Lopez et al v. State of New Mexico et al

Filing 190

MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera denying 28 Plaintiff Feliz Gonzales' Motion for Partial Summary Judgment against Defendants City and Rodriguez ; denying 131 Plaintiff Phillip Lopez's Motion for Partial Summary Judgment against Defendants City and Rodriguez; and, granting in part and denying in part 138 Defendants' Motion for Summary Judgment Based on Qualified Immunity and Governmental Immunity (baw)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
PHILLIP O. LOPEZ and
FELIZ GONZALES,
Plaintiffs
v.
No. 2:15-CV-00889 JCH/SMV
THE STATE OF NEW MEXICO,
THE CITY OF LAS CRUCES, and
OFFICER DAVID RODRIGUEZ and
DETECTIVE MICHAEL RICKARDS, in their
official and individual capacities as employees of
the City of Las Cruces,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on the following motions: (i) Plaintiff Feliz
Gonzales’s Motion for Partial Summary Judgment against Defendants City and Rodriguez (ECF
No. 28); (ii) Plaintiff Phillip Lopez’s Motion for Partial Summary Judgment against Defendants
City and Rodriguez (ECF No. 131); and (iii) Defendants’ Motion for Summary Judgment Based
on Qualified Immunity and Governmental Immunity (ECF No. 138). The Court, having
considered the motions, briefs, evidence, and relevant law, concludes that Plaintiffs’ motions will
be denied and Defendants’ motion will be granted in part and denied in part.
I.

FACTUAL BACKGROUND1

On the evening of January 4, 2015, Officer David Rodriguez was on duty as a police
officer for the City of Las Cruces. Defs.’ Resp. to Pl. Lopez’s Mot. for Summ. J., Undisputed
Fact (“UF”) ¶ 1, ECF No. 143. He was dispatched on a non-emergency, non-domestic
disturbance call to an address at 624 West Court Road regarding a dispute and threats between

1

  Many of the facts are undisputed. Where a dispute of fact exists, the Court will set forth the respective parties’
version of events, as supported in the record. The Court will construe the facts in the light most favorable to the nonmoving party in the analysis of each party’s respective motion for summary judgment.

neighbors. See Pl. Lopez’s Mem., UF ¶ 1, ECF No. 132; Defs.’ Resp. to Pl. Lopez’s Mot. for
Summ. J., UF ¶ 3, ECF No. 143; Pretrial Order, Stipulated Factual Contentions ¶¶ IV(A)(4)-(5),
ECF No. 179; Dep. of David Rodriguez 135:3-13, ECF No. 148-1. Dispatch informed Officer
Rodriguez that threats occurred in which a neighbor said he was going to kill the other. Dep. of
David Rodriguez 126:1-25, ECF No. 143-1.2 At the time he arrived at the address, Officer
Rodriguez did not know who had made the call or who had allegedly made threats. Pl. Lopez’s
Mem., UF ¶ 2, ECF No. 132.
When Officer Rodriguez arrived at the scene, he saw a man, who he later learned to be
Phillip Lopez, standing in front of the 624 West Court residence. Defs.’ Resp. to Pl. Lopez’s
Mot. for Summ. J., UF ¶ 3, ECF No. 143. At the time he encountered Mr. Lopez, Officer
Rodriguez did not know whether Mr. Lopez was involved in the dispute to which he was
dispatched. Pl. Lopez’s Mem., UF ¶ 3, ECF No. 132.
The parties dispute what happened next. Officer Rodriguez testified that he saw Mr.
Lopez take off running towards the house after he observed Officer Rodriguez. See Dep. of
David Rodriguez 127:16-128:22, ECF No. 143-1. Officer Rodriguez considered Mr. Lopez’s
behavior suspicious because he was in the area of the dispute and fled when seeing law
enforcement. See id. 128:16-129:20.3 Mr. Lopez testified that, after he saw the police cruiser, he
walked quickly to his grandmother’s front porch and then to his apartment door where he handed

2

 Plaintiff disputes this fact, arguing that Defendants’ cited portion of the record did not address the type of dispatch
call. Pl.’s Reply 2, ECF No. 154. While Plaintiff is correct that the citation to 128:16-25 does not address the
dispatch call, 126:16-25 of Officer Rodriguez’s deposition supports this fact, and the Court will therefore consider
that evidence.
3
 Plaintiff contends this fact is irrelevant because Officer Rodriguez’s subjective state of mind is not at issue. The
Court includes the fact for context, but recognizes that the qualified immunity analysis looks to whether a reasonable
officer would objectively believe the behavior suspicious.

