Tierra Blanca Ranch High Country Youth Program et al. v. Felipe Gonzales

Filing 105

MEMORANDUM OPINION AND ORDER granting Defendants Motion for SummaryJudgment as to claims asserted by the Tierra Blanca Ranch High Country Youth Program, and as to Plaintiff Scott Chandlers claim for malicious prosecution, and DENIES Defendants Moti on for Summary Judgment in all other respects 91 ; denying 94 Request for time to conduct discovery and 97 MOTION for Sur-reply; denies 101 MOTION for Spoilation Sanctions against Defendant by District Judge M. Christina Armijo. (vv)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

TIERRA BLANCA RANCH HIGH COUNTRY
YOUTH PROGRAM, SCOTT CHANDLER,
COLETTE CHANDLER, AND BRYCE HALL,
Plaintiffs,
v.

15-cv-00850 MCA/KRS

FELIPE GONZALES,
Defendant.

MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Defendant Felipe Gonzales’
(Defendant’s) Motion for Summary Judgment. [Doc 91] Plaintiffs Tierra Blanca Ranch
High Country Youth Program (the Ranch or the Program), Scott Chandler (Scott), Colette
Chandler (Colette), and Bryce Hall (Hall) (collectively, Plaintiffs) responded and
requested additional discovery under Rule 56(d). [Doc. 94] After Defendant’s Reply was
filed [Doc. 95], Plaintiffs filed a Motion for Sur-Reply to Defendant’s Motion for
Summary Judgment. [Doc. 97] This matter is further before the Court on Plaintiffs’
Motion for Spoliation Sanctions against Defendant. [Doc. 101]
The Court has considered the parties’ submissions and the relevant law, and is
otherwise fully informed. For the following reasons, the Court GRANTS in part and
DENIES in part Defendant’s Motion for Summary Judgment [Doc. 91]. The Court
DENIES Plaintiffs’ Rule 56(d) Request for Time to Conduct Discovery [Doc. 94] and

Page 1 of 39

Plaintiffs’ Motion for Sur-Reply to Defendant’s Motion for Summary Judgment [Doc.
97].

The Court also DENIES without prejudice Plaintiffs’ Motion for Spoliation

Sanctions against Defendant. [Doc. 101]
I.

Background
In September 2015 Plaintiffs filed a Complaint alleging deprivation of their

constitutional rights under 42 U.S.C. § 1983.1 [Doc. 1] Plaintiffs alleged that Defendant
“used deceit and intimidation to obtain consent to search their business premises and
subject them, participants and staff to prolonged detention and interrogation with the
intent and result of depriving Plaintiffs of rights arising under the Fourth and Fourteenth
Amendments of the United States Constitution in violation of 42 U.S.C. § 1983.” [Doc.
1] Plaintiff Hall also alleged a violation of his First Amendment right to association.
[Doc. 1] An Amended Complaint was filed in December 2015. [Doc. 6 (Amended
Complaint)] Defendant answered [Doc. 10] and filed a Motion to Dismiss Plaintiff Bryce
Hall. [Doc. 11] Plaintiffs responded to the Motion to Dismiss [Doc. 19] and filed a
Motion to File Second Amended Complaint. [Doc. 30] On March 20, 2017, this Court
granted the Motion to File Second Amended Complaint and granted in part Defendant’s
Motion to Dismiss Plaintiff Bryce Hall, dismissing Hall’s First Amendment claim. [Doc.

1

“Every 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 Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .” 42 U.S.C. § 1983.
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75]

Discovery was stayed pending resolution of Defendant’s Motion for Summary

Judgment. [Doc. 63]
Plaintiffs allege in the Second Amended Complaint that the Program “is a privately
funded program for troubled youths that provides a simple ranch life with the goal of
helping troubled teenagers turn their lives around.” [Doc. 76, ¶ 11] They further allege
that Hall was enrolled in the Program at the time of the events at issue, Scott is an owner
and director of the Program and Colette owns a community property interest in some of
the Program. [Doc. 76, ¶¶ 5-7] At all material times, Defendant was employed by the
New Mexico State Police. [Doc. 76, ¶ 8]
The following facts are undisputed. In either January or May, 2013, Defendant
began investigating allegations of child abuse of youths enrolled in the Program. [Doc.
91, ¶ 2; Doc. 94, ¶ 2] In September 2013, a resident of the Program was killed in a car
accident while riding in a vehicle driven by a Program staff member. [Doc. 94, SAMF
¶ 4; Doc. 91, ¶ 10; Doc. 95] A few days after the accident, Defendant contacted Scott to
arrange to question people at the Ranch. [Doc. 91, ¶ 9; Doc. 94, ¶ 4, SAMF ¶ 5] The
parties disagree over whether Defendant made clear that he would also interview youths
about the child abuse allegations, but it is undisputed that Defendant arranged with the
Children, Youth and Families Department (CYFD) for CYFD personnel to accompany
him to the Ranch to interview youths there. [Doc. 91, ¶ 10; Doc. 94, SAMF ¶ 10, 13-14;
Doc. 95] On September 30, 2013, Defendant arrived at the Ranch with five other state
police officers as well as five staff members of CYFD. [Doc. 91, ¶ 14-15; Doc. 94,
SAMF ¶ 16] Plaintiffs allege that, over objections by the Chandlers and “[u]sing threats
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and coercion, CYFD and the New Mexico State Police entered the property and
interviewed the youths without permission or a warrant.” [Doc. 76, ¶ 47] Specifically,
Plaintiffs allege, on behalf of the Program and Scott, that
90. Neither Officer Gonzales nor CYFD had warrants or court orders
allowing them to enter the Tierra Blanca Ranch property and interview the
youths living there on September 30, 2013.
91. There were no exigent circumstances justifying entry onto the Tierra
Blanca Ranch property and the lengthy (seven hour) detention of persons
present there on September 30, 2013.
92. Officer Gonzales wrongfully obtained consent to entry [sic] onto the
Tierra Blanca Ranch property by intimidation, to wit, the presence of
Officer Gonzales and other members of the New Mexico State Police and
their official vehicles.
93. Officer Gonzales wrongfully obtained consent to entry [sic] onto the
Tierra Blanca Ranch property by deception, to wit, lying about the intended
scope of the youth interviews by falsely stating he intended to investigate
the car accident.
94. As a result of Officer Gonzales’ failure to obtain a warrant or lawful
consent to search of the premises and detention of the persons therein,
Plaintiffs were subject to various actions which have shut down or severely
limited the TBR Youth Program causing lost income and future earnings.
95. In addition to shutting down the program these actions permanently
damaged Scott Chandler’s name and reputation. This damage severely
limits his future earning capacity in any field of work.
[Doc. 76]
Count II is titled Ҥ 1983 Unlawful Detention in Violation of the Fourth
Amendment.” [Doc. 76] Plaintiffs allege, on behalf of Hall, that Defendant “illegally
entered onto the Tierra Blanca Creek Ranch property and detained Bryce Hall against his
will without warrants or other legal basis,” [Doc. 76, ¶ 102] and that “because of the
actions by [Defendant,] and/or others under his command or in the course of events
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instigated by him, Plaintiff Bryce Hall was forcibly sent away from the Program and
deprived of his constitutional right of association, and the care and guidance of the . . .
Program, which he was depending on to turn his life around and keep him out of trouble.”
[Doc. 76, ¶ 110] Plaintiffs further allege that after the interviews, CYFD “directed [the
parents of youths in the Program] to remove their youths from the . . . Program because
the Program was going to be shut down.” [Doc. 76, ¶ 60] The Second Amended
Complaint states that Scott was forced to “return the boys to their families due to the
untenable situation caused by the actions of CYFD following the September 30, 2013,
interviews.” [Doc. 76, ¶ 56]
II.

