstances is not necessary where consent was given for the blood test. Amundsen,
533 F.3d at 1201 (reversing denial of summary judgment based on qualified immunity when the
plaintiff consented to the blood test, stating “a blood test conducted pursuant to valid consent does
not violate the Fourth Amendment.”); see also Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93
S. Ct. 2041, 36 L. Ed. 2d 854 (1973); Dubbs v. Head Start, Inc., 336 F.3d 1194, 1207 (10th Cir.

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While not controlling on this matter, Gallegos is remarkably similar to the instant case. Debra Gallegos,
the plaintiff, was stopped at a DWI checkpoint, reportedly smelled of alcohol, and had “bloodshot, watery
eyes.” Id. at 536. She denied drinking, but said she had a drink the night before and informed the defendantofficer that she had allergies. Id. She agreed to a field sobriety test, and when she failed such test, she was
taken to the police station and submitted to two breathalyzer tests, both of which showed an alcohol content
of 0.00%. Id. She was then transported to the hospital to have her blood drawn for toxicology testing, was
charged with DWI pending the results of the blood test, and the charges were dropped when the blood test
came back negative. Id. at 536-37. The court found that the defendants had probable cause to make the
arrest and that the detention and testing in the police station was not a constitutional violation; however, the
court also found that the blood draw was, in fact, a violation of the Gallegos’ Fourth Amendment right. See,
generally, id. This latter finding was based entirely on the fact that Gallegos did not consent to the blood
draw. Here, Plaintiff 1 did consent, marking the only real factual distinction between the instant case and
Gallegos.

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2003) (both finding that when consent is given for a blood test, the Fourth Amendment is not
violated). Here, Plaintiff 1 signed a valid written consent to the blood test ordered by Defendant
Cruz, and the test therefore raises no constitutional issue. See Cruz Affidavit, ¶ 26 (“Ms.
Silversmith signed a written consent for the blood draw and samples were taken.”); Roman
Affidavit, ¶ 15 (“Ms. Silversmith signed the consent form for a blood draw, and this was done [at]
the hospital.”); Plaintiff 1 Affidavit, ¶ 11 (“I did sign a written consent for the blood draw . . .”);
see also Amundsen, 533 F.3d at 1201 (“Because [the plaintiff] consented to the toxicology exams,
she failed to establish that her Fourth Amendment rights were violated.”).
Plaintiff 1 alleges that she was coerced to consent to the blood draw because she “was
scared and felt pushed into doing what [she] was told.” Plaintiff 1 Affidavit, ¶ 11. The Court does
not accept this claim for three reasons: (1) Plaintiff 1’s claims are vague and conclusory and do
not alert the Court to any specific factual actions taken by Defendants which could remotely
constitute coercion, see Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991) (“nonmovant’s
affidavits must be based upon personal knowledge and set forth facts that would be admissible in
evidence; conclusory and self-serving affidavits are not sufficient”) (emphasis added); (2) Plaintiff
1 has, thus far, not been truthful as to nearly every other claim which could conceivably create a
factual dispute, and no reasonable jury would rule in her favor on this issue; and (3) corroborated
affidavits and Plaintiff 1’s own admission clearly establishes that she consented to the blood test,
and Plaintiff 1 provides no authority to support her proposition that fear during an arrest constitutes
undue coercion sufficient to undermine consent, see Amundsen, 533 F.3d at 1201 (“Although [the
plaintiff] argues on appeal that her consent was not voluntary, she has not carried her burden of
showing she consented as a result of police coercion.”); United States v. Beckstead, 500 F.3d 1154,
1165 (10th Cir. 2007) (rejecting similar claim for lack of "reasoned argument").
14

The Court therefore finds that Defendants had probable cause to believe that Plaintiff 1
was under the effect of some substance and was incapable of safely driving a vehicle. Plaintiff 1
has failed to demonstrate that any of the Defendants violated her rights under the Fourth or
Fourteenth Amendments. Accordingly, Defendants are entitled to summary judgment based on
qualified immunity as to all of Plaintiff 1’s claims.
III.