Discussion

A. Defendant’s Motion for Summary Judgment
Defendant now moves for summary judgment on the basis of qualified immunity.
[Doc. 91] Plaintiffs oppose the motion and move for additional discovery pursuant to
Rule 56(f). [Doc. 94]2 Summary judgment is appropriate “if the movant shows that there

2

Defendant first moved for summary judgment on December 14, 2016 [Doc. 51], before
the Second Amended Complaint was filed on March 21, 2017. [Doc. 76] After briefing
was complete, the parties agreed at a telephonic status hearing on September 6, 2017, that
the Motion for Summary Judgment should be considered in light of the facts alleged in
the Second Amended Complaint and Defendant’s Answer to it, and Defendant expressed a
need to modify his Motion so as to incorporate matters raised in the Second Amended
Complaint. Defendant’s request was unopposed. [Doc. 89] Hence, this Court denied the
initial Motion for Summary Judgment and gave permission for Defendant to file an
amended motion. [Doc. 89] This Memorandum Opinion and Order addresses
Defendant’s Motion for Summary Judgment subsequently filed on September 22, 2017
[Doc. 91] and related documents. [Doc. 94 (Response), Doc. 95 (Reply)] The Court will
consider only the arguments set forth in the September 22, 2017 Motion and related
documents, and will not consider arguments or statements of fact in the earlier motion.
However, to the extent both parties refer to exhibits appended to the December 2016
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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). Under this Rule, “the mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). Rather, “[o]nly disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the entry of summary judgment.”
Id. at 248. Generally, the moving party bears the burden of demonstrating the absence of
a genuine issue of material fact. See Shapolia v. Los Alamos Nat’l Lab., 992 F.2d 1033,
1036 (10th Cir. 1993) (citations omitted).

The moving party need not negate the

nonmovant’s claim, but rather must show “that there is an absence of evidence to support
the nonmoving party’s case.” Celotex v. Catrett, 477 U.S. 317, 325 (1986). Once the
moving party meets its initial burden, the nonmoving party must show that genuine issues
remain for trial “as to those dispositive matters for which it carries the burden of proof.”
Applied Genetics Int’l Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir.
1990) (citation omitted). The nonmoving party cannot rely upon conclusory allegations
or contentions of counsel to defeat summary judgment, see Pueblo Neighborhood Health
Ctrs., Inc. v. Losavio, 847 F.2d 642, 649 (10th Cir. 1988), but rather must “go beyond the
pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories,
and admissions on file, designate specific facts showing that there is a genuine issue for
trial.” Celotex, 477 U.S. at 324 (internal quotation marks and citation omitted). Upon a

motion and related documents [Doc. 51; Doc. 61; Doc. 71] in addition to exhibits
appended to Documents 91, 94, and 95, the Court will refer to those exhibits as well.
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motion for summary judgment, “[t]he court must consider factual inferences tending to
show triable issues in the light most favorable to the existence of those issues” and
“consider the record in the light most favorable to the party opposing the motion.”
United States v. O’Block, 788 F.2d 1433, 1435 (10th Cir. 1986). If the responding party
fails to properly address the movant’s assertion of fact as required by Rule 56(c), a
district court may “grant summary judgment if the motion and supporting materials—
including the facts considered undisputed—show that the movant is entitled to it.” Fed.
R. Civ. P. 56(e)(3).
The doctrine of qualified immunity shields government officials performing
discretionary functions from suit and liability for civil damages “unless their conduct
violates clearly established statutory or constitutional rights of which a reasonable person
would have known.” Eaton v. Meneley, 379 F.3d 949, 954 (10th Cir. 2004). “[W]hen a
defendant raises the defense of qualified immunity, the plaintiff has the initial two-part
burden to show that (1) a reasonable jury could find facts supporting a violation of a
constitutional right, which (2) was clearly established at the time of the defendant’s
conduct.” Sweat v. City of Las Cruces, No. 15-CV-0226 RB/SMV, 2016 WL 9087264, at
*3 (D.N.M. Apr. 21, 2016); see Cillo v. City of Greenwood Vill., 739 F.3d 451, 461 (10th
Cir. 2013). “The relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation.” Cortez v. McCauley, 478 F.3d 1108, 1114 (10th Cir. 2007)
(internal quotation marks and citation omitted). A plaintiff ordinarily demonstrates that a
law is clearly established by referencing a Supreme Court or Tenth Circuit decision on
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point, or showing that the clearly established weight of authority from other courts has
determined the law to be as the plaintiff maintains. Medina v. City & County of Denver,
960 F.2d 1493, 1498 (10th Cir. 1992). Only if the plaintiff satisfies both elements does
the defendant bear the normal burden of the summary judgment movant of “showing that
no material factual issues remain to defeat his claim of qualified immunity.” Pallottino,
31 F.3d at 1026 (quoting Losavio, 847 F.2d at 646).
Consistent with this framework, the Court will first examine whether Plaintiffs
have raised a question of fact as to whether Defendant violated their constitutional rights,
then address whether the law was clearly established such that a reasonable officer would
have known that his conduct was unlawful under the circumstances.
1. Whether Defendant Violated Plaintiffs’ Fourth Amendment Right to be Free of
Unreasonable Searches and Seizures
Defendant asserts that he is entitled to qualified immunity because Colette and/or
Scott consented to his entry to the Ranch, and, therefore, he did not violate Plaintiffs’
Fourth Amendment rights. Plaintiffs argue that any consent given by Colette or Scott
was coerced by Defendant’s trickery or demanding and threatening behavior.
Alternatively, they argue that questions of material fact preclude summary judgment as to
whether Scott or Colette voluntarily consented to Defendant’s entry onto the property.
[Doc. 94]
The Fourth Amendment provides:
[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no [w]arrants shall issue, but upon probable cause, supported by [o]ath
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or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
“It is a basic principle of Fourth Amendment law . . . that searches and seizures inside a
home without a warrant are presumptively unreasonable.” Kentucky v. King, 563 U.S.
452, 459 (2011) (internal quotation marks and citation omitted).

“But . . . this

presumption may be overcome in some circumstances because the ultimate touchstone of
the Fourth Amendment is ‘reasonableness.’” Id. (alterations, internal quotation marks,
and citation omitted). When the Fourth Amendment is implicated, the Government bears
the burden of demonstrating that a warrant was not required because an exception
applied. See United States v. Jeffers, 342 U.S. 48, 51 (1951) (stating that “the burden is
on those seeking the exemption [from the warrant requirement] to show the need for it”).
One such exception to the Fourth Amendment’s warrant requirement is voluntary
consent. When officers obtain voluntary consent to enter a home, a warrantless search or
seizure is not unconstitutional. See United States v. Lopez, 777 F.2d 543, 548 (10th Cir.
1985). To establish that there was voluntary consent, “(1) there must be clear and
positive testimony that consent was unequivoc[al] and specific and freely and
intelligently given; [and] (2) the Government must prove consent was given without
duress or coercion, express or implied.”

Id. (internal quotation marks and citation

omitted). “[T]he courts indulge every reasonable presumption against the waiver of
fundamental constitutional rights and there must be convincing evidence that such rights
were waived.” Id. (alterations, internal quotation marks and citation omitted). Consent
may be demonstrated by actions, rather than communicated verbally. See United States

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v. Payan, 905 F.2d 1376, 1379 (10th Cir. 1990) (consent given where the officer “asked
[the defendant], ‘would you mind opening the trunk,’ and [the defendant] had done so
without hesitancy or comment”).
Consent may be rendered involuntary, i.e., coerced, by use of “physical
mistreatment, use of violence, threats, threats of violence, promises or inducements,
deception or trickery.” United States v. McCurdy, 40 F.3d 1111, 1119 (10th Cir. 1994).
Other factors include the number of officers present and the physical and mental capacity
of the defendant. See United States v. Jones, 701 F.3d 1300, 1318 (10th Cir. 2012).
“[G]overnment actions are coercive when they imply an individual has no right to refuse
consent,” or that there will be “punitive ramifications” for refusal of consent. United
States v. Harrison, 639 F.3d 1273, 1279 (10th Cir. 2011) (internal quotation marks and
citation omitted). No one factor is dispositive; rather, the Court must assess the totality
of the circumstances.

United States v. Gay, 774 F.2d 368, 376 (10th Cir. 1985)

(“Whether a consent was voluntary or was the product of coercion or duress, express or
implied, is to be determined by the totality of the circumstances.”). Whether a person
gave voluntary consent is judged by an objective standard: “what would the typical
reasonable person have understood by the exchange between the officer and the suspect?”
United States v. Waupekenay, 973 F.2d 1533, 1535 (10th Cir. 1992) (internal quotation
marks and citation omitted). Thus, a plaintiff’s beliefs about the exchange are immaterial
to the extent they differ from what a reasonable person would have understood.
“[T]he test for existence of a ‘show of authority’ is an objective one: not whether
the citizen perceived that he was being ordered to restrict his movement, but whether the
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officer’s words and actions would have conveyed that to a reasonable person.”
California v. Hodari D., 499 U.S. 621, 628 (1991). For example, in United States v.
Iribe, our Tenth Circuit held that there was no coercion where, although there were five
officers present, the exchange between the officers and the consenting person was
“cordial and spoken in low volume[,] [n]o promises or threats were made in an attempt to
extract her consent[, and she] . . . signed a consent to search form[ which] contained a
clause discussing the right to refuse consent.” 11 F.3d 1553, 1557-58 (10th Cir. 1993).
In Wilson, the Court held that what began as a consensual encounter evolved into a
nonconsensual seizure when the officers made “statements about the legality of Wilson’s
refusal, and order[ed her] to go get her son or . . . they would do it for her, after
persistently asking her to do so.” Wilson v. Jara, 866 F. Supp. 2d 1270, 1298 (D.N.M.
2011), aff’d, 512 F. App’x 841 (10th Cir. 2013).
Finally, “when the prosecution seeks to justify a warrantless search by proof of
voluntary consent, it is not limited to proof that consent was given by the defendant.”
United States v. Matlock, 415 U.S. 164, 171 (1974). Instead, the prosecution “may show
that permission to search was obtained from a third party who possessed common
authority over or other sufficient relationship to the premises or effects sought to be
inspected.” Id. “[A] third party has authority to consent to a search of property if that
third party has either (1) mutual use of the property by virtue of joint access, or (2)
control for most purposes over it.” United States v. Rith, 164 F.3d 1323, 1329–30 (10th
Cir. 1999). The husband-wife relationship gives rise to such a presumption of authority.
Id. at 1330.
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The Facts Leading to Consent
The following facts are undisputed except as noted. On September 24, 2013,
Defendant contacted Scott seeking to interview Scott and residents of the Program and to
arrange a time for the interviews. While the parties agree that this call took place, they
disagree on whether it was clear from the call that Defendant wished to interview all of
the residents and whether Scott agreed that he could do so. [See Doc. 51-1, Gonzales
affidavit, ¶ 11; Doc. 94, pg. 46, Scott affidavit, ¶¶ 5, 6, 10] The transcript of the
September 24 call includes the following exchanges:
FELIPE GONZALEZ: Like I said, I would like to get everybody’s side
of the story as far as my investigation and their investigation because
unfortunately it’s [sic] all links together. They are kids at your ranch still.
SCOTT CHANDLER: I’m trying to understand. Like the guys involved
in the accident, is it regarding the accident? Or [sic] it regarding all this
other stuff?
FELIPE GONZALEZ: It’s going to regard both, unfortunately. Hello?
Are you there Mr. Chandler?
SCOTT CHANDLER: Yes.
[Doc. 51-2, Tr. 9/24/13, 23:15-24]
FELIPE GONZALEZ: Okay. Well unfortunately -- How many kids total
do you have in the ranch?
SCOTT CHANDLER: Thirteen.
FELIPE GONZALEZ: Oh, okay. I thought it was like twenty something.
SCOTT CHANDLER: No.
FELIPE GONZALEZ: Okay. Thirteen.

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[Doc 51-2, Tr. 9/24/13, 32:13-19] Elsewhere in the transcript, Scott refers to “pulling out
those guys,” apparently referring to selecting a few of the youth residents for interviews.
[Doc. 51-2, Tr. 9/24/13, 35:5-6] During the conversation, Scott voluntarily suggested
that the interviews take place at the ranch. [Doc. 51-2, Tr. 9/24/13, 35:1-7; Doc. 91, ¶ 12;
Doc. 94, ¶ 7] Defendant and Scott agreed that the interviews would take place on
Monday, September 30, 2013, at 10:00 a.m. [Doc. 51-2, Tr. 9/24/13, 35:9 – 36:16; Doc.
91, ¶ 13; Doc. 94, ¶ 8] Scott was not informed that Defendant would be accompanied by
CYFD personnel. [Doc. 94, SAMF ¶¶ 13-14; Doc. 95]
On the morning of September 30, 2013, Defendant, five other New Mexico State
Police officers, and five representatives of CYFD arrived at the Ranch to conduct
interviews. [Doc. 91, ¶ 14; Doc. 94, ¶ 9, SAMF ¶ 16 (stating number of officers and
CYFD personnel); Doc. 95] They were stopped at the property gate by Colette, who
called Scott on a speaker phone. [Doc. 91, ¶ 15; Doc. 94, ¶ 10, SAMF ¶ 18] Defendant
then spoke with Scott on speaker phone regarding the number of youths who would be
interviewed. [Doc. 51, Exh C (transcript of 9/30/13 call); Doc. 61, Exh. 6 (Colette
affidavit, ¶ 5); Doc. 91, ¶ 15; Doc. 94, ¶ 10, SAMF ¶ 23-27; Doc. 95] During the
conversation, Defendant stated to Scott that he wished to interview all of the residents of
the Program. [Doc. 51-3, Tr. 9/30/13, 2:17-3:21; Doc. 91, ¶ 16; Doc. 94, ¶ 11] The
exchange was as follows:

Page 13 of 39

SPEAKER 23: Pretty good. We’re out here at the ranch. I see there’s
some kind of misunderstanding here on what was supposed to happen
today. It was under my impression that we were both on the same page on
interviewing all thirteen children.
SCOTT: No. You told me when you called and you left a voicemail that
you needed to interview the boys that were from the wreck.
SPEAKER 2: No.
SCOTT: Not all the boys were in the wreck. You said, your words were,
“uniforms already interviewed those guys” but you had to follow up.
SPEAKER 2: With those kids including [sic], because that’s why I had
asked you how many kids total do you have at the ranch.
SCOTT: You told me you thought we had twenty kids and I told you we
had thirteen. You didn’t say you needed to interview all thirteen.
SPEAKER 2: I said I have that investigation that was given to me by Mr.
Cohen [the child abuse investigation] and I need to investigate those
allegations as well.
SCOTT: That’s why I asked you. I said, “so you’re asking these guys
from the wreck stuff about – “I told you, you were going to ask them only
stuff about the wreck and you said, no, you’ll be asking them stuff about
both.”
SPEAKER 2: Yeah. That was all thirteen kids.
SCOTT: My impression it was boys from the wreck. That was what I
understood and when you called you said you needed to talk to the boys
from the wreck.
SPEAKER 2: Okay. Obviously there’s a misunderstanding.
SCOTT: I wanted those guys so that they just went and did their ordinary
day and held back the guys you needed.
[Doc. 51-3, Tr. 9/30/13, 2:17-3:21]
3

Plaintiffs agree for purposes of this Motion that “SPEAKER 2” is Defendant “or another
officer working under his direction as lead investigator.” [Doc. 94, pg. 30; see Doc. 91,
¶¶ 15-19 (stating that the conversation transcribed is between Defendant and Scott)]
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During the conversation, Defendant stated that Scott could not be present while
the interviews with the youths took place because Scott was “listed as a suspect.” [Doc.
51-3, Tr. 9/30/13, 5:20-25; Doc. 91, ¶ 17; Doc. 94, ¶ 12, SAMF ¶ 25] He further stated
that no one other than law enforcement or CYFD personnel could be in the room when
interviewing victims of child abuse. [Doc. 51-3, Tr. 9/30/13, 6:4-6; Doc. 91, ¶ 17; Doc.
94, ¶ 12; SAMF ¶ 25] Defendant offered to retrieve the youth residents who were
working offsite and bring them to the Ranch to start the interviews, but Scott stated that
he could send somebody to get them. [Doc. 51-3, Tr. 9/30/13, 7:4-12; Doc. 91, ¶ 18;
Doc. 94, 13, SAMF ¶¶ 26-27]
At the end of the conversation the phone was passed back to Colette. [Doc. 91,
¶ 19; Doc. 94, ¶ 14]

Defendant states that “[f]ollowing [Colette] concluding her

conversation with [Scott], [Defendant] asked, ‘So I guess for now, are we able to go in
and out?’ to which [Colette] responded, ‘yeah we can go in and . . . yeah. Let’s just get it
going.’” [Doc. 91, ¶ 20; Doc 51-4 (Conv. w/ Colette), Tr. 2, 9/30/13, 6:8-16] Plaintiffs
dispute that the transcript cited by Defendant supports this assertion and state that “[i]t is
impossible to discern from the transcript provided who was speaking to [Colette] . . . and
the context of the discussion is not clear from the transcript.”

[Doc. 94, ¶ 15]

Nevertheless, Plaintiffs do not dispute that Colette ultimately gave permission for
Defendant and the others to enter the property. [Doc. 94, SAMF ¶ 30] Thus, the precise
statement permitting access—and the parties’ dispute over it—is immaterial at this
juncture.