Plaintiff 2 was not arrested.

As before, the Court’s analysis as to Plaintiff 2 centers around whether Plaintiff 2 can
demonstrate that he was unlawfully searched or seized in violation of his constitutionally sanctified
protections. Plaintiff 2’s affidavit makes allegations similar in nature to those made by Plaintiff
1—that is, allegations set forth only in an affidavit without any other support on the record.
A. Plaintiff 2’s Material Allegations
Initially, the Court notes that the Complaint and Plaintiff 2’s affidavit contain two types of
allegations: (1) material allegations, which have a material bearing on Plaintiff 2’s position that
his constitutional protections against unreasonable search and seizure were violated, and (2)
miscellaneous allegations, which are either conclusory in nature or insufficient to prove that
Plaintiff 2’s rights were violated. This section addresses Plaintiff 2’s material allegations, all of
which are undermined by video evidence.
Plaintiff 2’s material allegations are, in order, that (1) Plaintiff 2 was handcuffed, Doc. 18 at 4, ¶ 12, (2) Plaintiff 2 was given a breathalyzer, id., and (3) Plaintiff 2 was forced into a police
car, and hit his head and injured his leg when he hit the car’s door frame, id.
The Complaint establishes the timeline for these allegations, and this is important to note
because the Complaint claims that Plaintiff 2 was treated in a hostile manner and handcuffed, then
given a breathalyzer test, then patted down, and then put into the police car. See id; see also
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Plaintiff 2 Affidavit, ¶ 5. The Complaint also alleges that “[w]hile [Plaintiff 2] was being removed
from the scene, Defendant Cruz placed Silversmith under arrest, handcuffed her and placed her in
the patrol unit.” Id., ¶ 13 (emphasis added). The only interpretation of these material allegations is
that the bulk of Plaintiff 2’s claims—the breathalyzer, the handcuffing, the patting, the “pushing”
into the police vehicle and the alleged injuries from the push—took place either before or
simultaneous to Plaintiff 1’s arrest, handcuffing, and placement in the other police vehicle.
The video footage, however, destroys this “visible fiction.” Scott, 550 U.S. at 381. The
footage inside the other police vehicle, taken after Plaintiff 1 was arrested, handcuffed and placed
in the vehicle, briefly shows Plaintiff 2 standing next to the police talking with the officer and
Plaintiff 1. Indeed, Plaintiff 1 had been under arrest and in the police car for approximately 17
minutes. Plaintiff 2 has a relaxed demeanor at this time, and is not handcuffed, but rather, has his
hands in his jacket pockets. Rear Camera Video, Attachment B, at 17:15-18:07. Plaintiff 1 nods at
Plaintiff 2, clearly acknowledging by the conversation that the individual is Plaintiff 2, id., at 18:03,
and gives the officer directions to the home to which Plaintiff 2 was later taken, id., at 17:15-18:07.
The allegations as set forth in the Complaint are thus patently incorrect as to Plaintiff 2’s so-called
arrest, and the allegations in Plaintiff 2’s affidavit are entirely inconsistent.
Accordingly, the Court finds that because (1) the Complaint and affidavit allege that
Plaintiff 2 was handcuffed, breathalyzed, put into a police van and injured in the process prior to
or during Plaintiff 1’s arrest and placement into the other police cruiser, and (2) the series of events
is demonstrably impossible based on video footage, the material allegations fail to establish a
constitutional violation and are stricken under Connor. See Conner, 891 F. Supp. 2d at 1230 (no
credibility given to plaintiff’s assertions where video evidence contradicted assertions); see also
Scott, 550 U.S. at 379-380 (courts to view the facts in the light depicted by videotape). It would
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be absurd to infer any truth to these allegations when the underlying narrative, as to both Plaintiffs,
has been contradicted to this degree, and when Plaintiffs have failed to allege any facts in a way
that is consistent with the video footage or record in this case.
B. Plaintiff 2’s Miscellaneous Allegations
Plaintiff 2 makes other allegations which are insufficient, even taken as true, to support his
claim of unreasonable search and seizure under § 1983. These miscellaneous allegations are set
forth in the Complaint as follows: Defendant Martin told Plaintiff 2 that his mother was going to
“the Big House” and that he would never see her again. Doc. 1-8 at 4, ¶ 12. Defendant Martin then
drove Plaintiff 2 to Plaintiff 2’s sister’s house in Window Rock (Arizona), during which Defendant
“was verbally abusive.” Id. When Plaintiff 2 arrived at his sister’s house, he cried. Id.
The affidavit contains similar allegations; in addition to those facts alleged in the
Complaint, the affidavit states: Defendant Martin questioned Plaintiff 2 on the number of drinks
Plaintiff 1 had, and what kind of drinks. Id., ¶ 6. “He was really mean to me and made me cry.”
Id., ¶ 7. Defendant Martin said Plaintiffs were drunks. Id. He said he was a “Peyote member.”9
Id.10