Page 15 of 39

A few hours after Defendant’s arrival and after Defendant and some officers ate
lunch provided by Colette, the youths returned to the Ranch and interviews began. [Doc.
91¶ 23; Doc. 94, ¶ 17] Hall was one of the residents interviewed. [Doc. 91, ¶ 24; Doc.
94, ¶ 18] Defendant did not personally interview Hall. [Doc. 91, ¶ 25; Doc. 94, ¶ 19]
With this background in mind, the Court will examine each count in the Second
Amended Complaint in turn.
Count I: The Program’s and Scott Chandler’s Claims for § 1983 Unlawful Entry and
Unreasonable Search and Seizure and Malicious Prosecution in Violation of the
Fourth and Fourteenth Amendments.
Claims by the Program
As a preliminary matter, the Court notes that, in the Second Amended Complaint,
Plaintiffs assert a Fourth Amendment claim on behalf of the Program. [Doc. 76] It is
undisputed that the Program is a sole proprietorship owned by Scott. [Doc. 76, ¶ 9; Doc.
91, ¶ 1; Doc. 94, ¶ 1] Defendant argues that the Program’s claim must be dismissed
because, as a sole proprietorship, the Program has no legal identity separate from Scott.
[Doc. 91, pg. 7] See Two Old Hippies, LLC v. Catch the Bus, LLC, 784 F. Supp. 2d
1221, 1225 (D.N.M. 2011) (stating that a sole proprietorship “has no legal identity
separate from the proprietor himself”); 1 William M. Fletcher, et al., Cyc. of the Law of
Corp. § 23 (stating that “[a] sole proprietorship is merely a designation assigned to a
manner of doing business by an individual who is solely responsible for all of the debts
and obligations of the business; no legal distinction exists between the individual and the
business.”). Plaintiffs do not respond to this argument. [Doc. 94] The Court agrees with
Page 16 of 39

Defendant that, because it is indistinct from its owner, a sole proprietorship “does not
have standing to sue in its own right.” Geneva Coll. v. Sebelius, 929 F. Supp. 2d 402,
429 (W.D. Pa. 2013), on reconsideration in part (May 8, 2013); Crane Const. Co. v.
Klaus Masonry, 71 F. Supp. 2d 1138, 1144 (D. Kan. 1999) (stating that “a sole
proprietorship is unable to bring suit in its own name”). Hence, to the extent the Program
asserts any claims, they must be dismissed.
Whether the Fourth Amendment Applies
Defendant next argues that the Fourth Amendment’s protections do not apply here
because “neither a search or seizure of the property nor a search or seizure of Mr.
Chandler’s person was conducted on September 30, 201[3].”

[Doc. 91, pg. 10]

However, in Payton, the Supreme Court held that “‘the Fourth Amendment has drawn a
firm line at the entrance to the house.’”4 United States v. Reeves, 524 F.3d 1161, 1165
(10th Cir. 2008) (quoting Payton v. New York, 445 U.S. 573, 590 (1980)); United States
v. Lindgren, No. CRIM.A. 11-10019-03, 2013 WL 147369, at *6 (D. Kan. Jan. 14, 2013)
(“The physical entry of the home is the chief evil against which the wording of the Fourth
Amendment is directed.” (internal quotation marks and citation omitted)). Moreover,
“[t]he Supreme Court has rejected the proposition that the Fourth Amendment offers no

4

Neither party indicates whether the Chandlers lived at the Ranch. In Plaintiffs’ Second
Amended Complaint, they state the Ranch was the Chandlers’ “business premises” and
that Hall “resided” there. [Doc. 76, ¶¶ 1, 41] Hence, it appears that only Hall lived at the
Ranch. In any case, “[t]he Warrant Clause of the Fourth Amendment protects
commercial buildings as well as private homes. . . . Th[e Supreme] Court has already
held that warrantless searches are generally unreasonable, and that this rule applies to
commercial premises as well as homes.” Marshall v. Barlow’s, Inc., 436 U.S. 307, 311–
12 (1978).
Page 17 of 39

protection against government entry into a home unless the entry is to conduct a ‘search’
for or ‘seizure’ of the fruits or instrumentalities of crime.” Walsh v. Erie Cty. Dep’t of
Job & Family Servs., 240 F. Supp. 2d 731, 744 (N.D. Ohio 2003) (citing Camara v.
Municipal Court, 387 U.S. 523, 526 (1967)). Consistent with this principle, our Tenth
Circuit has stated that, “[o]f course, a police officer’s mere entry or trespass into a home
without consent is enough to constitute a search, often referred to in the case law as an
‘unlawful entry,’” Reeves v. Churchich, 484 F.3d 1244, 1258 (10th Cir. 2007), and that
“if an individual’s decision to open the door to his home to the police is not made
voluntarily, the individual is seized inside his home.” Reeves, 524 F.3d at 1168. Hence,
Defendant’s argument that the Fourth Amendment simply does not apply here is
unavailing. See Lopkoff v. Slater, 898 F. Supp. 767, 773 (D. Colo. 1995) (stating that the
“[d]efendants have cited no authority, and this Court has found none, that supports [the
d]efendants’ argument that entry into an apartment without a warrant is justified if it does
not result in a person being arrested or taken into custody”).
Whether Colette or Scott Consented to Entry
The next question is whether Plaintiffs have shown a question of fact surrounding
whether Colette or Scott voluntarily consented to Defendant’s entry to the Ranch. If, as
Defendant argues, the undisputed facts show that Colette and Scott voluntarily consented
to Defendant’s entry, then there was no constitutional violation and the Court’s inquiry is
complete. In that case, Defendant would be entitled to qualified immunity. If, on the
other hand, Plaintiffs demonstrate that there is a factual question precluding summary
judgment as to whether Colette’s and Scott’s consent was coerced, then the Court must
Page 18 of 39

go on to determine whether the constitutional right allegedly violated was clear such that
Defendant would have known his conduct was illegal.
The parties devote substantial portions of their arguments to whether Defendant
misrepresented his intent to Scott in the days leading up to September 30, 2013, and to
what Scott knew about Defendant’s investigation and when he knew it. The parties argue
over what was said during the September 24, 2013 call, whether there was a second call
on September 27 or 28, 2013, what was said during the second call, and what Scott knew
about the scope of the interviews before September 30, 2013. [Doc. 91, pg. 11; Doc. 94,
pg. 26-29] Both parties’ reliance on these calls, however, is misplaced.
To the extent Defendant relies on Scott’s consent during the September 24, 2013
phone call to Defendant’s entry to the Ranch, such consent, if any, is relevant only to the
extent it informs the Court’s analysis of Colette and Scott’s consent on September 30,
2013 at the gate to the Ranch. This is so because it is clearly established that consent
may be withdrawn. See United States v. Torres, 663 F.2d 1019, 1027 (10th Cir. 1981)
(stating that “[t]he question as to whether [consent] was [withdrawn] is . . . a factual
one”). Thus, even if Scott had agreed to the interviews during calls on September 24th or
28th, viewing the facts in the light most favorable to Plaintiffs, it is clear that Colette
stopped Defendant and the other officers and CYFD personnel at the gate to the Ranch
because the circumstances surrounding their entry differed from her expectation based on
the calls. [Doc. 91, ¶ 15 (Defendant stating that he was “not permitted entrance onto the
property” when he arrived at the Ranch); Doc. 94, ¶ 10, SAMF ¶ 18; Doc. 19] Similarly,
Scott expressed several times during the speaker phone call on September 30, 2013, that
Page 19 of 39

he had not given consent for Defendant to interview all of the youths at the Ranch about
both the accident and the child abuse allegations. [Doc. 94, SAMF ¶ 27; Doc. 95; Doc.
51-3, Tr. 9/30/13] Hence, viewing these facts and their implications in Plaintiffs’ favor,
any consent given during the phone calls was withdrawn at the gate. See Manzanares v.
Higdon, 575 F.3d 1135, 1143 (10th Cir. 2009) (recognizing that “consent which waives
Fourth Amendment rights may be limited, qualified, or withdrawn” (internal quotation
marks and citation omitted)); 4 Wayne R. LaFave, Search & Seizure § 8.2(f) (5th ed.)
(“A consent to search is not irrevocable, and thus if a person effectively revokes his prior
consent prior to the time the search is completed, then the police may not thereafter
search in reliance upon the earlier consent.”)
For their part, Plaintiffs rely on the September 24, 2013 call to argue that
Defendant used “trickery” to obtain Scott’s consent to access the property, and cite
Harrison, in which the Tenth Circuit stated that “the Fourth Amendment can certainly be
violated by guileful as well as by forcible intrusions into a constitutionally protected
area.” 639 F.3d at 1278–79 (internal quotation marks and citation omitted). Noting that
it has “repeatedly held that deception and trickery are among the factors that can render
consent involuntary,” the Court went on to state that whether the Government
“misrepresent[ed] the nature of th[e] investigation” is considered as part of the totality of
the circumstances surrounding consent to search. Id.
Plaintiffs’ reliance on Harrison is misplaced because at the time Scott and Colette
agreed to allow Defendant onto the Ranch property, any misrepresentation or obfuscation
about the nature of the investigation had been eliminated. Plaintiffs do not dispute that
Page 20 of 39