9

It appears that “Peyote member” refers to a member of the Native American Church (NAC), also known
as Peyotism and Peyote Religion. NATIVE AMERICAN CHURCH, NORTH AMERICAN RELIGION,
Encyclopaedia Britannica (last updated April 21, 2019) (https://www.britannica.com/topic/NativeAmerican-Church/additional-info#history) (last accessed April 9, 2021).

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There are also factual allegations, such as claims concerning eye-glasses and the owner of the house,
which are completely immaterial and appear to be set forth in response to Defendants’ Motion for purposes
of creating factual disputes. See id., ¶ 11. These allegations have no bearing on whether Plaintiff 2 was
unlawfully searched and seized, and are thereby disregarded in the Court’s analysis. Plaintiff also alleges
that the officer who drove him home threatened to tighten his handcuffs. Plaintiff 2 Affidavit, ¶ 5. The
Court has already found that the video evidence refutes the fact the he was handcuffed at all, as alleged in
the Complaint. And even he was, Plaintiff 2 has not established that Defendants lacked probable to detain
him temporarily for purposes of safely taking him to the home.

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At the outset, it must be noted that not a single of the above claims is supported in the
record, and corroborated officer affidavits, including the affidavit of Officer Brown, not a Named
Defendant in this case, refute them further. Not even the identity of the officer who drove Plaintiff
2 home is correct. See Brown Affidavit, ¶ 11 (stating that because he was from the same town as
Plaintiff 2’s relative and had a disabled sister, he was asked to take Plaintiff 2 home); see also
Martin Affidavit, ¶ 11. Moreover, these allegations of “verbal abuse” are not probative of the issue
of whether Plaintiff 2 was arrested. They may lend to an excessive force cause of action,11 but their
unrealistic nature, in light of evidence significantly discrediting both of Plaintiffs’ affidavits, and
the fact that Plaintiffs failed to properly plead an excessive force claim, make them irrelevant to
Plaintiff 2’s burden. Indeed, taken as true, none of the miscellaneous allegations in Plaintiff 2’s
affidavit or the Complaint are sufficient for Plaintiff 2 to establish that a constitutional right was
violated.
C. No Arrest
Taken together, all of the facts alleged in the Complaint and Plaintiff 2’s affidavit are either
refuted by video evidence or insufficient to form a factual dispute capable of defeating the Motion.
In light of Defendants’ invocation of qualified immunity, Plaintiff 2 must show that his rights were
violated. Ordinarily, this would mean showing that the officers lacked probable cause for an arrest,
but here, Plaintiff 2 has not even shown that an arrest occurred. The reality as set forth in the form
of overwhelming evidence is that Plaintiff 2 was not arrested, but rather, taken home as a courtesy
in light of his disability and the unfortunate situation involving Plaintiff 1. Plaintiffs argue that the

11

It should be noted that none of the allegations rise to the level of excessive force, and Plaintiffs have
made no arguments as to the “objectively reasonable” standard applicable to excessive force claims brought
under the Fourth Amendment (the applicable constitutional amendment for excessive force claims where a
defendant alleges arrest without a warrant before a probable cause determination). See McCowan v.
Morales, 945 F.3d 1276, 1283 (10th Cir. 2019).