Defendant told Scott, while the phone was on speaker, that 1) he wished to interview all
of the youth residents, 2) the investigation was about both the accident and the child
abuse allegations, and 3) Scott was a suspect. [Doc. 61, pg. 10, ¶ 19; Pg. 11, ¶¶ 20, 24;
Doc. 51-3, Tr. 9/30/13, 5:20-25; 2:17-3:21] Hence, assuming that Defendant concealed
or misrepresented these facts prior to September 30, 2013, they were revealed during that
phone call. Colette and Scott were therefore fully informed as to the nature of the
investigation by the end of the call. The Court concludes that the telephone calls leading
up to Defendant’s arrival at the Ranch gate are relevant only to the extent they had an
impact on the voluntariness of either Colette’s and/or Scott’s consent on September 30,
2013.
Plaintiffs argue that Colette’s and Scott’s consent was coerced because of the
number and type of officers present and because Defendant “demanded” access to the
property and threatened to take custody of all of the youth residents. [Doc. 94, pg. 57,
Colette affidavit, ¶¶ 9, 12, 14; Doc. 94, pg. 46, Scott affidavit, ¶¶ 25-27; Doc. 94, pg. 46,
Scott affidavit, ¶¶ 18, 19, 25, 26] After review of the record, the Court finds that
questions of fact preclude summary judgment on this issue. First, it is undisputed that
Defendant was accompanied by five other officers and five CYFD personnel, whereas
Colette and Scott were expecting only Defendant and “a couple of” officers. [Doc. 94,
pg. 57, Colette affidavit, ¶¶ 3, 5; Doc. 91, ¶ 14; Doc. 94, ¶ 9, SAMF ¶¶ 13, 14; Doc. 95]
It is also undisputed that Defendant did not tell Scott that CYFD personnel would be
present to interview the youths. [Id.]

Page 21 of 39

Second, Plaintiffs submitted affidavits by Scott and Colette stating that Defendant
“demanded” entry to the Ranch and that, because of Defendant’s conduct, they did not
feel free to refuse consent. [Doc. 94, pg. 46, Scott affidavit; Doc. 94, pg. 57, Colette
affidavit] Both Scott and Colette state that Defendant threatened to take the youths away
from the Ranch if they did not consent. [Doc 94, pg. 57, Colette affidavit, ¶¶ 9, 12, 14;
Doc. 94, pg. 46, Scott affidavit, ¶¶ 18, 19, 25, 26; see Doc. 94, SAMF ¶¶ 28, 30]
Defendant does not dispute the latter assertion in his Reply as required by Local Rule
56.1(b), which provides that “[t]he Reply must contain a concise statement of those facts
set forth in the Response which the movant disputes or to which the movant asserts an
objection” and that “[e]ach fact must be lettered, must refer with particularity to those
portions of the record upon which the movant relies, and must state the letter of the nonmovant’s fact.” Instead, he states that Plaintiffs’ additional facts “do not controvert
Defendant’s material facts which Defendant relies upon for summary judgment” and that
“Plaintiffs’ facts are therefore immaterial.” [Doc. 95, pg. 1] “An assertion of relevancy,
without more, does not specifically dispute an enumerated undisputed fact but rather
constitutes argument of counsel.” Martinez v. Romero, No. CIV-11-785 ACT/WDS,
2012 WL 13071884, at *3 (D.N.M. Nov. 19, 2012).
Instead, Defendant argues elsewhere in his Reply that Plaintiffs’ assertions that he
threatened to remove the youths are contradicted by the record and points to the transcript
of his conversation with Scott on the speaker phone. [Doc. 95, pg. 10-11; Doc. 51-3] He
argues that “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
Page 22 of 39

adopt that version of the facts.” [Doc. 95, pg. 3 (quoting Thomson v. Salt Lake City, 584
F.3d 1304, 1312 (10th Cir. 2009) (alterations omitted)].
Defendant’s argument is unavailing for several reasons. First, it is unclear from
the transcripts whether they encompass the entirety of conversations at the gate. For
instance, none of the transcripts includes a greeting between Defendant and Colette,
suggesting that there is a portion of their interaction not captured. Similarly, there is no
evidence of how much time, if any, elapsed between the conversation with Scott on the
telephone and the subsequent conversation with Colette, and what, if anything, was said
during that time.

[See Doc. 51-3, 51-4]

Moreover, a third transcript provided by

Plaintiffs is unclear as to the identity of the speakers and the time the conversation
occurred.

[Doc. 61, pg. 59 (denoting the speakers as “Felipe Gonzales,” “Mrs.

Chandler,” and “Male2,” but also indicating that it is unclear whether one of the males
speaking is Defendant)] Hence, the Court cannot find, based on this record, that the
transcripts are complete representations of the exchanges at the gate. Cf. Seidel v.
Crayton, No. CV 15-00925-MV/CG, 2017 WL 4737254, at *7 (D.N.M. Oct. 19, 2017)
(stating that a plaintiff’s assertions are not “blatantly contradicted by the record” where
“the video d[id] not clearly show whether [the officer] applied any force to [the plaintiff
because t]he placement of the camera and the location of the [p]laintiffs’ SUV obscure[d]
the positions of [the officer’s] hands and arms and [the plaintiff’s] body”).
Second, Defendant implies that an affidavit submitted by a nonmovant does not
constitute evidence in the record. But “[a]s long as an affidavit is based upon personal
knowledge and sets forth facts that would be admissible in evidence, such averment of a
Page 23 of 39

party is legally competent to oppose summary judgment, notwithstanding its inherently
self-serving nature.”

Williams v. Shields, 77 F. App’x 501, 503 (10th Cir. 2003)

(alteration, internal quotation marks, and citation omitted); see Hall v. Bellmon, 935 F.2d
1106, 1111 (10th Cir. 1991) (stating that affidavits may create a question of fact and that
“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”); Fed. R.
Civ. P. 56(c)(1) (stating that a nonmovant may support its assertions of fact by referring
to “materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, . . . .” (emphasis added).

In Williams, for

example, an affidavit by the defendant stating that he was released from prison on July
11, 2000, was valid to establish a question of material fact even though it was
contradicted by other evidence in the record, such as prison records, showing that he was
released on July 10, 2000. 77 F. App’x at 503; see Hall v. Queensbury Union Free Sch.
Dist., 147 A.D.3d 1249, 1252 (N.Y. App. Div. 2017) (“While the affidavit . . . was
contradicted by other evidence in the record, such contradictions presented credibility
determinations, which [the] Supreme Court should have left to be resolved by the trier of
fact”).
Finally, cold transcripts do nothing to resolve the conflict in the parties’
characterization of Defendant’s conduct and the encounter as a whole, as it is impossible
to determine the tone and tenor of the conversation from the text. See United States v.
Williams, No. 2:09-CR-27-FTM-29DNF, 2010 WL144870, at *5 (M.D. Fla. Jan. 8, 2010)
(“The disadvantage of reviewing a ‘cold’ transcript is that a court is unable to discern the
Page 24 of 39

nuances of language, tone, inflection and demeanor.”); cf. Benavidez v. Shutiva, 2015NMCA-065, ¶ 27, 350 P.3d 1234 (concluding that “interpretation of [a] video gives rise
to a dispute over material facts” where the officers’ and defendant’s conduct depicted in
the video could be interpreted several ways).
The Court concludes that Plaintiffs have demonstrated that a material question of
fact exists as to whether Defendant’s statements, conduct, or demeanor, under the totality
of the circumstances including the number and type of officers and interviewers present
and the alleged threat to remove youths from the Ranch, unlawfully coerced Colette’s or
Scott’s consent for his entry onto the Ranch property. Cf. Walsh, 240 F. Supp. 2d at 748
(holding that “a reasonable jury could find that any putative consent given by Mr. Walsh
was coerced by references to removal of the children if opposition continued; detention
of the family; frisk of the father; the number, office, and power of the county officials and
city officers present; and the apparent (or, at least threatened) arrest of Mr. Walsh for
obstruction of official business” (emphasis added)); Adelman v. Smith, No. 2:13-CV0096-ABJ, 2015 WL 11090921, at *9 (D. Wyo. Aug. 10, 2015) (“Because of the
disparity in the [d]efendants’ and [p]laintiffs’ depiction of events, which the audio tape
does not resolve, the [c]ourt finds that there are disputed facts, specifically whether [the
plaintiff] gave her consent for [the d]efendant to enter [her] home, which a reasonable
juror could resolve in favor of either side on the issue of whether [the d]efendants
violated [the p]laintiffs’ Fourth Amendment right to be free from unreasonable

Page 25 of 39

searches.”) reconsideration denied, No. 2:13-CV-0096-ABJ, 2015 WL 11108640 (D.
Wyo. Oct. 30, 2015).5
Count II: Hall’s Claim for § 1983 Unlawful Detention in Violation of the Fourth
Amendment
Defendant argues that 1) he is not the appropriate defendant for Plaintiff Hall’s
Fourth Amendment claim because he did not personally interview Hall, and that 2) “the
undisputed facts in this case demonstrate that the interview of Plaintiff Hall was a

5

The parties devote much of their briefing to the issue of Scott’s consent. They do not
address the significance, if any, of the undisputed fact that Scott was not present at the
gate. “[Supreme Court] cases firmly establish that police officers may search jointly
occupied premises if one of the occupants consents.” Fernandez v. California, 134 S. Ct.
1126, 1129 (2014) (footnote omitted); see United States v. Garcia, 861 F. Supp. 996,
1004 (D. Kan. 1994) (discussing Matlock, 415 U.S. 164, and stating that in Matlock “the
joint occupant had her own right to consent to a search of the premises and that the
defendant had assumed the risk that she might exercise that right while he was away from
the residence.”). However, “‘a physically present inhabitant’s express refusal of consent
to a police search is dispositive as to him, regardless of the consent of a fellow
occupant.’” United States v. Cos, 498 F.3d 1115, 1131 (10th Cir. 2007) (quoting Georgia
v. Randolph, 547 U.S. 103, 122-23 (2006)). In Randolph, a husband objected to a search
of his home, but his wife agreed to allow the search over his objection. Randolph, 547
U.S. at 107. The Supreme Court held that the physically present husband’s express
objection should be given effect over the wife’s consent. Id. at 122-23. However, “[t]he
Court’s opinion [in Randolph] went to great lengths to make clear that its holding was
limited to situations in which the objecting occupant is present.” Fernandez, 134 S. Ct. at
1133; id. at 1129 (stating that Randolph stated “a narrow exception” to the general rule
that a single occupant may give consent). The corollary to the Randolph rule is that “a
co-tenant’s consent to search a shared residence may be valid as against an absent,
nonconsenting tenant.” United States v. McKerrell, 491 F.3d 1221, 1227 (10th Cir. 2007)
(Emphasis added); see Webb v. Brawn, 625 F. App’x 191, 193 (4th Cir. 2015) (stating
that “[the co-tenant’s] consent to search the home prevailed over [the defendant’s]
objections to the search, in light of the fact that she was present at the house and [the
defendant] elected to be absent despite requests from law enforcement [via telephone]
that he come to the house”). Because the Court finds that there is a dispute of material
fact as to whether either Colette’s or Scott’s consent was coerced, it need not address this
issue at this time.
Page 26 of 39

consensual encounter with a police officer.” [Doc. 9, pg. 16] As to the first argument,
the Court disagrees that the fact that Defendant did not personally interview Hall is
dispositive. “Government actors may be liable for the constitutional violations that
another committed, if the actors set in motion a series of events that the defendant knew
or reasonably should have known would cause others to deprive the plaintiff of her
constitutional rights, thus establishing the requisite causal connection between the
government actor’s conduct and a plaintiff’s constitutional deprivations.”

Trask v.

Franco, 446 F.3d 1036, 1046 (10th Cir. 2006) (internal quotation marks and citation
omitted). It is undisputed that Defendant was the lead investigator in charge of the
interviews of the youths, arranged to have CYFD personnel present to interview youths,
and prepared the questions to be asked of the youths. [Doc. 94, ¶¶ 34, 35; Doc. 95]
Hence, this argument is unavailing.6

6

Defendant also states that “Plaintiffs appear to attempt to circumvent the Court’s ruling
regarding their inability to establish that ‘Defendant’s conduct was a substantial factor’
leading to the removal of Mr. Hall and subsequent alleged injuries.” [Doc. 91, pg. 17]
He goes on to quote from this Court’s ruling dismissing Plaintiff Hall’s First Amendment
association claim, and relies on this Court’s ruling to argue that because Defendant did
not interview Hall, Defendant cannot be responsible for any allegedly illegal detention.
[Doc. 91, pg. 18] In the cited portion, this Court found that Plaintiff Hall had failed to
allege facts demonstrating that it was Defendant’s conduct which led to Plaintiff Hall’s
removal from the Program and thus to the injuries that allegedly flowed from removal.
[Doc. 75] However, the portion of the Memorandum Opinion and Order referenced by
Defendant relates only to Plaintiff Hall’s injuries related to removal from the Program.
Indeed, as to Hall’s Fourth Amendment claim, the Court also stated that “an unreasonable
seizure is itself the injury; a plaintiff is not required to allege any additional “serious
injury” or an injury that “shocks the conscience” and that “given the facts asserted [in the
First Amended Complaint], Plaintiff Hall has alleged sufficient facts to state a claim that
his detention itself constituted an injury that was traceable to Defendant’s conduct.”
[Doc. 75] Hence, contrary to Defendant’s argument, the Court found explicitly that
Page 27 of 39

As to Defendant’s second argument that the interview of Plaintiff Hall was
consensual, this contention is based in large part on Defendant’s position that Scott
and/or Colette consented to his entry onto the Ranch property and to the interview of
Hall, a minor under Scott’s guardianship. [Doc. 91, pg. 16; Doc. 76, ¶ 17 (alleging that
Scott has legal guardianship of youths in the Program)] Defendant also asserts, and
Plaintiffs do not specifically dispute, that Hall “never once asked to leave, never
requested counsel, and never made any statements indicating he did not want to
participate in the interview.” [Doc. 95, pg. 13; Doc. 91, ¶ 27; Doc. 94, ¶ 20] However,
these facts, even if undisputed, are insufficient on their own to establish Hall’s voluntary
consent because they do not exist in a vacuum. In other words, Defendant’s argument
ignores the totality of the circumstances, including the question of fact over whether
Defendant and the other officers and CYFD personnel were lawfully on the property at
all; Hall’s age; and the undisputed facts that: Hall was not told he did not have to consent,
that two people interviewed Hall in a closed room, and that no adult from the Program
was present during the interview. [Doc. 94, ¶¶ 33-34; Doc. 95 (not specifically disputing
these facts); Doc. 94, pg. 71-72, Hall affidavit]
The Court concludes that there is a question of fact as to whether Defendant
obtained consent to enter the Ranch and interview Hall through coercive means.