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transportation of Plaintiff 2 was an arrest, and Plaintiffs allege self-serving facts which could bring
the conduct of the Defendants into constitutional question. However, such allegations lack any
support, contradict corroborated affidavits, and do not demonstrate that any officer subjected
Plaintiff 2 to an unlawful search and seizure. See Martinez v. United States DOE, 170 Fed. Appx.
517, 523 (10th Cir. 2006) (“we find Mr. Martinez's self-serving affidavit, without other supporting
evidence, unpersuasive”); Salguero v. City of Clovis, 366 F.3d 1168, 1177 n. 4 (10th Cir. 2004)
(affidavit which included assertions that were not supported in record and did not demonstrate
corroborating evidence were insufficient for summary judgment purposes). This alone justifies
Defendants’ qualified immunity as to Plaintiff 2, but the Court also considered a significant flaw
with the affidavit in coming to its conclusion.
This flaw is the likelihood that the contents of Plaintiff 2’s affidavit are not based on
personal knowledge and that Plaintiff 2 is not competent to testify. See Hall, 935 F.2d at 1111 (to
survive summary judgment, a non-movant's affidavit must be based upon personal knowledge and
set forth facts that would be admissible in evidence; conclusory and self-serving affidavits are not
sufficient). The Court recognizes that the record suggests Plaintiff 2’s disability is severe and that
his affidavit was written, at least in significant part, by Plaintiff 1, which calls into question
whether the drafter of the affidavit actually had personal knowledge as to the conduct therein
described. Plaintiff 2 Affidavit, ¶ 1 (“I am disabled and my mother Bernice Silversmith helped me
with this affidavit.”). Though the Motion is granted due to the video footage undermining
Plaintiffs’ factual allegations, the Court finds also that the affidavit concerning Plaintiff 2 should
be stricken as it lacks the requirements of personal knowledge and competence which the affidavit
must show for such affidavit to be used to survive summary judgment. Fed. R. Civ. P. 56(c)(4)
(“An affidavit or declaration used to support or oppose a motion must be made on personal
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knowledge, set out facts that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated”) (emphasis added); see also United States
v. Odom, 736 F.2d 104, 112 (4th Cir. 1984) (A witness may be disqualified under Rule 601 . . .
[if] he does not have the capacity to recall, or . . . does not understand the duty to testify
truthfully.”).
For these reasons, the Court finds that Plaintiff 2 has failed to demonstrate that his rights
were violated under § 1983 and the burdens attendant to Defendants’ assertion of qualified
immunity. Furthermore, Defendants have shown that no genuine issue of material fact exists under
a summary judgment analysis as to Plaintiff 2.
CONCLUSION
While Plaintiffs have attempted to create factual disputes between their accounts of the
night in question and the accounts of Defendants, such disputes have been defeated by video
evidence or are irrelevant to Plaintiffs’ burden of establishing the violation of a constitutional right.
Even under a bare summary judgment analysis, Defendants prevail, as Plaintiffs “must do more
than simply show that there is some metaphysical doubt as to the material facts” and “[w]here 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. 574,
586-587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (emphasis added) (internal quotations omitted).
“Taken as a whole,” the supposed facts set forth in Plaintiffs’ Complaint and affidavits are cast in
the shadow of a series of lies revealed by video footage, and are representative of the type of
litigation for which qualified immunity exists.
For these reasons, and those otherwise explained in this Memorandum and Order, Plaintiffs
have failed to allege facts supporting a claim of racial profiling and have failed to demonstrate a
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violation of their rights under the Fourth or Fourteenth Amendments. Defendants are therefore
entitled to qualified immunity, and the Court hereby GRANTS the Motion for Summary Judgment
based on Qualified Immunity.
IT IS SO ORDERED.
_________________________________________
WILLIAM P. JOHNSON
CHIEF UNITED STATES DISTRICT JUDGE

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