Plaintiffs had alleged an unlawful detention that is itself an injury traceable to
Defendant’s conduct.
Page 28 of 39

2. Whether the Law was Clearly Established
Having concluded that Plaintiffs have shown that there is a question of material
fact as to whether Defendant violated Plaintiffs’ constitutional rights, the Court turns to
whether it would have been clear to a reasonable officer that such conduct would violate
the Fourth Amendment in the circumstances presented here. The Tenth Circuit recently
set out the test for this prong as follows.
[T]he Supreme Court has repeatedly and consistently warned us not to
define clearly established law at [a] high level of generality. Instead, the
dispositive question is whether the violative nature of the defendants’
particular conduct is clearly established. In other words, the clearly
established law must be ‘particularized’ to the facts of the case. Thus,
before we may declare the law to be clearly established, we generally
require (1) a Supreme Court or Tenth Circuit decision on point, or (2) a
showing that the clearly established weight of authority from other courts
has found the law to be as the plaintiff maintains.
Sause v. Bauer, No. 16-3231, 2017 WL 2641070, at *3 (10th Cir. June 20, 2017)
(alterations, internal quotation marks, and citations omitted). A case “on point” does not
have to present the same exact facts, but must be analogous enough to show illegality.
Hence, “[a]lthough [the plaintiff] need not show that the very action in question has
previously been held unlawful, in the light of pre-existing law the unlawfulness must be
apparent.” A.M. v. Holmes, 830 F.3d 1123, 1136 (10th Cir. 2016), cert. denied sub nom.
A.M. ex rel. F.M. v. Acosta, No. 16-984, 2017 WL 2039255 (U.S. May 15, 2017)
(alterations, internal quotation marks, and citation omitted).
Defendant argues that “Plaintiffs have presented no evidence as to why a
reasonable officer would not have believed that [Colette’s] statements were explicit
voluntary consent to enter on to the property.” [Doc. 95, pg. 13] He goes on, “There is

Page 29 of 39

simply no clearly established law that would have put a reasonable officer on notice that
in conducting voluntary onsite interviews with the children of the ranch, after having
obtained consent to enter the property, they could be . . . found to have unreasonabl[y]
searched or seized either the ranch itself or [Scott].” [Doc. 95, pg. 13] Finally, as to
Plaintiff Hall, he argues that “there is no clearly established law that would have le[]d a
reasonable officer to determine that a witness[’]s lengthy, forthright, and apparently
voluntary interview violated the witness’s constitutional right.” [Doc. 95, pg. 14]
Defendant’s arguments are faulty because he misstates the premise of the inquiry
by assuming that Plaintiffs’ consent was voluntary. But Plaintiffs have demonstrated a
question of fact over whether any consent Scott or Colette gave was coerced by
Defendant’s threats or intimidating conduct. Thus, the proper inquiry is whether the law
was clear that consent obtained through intimidation or threats was unlawful. A.M., 830
F.3d at 1136.
The essential principles of Fourth Amendment law are well established.

As

another court stated, “[b]asic and applicable Fourth Amendment principles were clearly
articulated and firmly embedded in our constitutional jurisprudence well before the
events giving rise to this suit.” Walsh, 240 F. Supp. 2d at 758–59. It is a “bedrock
principle” that “government officers cannot enter a home without either prior court
approval, consent, or exigent circumstances” Id. “[T]he law properly presumes [this
principle is] known to every agent of the state who seeks to enter a private home . . . .”
Id.

Page 30 of 39

In addition, the law related to voluntary consent was clear at the time. In 1973, the
United States Supreme Court stated in Schneckloth v. Bustamonte that “the Fourth and
Fourteenth Amendments require that a consent not be coerced, by explicit or implicit
means, by implied threat or covert force. For, no matter how subtly the coercion was
applied, the resulting ‘consent’ would be no more than a pretext for the unjustified police
intrusion against which the Fourth Amendment is directed.” 412 U.S. 218, 228 (1973).
Our Tenth Circuit case law is clear that coercion can occur in a variety of ways, including
intimidation, physical force, threats, or misrepresentation. See McCurdy, 40 F.3d at
1119. In addition, a number of cases have found that threats involving children can be
coercive. See, e.g., Lynumn v. Illinois, 372 U.S. 528, 534 (1963) (holding that the police
statements were coercive where the defendant confessed “after the police had told her
that state financial aid for her infant children would be cut off, and her children taken
from her, if she did not ‘cooperate.’”); Siliven v. Indiana Dep’t of Child Servs., 635 F.3d
921, 926 (7th Cir. 2011) (stating that “[i]n the context of Fourth Amendment seizures
involving official coercion, we have noted that a threat becomes more coercive as the
cost of non-compliance increases relative to the cost of compliance” and that “it is
difficult to overstate the cost of non-compliance—losing custody of one’s child, even
temporarily” where officers had threatened to place the child in foster care if the mother
did not take him to his grandmother’s house (internal quotation marks and citation
omitted)); United States v. Tingle, 658 F.2d 1332, 1336 (9th Cir. 1981) (stating that the
officer’s statements were “patently coercive” where he told the defendant that, unless she
cooperated, “a lengthy prison term could be imposed, that [she] had a lot at stake, that her
Page 31 of 39

cooperation would be communicated to the prosecutor, that her failure to cooperate
would be similarly communicated, and that she might not see her two-year-old child for a
while” (footnotes omitted)); Walsh, 240 F. Supp. 2d at 760 (denying qualified immunity
where the officers threatened to arrest the defendant and remove his children if he did not
consent, stating that the officers “cannot reasonably claim that they, as reasonable law
enforcement officers, would not reasonably have known basic Fourth Amendment
doctrines relating to arrests, detentions, and searches” or that they could “believe that
consent to enter private premises could be procured by threats and other coercive
action”).
Defendant appears to rely on the particular context of a child abuse investigation
to argue that a reasonable officer would have believed the interview of Plaintiff Hall was
lawful.

He states that, even if “the interview [of Hall] could be viewed as an

investigative detention,” Defendant’s conduct would be reasonable. [Doc. 91, pg. 17]
He argues that his conduct was justified by the fact that “[o]fficers had reasonable
suspicion7 that child abuse was occurring at the youth facility” and that “investigations of
the youth facility had already taken place by the time Plaintiff Hall was interviewed.”
[Doc. 91, pg. 17] This argument is unavailing because the concept of an “investigative

7

To the extent Defendant uses the phrase “reasonable suspicion” to invoke NMSA 1978,
§ 32A-4-3, which states that “[e]very person . . . who . . . has a reasonable suspicion that
a child is an abused or a neglected child shall report the matter immediately” and that
“[t]he recipient of a report [of child abuse] shall take immediate steps to ensure prompt
investigation of the report,” the Court notes that “[a] statutory command to investigate
allegations . . . is not a license to ignore the Fourth Amendment, and it is unreasonable
for the defendants to think otherwise.” Gates v. Texas Dep’t of Protective & Regulatory
Servs., 537 F.3d 404, 421 (5th Cir. 2008).
Page 32 of 39

detention” does not apply in this context. Although he describes it as a “facility,”
Defendant does not dispute that Hall lived at the Ranch. [See, e.g., Doc. 91, ¶¶ 9, 16, 18,
22, 23, 24 (referring to Hall and the other youths as “residents” of the Ranch); see Doc.
91, pg. 16 (stating that Hall was “housed” at the Ranch)] The facts that the Ranch was
Hall’s home and that Hall was under the legal guardianship of the Ranch owner, Scott,
are significant to the Court in applying the correct standard. “[L]abeling an encounter in
the home as . . . an investigatory [detention] . . . is meaningless because Payton’s
requirements apply to all [such] seizures.” Manzanares, 575 F.3d at 1144 (internal
quotation marks and citation omitted) (stating that the defendant’s “attempt to label the
encounter [in the plaintiff’s home] an ‘investigative detention’ [wa]s of no
consequence”). Consistent with Payton, even where “there is probable cause to believe
that incriminating evidence will be found within a home, police may not enter without a
warrant absent exigent circumstances.” Id. at 1142; see Payton, 445 U.S. at 590. Thus,
even if the Court construed Defendant’s statements as an assertion that there was
probable cause, they are still legally insufficient to justify the entry to the Ranch or
detention of Hall in his home in the absence of a warrant, exigent circumstances, or
consent. Moreover, it was clearly established well before September 30, 2013 that these
principles applied to both law enforcement and social workers. The Tenth Circuit has
held that “[i]t was clearly established, at least two years before . . . [2005], that absent
probable cause and a warrant or exigent circumstances, neither police nor social workers
may enter a person’s home without a valid consent, even for the purpose of taking a child
into custody, much less to conduct a search.” Turner v. Houseman, 268 F. App’x 785,
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788 (10th Cir. 2008) (unpublished) (discussing requirements for seizure of a person
suspected of abusing his child) (emphasis added); see Roska ex rel. Roska v. Peterson,
328 F.3d 1230, 1250 n.23 (10th Cir. 2003) (stating that, as of 2003, “the law is now
clearly established that, absent probable cause and a warrant or exigent circumstances,
social workers may not enter an individual’s home for the purpose of taking a child into
protective custody”); Franz v. Lytle, 997 F.2d 784, 793 (10th Cir. 1993) (“eschew[ing]
defendant’s suggestion. . . [that], in the investigation of claims of child abuse and neglect,
police officers are absolved of a warrant or probable cause requirement”). The Court
concludes that Plaintiffs have shown that the law governing legal entry to the Ranch and
seizure of Hall was clearly established at the time.
In sum, viewing the facts in their favor, Plaintiffs have met their burden to raise a
question of material fact over whether Defendant violated their clearly established
constitutional right to be free of unreasonable seizures. Hence, Defendant’s Motion for
Summary Judgment will be denied as to qualified immunity against Plaintiffs’ Fourth
Amendment claims.
3. Plaintiff Chandler’s Malicious Prosecution Claim
Count I of the Second Amended Complaint is titled Ҥ 1983 Unlawful Entry and
Unreasonable Search and Seizure and Malicious Prosecution in Violation of the Fourth
and Fourteenth Amendments.” [Doc. 76] Defendant argues that “summary judgment is
appropriate on Plaintiffs’ claim for malicious prosecution” because no search or arrest
warrant was issued. [Doc. 91, pg. 13-14] Plaintiffs do not address this argument in their
Response. [Doc. 94] Although they purport to deny Defendant’s statement of fact that
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“Scott Chandler has not been prosecuted as a result of the September 30, 2013,
interviews,” [Doc. 91, ¶ 33] they do not point to evidence that a search or arrest warrant
was issued. [Doc. 94, ¶ 26] See Local Rule Civ. D.N.M. 56.1(b) (“Each fact in dispute
must be numbered, must refer with particularity to those portions of the record upon
which the non-movant relies, and must state the number of the movant’s fact that is
disputed. All material facts set forth in the [Motion] will be deemed undisputed unless
specifically controverted.”).
The Court notes first that the United States Supreme Court has held that
“[b]ecause the Fourth Amendment provides an explicit textual source of constitutional
protection against . . . physically intrusive governmental conduct, that Amendment, not
the more generalized notion of ‘substantive due process,’ must be the guide for analyzing
these claims.” Graham v. Connor, 490 U.S. 386, 395 (1989); see Albright v. Oliver, 510
U.S. 266, 273 (1994) (plurality opinion) (stating that the right to be free of arrest and
prosecution without probable cause is governed by the Fourth Amendment, not the
constitutional protections for substantive due process).

The Tenth Circuit has also

“applied this holding when the alleged denial of due process is procedural rather than
substantive.” Shimomura v. Carlson, 811 F.3d 349, 361 (10th Cir. 2015). Hence, the
Court will consider Plaintiffs’ claim only under the Fourth Amendment. See Coleman v.
Cty. of Lincoln, No. CV 17-663 GBW/SMV, 2018 WL 401185, at *10 (D.N.M. Jan. 12,
2018) (stating that, where the plaintiffs alleged an unreasonable search and seizure of
their home, “[the p]laintiffs’ Fourteenth Amendment claim is improper in the context of a

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law enforcement search or seizure,” and that “the Court [would] only address[ the
p]laintiffs’ claims under the Fourth Amendment.”).
A Fourth Amendment malicious prosecution claim, unlike a false imprisonment
claim, arises after the institution of legal process. See Myers v. Koopman, 738 F.3d 1190,
1194 (10th Cir. 2013) (footnote omitted), as amended on denial of reh’g (Jan. 8, 2014).
Claims of malicious prosecution and false imprisonment are akin to “rain and snow[:] the
claims emanate from the same source, but under different conditions.” Id. “What
separates the two claims?—the institution of legal process.

Unreasonable seizures

imposed without legal process precipitate Fourth Amendment false imprisonment claims
. . . [whereas] seizures imposed with legal process precipitate Fourth Amendment
malicious-prosecution claims.” Id. “At common law, the issuance of an arrest warrant
represents a classic example of the institution of legal process.” Wilkins v. DeReyes, 528
F.3d 790, 799 (10th Cir. 2008).
Here, the undisputed facts indicate that an essential element of a malicious
prosecution claim—institution of legal process—is missing. Thus, summary judgment as
to Plaintiffs’ Fourth Amendment malicious prosecution claim shall be granted.
B. Plaintiffs’ Rule 56(f) Request for Additional Discovery [Doc. 94] and Plaintiffs’
Motion for Sur-Reply to Defendant’s Motion for Summary Judgment [Doc. 97]
In their Response [Doc. 94], Plaintiffs state that additional discovery is necessary
to permit them to respond adequately to Defendant’s Motion for Summary Judgment.
Specifically, they argue that they need additional discovery addressing what Defendant
told Scott about the interviews in the days leading up to September 30, 2013, whether and
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when Defendant had a plan for the interviews that he concealed from Scott and Colette,
and Defendant’s and the other officers’ conduct at the gate to the Ranch on September
30, 2013. [Doc. 94, pg. 6-7] Defendant opposes additional discovery, arguing that “[t]he
requested discovery is not limited in nature, nor tailored for the purposes of responding to
the subject Motion, and are overall irrelevant and unnecessary.” [Doc. 95, pg. 14] He
also states that Plaintiffs’ request is a “red herring” because Plaintiffs are “likely already
in possession of the documents they now allege[] they warrant more time to collect”
because Plaintiffs have obtained “voluminous documents from CYFD and [Department
of Public Safety (DPS)] by and through the current CYFD administrative proceedings [in
the First Judicial District Court] and [the Inspection of Public Records Act] requests.”
[Doc. 95, pg. 15]
Plaintiffs also move for leave to file a sur-reply. [Doc. 97] The purpose of the
proposed sur-reply is solely to address Defendant’s statements regarding discovery.
Plaintiffs argue that Defendant inaccurately presented an essential fact, which is that the
discovery obtained in the CYFD proceeding is sealed by order of the First Judicial
District Court. [Doc. 97, pg. 2] They note that they have filed a motion to unseal
depositions of DPS personnel, and that “[i]n the event the [First Judicial] District Court
timely releases the information . . . Plaintiffs will not need additional discovery.” [Doc.
97, pg. 3]
Given the Court’s conclusion that Plaintiffs have demonstrated a question of fact
precluding summary judgment on the basis of evidence already in hand, additional
discovery is unnecessary at this time. Hence, Plaintiffs’ Rule 56(d) Request for Time to
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Conduct Discovery, and the Motion for Sur-Reply to Defendant’s Motion for Summary
Judgment [Doc. 97] shall be denied as moot.
C. Plaintiffs’ Motion for Spoliation Sanctions against Defendant [Doc. 101]
Plaintiffs also move for spoliation sanctions against Defendant in the form of a
“presumption that the missing audio recordings would have supported the Plaintiffs’
argument that the events of September 30, 2013 were not consensual.” [Doc. 101] In the
Motion, Plaintiffs make arguments related to two sets of audio recordings. First, they
contend that Defendant was on notice that audio recordings of certain interviews and
conversations should have been preserved for litigation but were not. [Doc. 101, pg. 4-5]
These included 1) a telephone conversation on September 28, 2013; 2) interviews by
Defendant of parents of youths in the Program; 3) an interview by Defendant of Scott
Chandler on October 16, 2013; 4) Defendant’s conversations with Barbara Holler and
Jim Hurt. [Doc. 101, pg. 4-5] Second, they argue that audio recordings by officers
present at the Ranch gate on September 30, 2013 should have been preserved but were
not. [Doc. 101, pg. 4] Plaintiffs note, however, that “[n]o recording of the conversation
between Mrs. Chandler and Officer Williams has been provided and it apparently does
not exist” and that Officer Williams stated in deposition testimony that “he did not know
why the conversation was not recorded.” [Doc. 101, pg. 4] Defendant responded on
May 24, 2018. [Doc. 103]
The Court finds that it is unnecessary to address Plaintiffs’ Motion at this time.
Because Plaintiffs’ seek only an inference in their favor as to the Motion for Summary
Judgment and the Court has addressed the Motion without reliance on such inference, the
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Court will deny the Motion for Spoliation Sanctions [Doc. 101] as moot without
prejudice.
III.

Conclusion
For the foregoing reasons, the Court GRANTS Defendant’s Motion for Summary

Judgment as to claims asserted by the Tierra Blanca Ranch High Country Youth
Program, GRANTS Defendant’s Motion for Summary Judgment as to Plaintiff Scott
Chandler’s claim for malicious prosecution, and DENIES Defendant’s Motion for
Summary Judgment in all other respects. [Doc. 91]
Furthermore, the Court DENIES Plaintiffs’ Rule 56(d) Request for Time to
Conduct Discovery [Doc. 94] and Plaintiffs’ Motion for Sur-Reply [Doc. 97].
Finally, the Court DENIES without prejudice Plaintiffs’ Motion for Spoliation
Sanctions against Defendant. [Doc. 101]
SO ORDERED this 1st day of June, 2018.

M. CHRISTINA ARMIJO
United States District Judge

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