2 

off his dog. See Phillip Lopez Dep. 66:18-67:25, ECF No. 143-2 (responding “Quickly” to
question, “How quickly did you hand off – did you take the dog to your – ”).
Officer Rodriguez decided to investigate, and he drew his gun and came around the house
in a circular motion to see if he could see Mr. Lopez from a better angle. See Dep. of David
Rodriguez 128:16-130:11, ECF No. 143-1. Officer Rodriguez saw Mr. Lopez in an open
doorway with the light on inside the home. Id. 130:8-17. While pulling his gun out and pointing
it at Mr. Lopez, Officer Rodriguez commanded Mr. Lopez to put his hands up. Id. 130:8-17,
132:7-133:1; Dep. of Phillip Lopez 68:16-69:2, ECF No. 143-2; Corrected Answer ¶ 8, ECF No.
39; Pretrial Order, Stipulated Fact ¶ IV(A)(9), ECF No. 179.
The parties dispute what next occurred. According to Mr. Lopez’s version, Officer
Rodriguez told Mr. Lopez, “Get the fuck over here. Put your hands up,” at which point Mr.
Lopez walked toward Officer Rodriguez and responded, “My hands are in the fucking air.” Dep.
of Phillip Lopez 68:16-70:11, ECF No. 143-2. Mr. Lopez asserts that Officer Rodriguez told him
to stop, at which point, he removed his jacket, turned around to show him his waistband as he
had ordered, and then continued walking toward him. Id. According to Mr. Lopez, he followed
Officer Rodriguez’s orders to approach, and closed distance to show him that his hands were in
the air and to ask what he wanted. Id. 72:15-22.
According to Officer Rodriguez, he identified himself as a police officer and told Mr.
Lopez to put up his hands. See Dep. of David Rodriguez 130:12-131:3, ECF No. 143-1. Mr.
Lopez then turned around and said, “Oh, you want to see my hands. I’m not going to show you
my fucking hands,” and he started making non-compliant gestures, throwing his hands around,
and walking toward Officer Rodriguez. Id. 131:4-17. Although Mr. Lopez did not verbally

3 

threaten Officer Rodriguez, Officer Rodriguez testified that Mr. Lopez advanced towards him
while Officer Rodriguez kept telling him to put up his hands, and at one point, Officer Rodriguez
told him to stop, and he did not stop. See id. 131:5-132:14. Instead, Mr. Lopez continued walking
toward him and lifted his shirt up, revealing that he did not have a weapon. See id. 132:7-133:25.
The parties agree that, around that point in time, Feliz Gonzales came beside Phillip
Lopez. Defs.’ Mem., UF ¶ 12, ECF No. 139. Officer Rodriguez first heard her and did not know
from where she came. Dep. of David Rodriguez, 133:6-134:21, ECF No. 139-1.4
According to Officer Rodriguez, both Ms. Gonzales and Mr. Lopez continued to walk
towards him, he told them to stop, and he retreated backwards to the street to create distance. See
id. 133:17-134:5. Once Officer Rodriguez was in the street, he put away his gun and pulled out
his Taser. See id. 133:17-136:22.
Plaintiffs’ version differs. Mr. Lopez avers that he came towards Officer Rodriguez,
because Officer Rodriguez commanded that he come here with his hands in the air, so he
followed those instructions. Dep. of Phillip Lopez 72:15-22, ECF No. 139-2.
The parties agree that Mr. Lopez moved in front of Ms. Gonzales when he saw the
infrared targeting light of the Taser on her because he believed it was a targeting light from a
gun. Defs.’ Mem., UF ¶ 13, ECF No. 139. Immediately after Mr. Lopez moved in front of Ms.
Gonzales, Officer Rodriguez stunned Mr. Lopez with his Taser. Id. UF ¶ 14. Officer Rodriguez
stunned Ms. Gonzales second with the Taser. Id. UF ¶ 15. At that point, both Plaintiffs were
simultaneously connected by the Taser prongs to Officer Rodriguez’s Taser. Defs.’ Resp. to Pl.

4

 Defendants assert in their motion for summary judgment that Officer Rodriguez saw Mr. Lopez standing in front of
the open door with Ms. Gonzales, but the citation to the record does not support that fact. Defendants in their reply
did not address Plaintiff’s contention that the record instead supported the fact that Officer Rodriguez did not see
Ms. Gonzales in the doorway.

4 

Gonzales’ Mot., UF ¶ 2, ECF No. 41. Ms. Gonzales fell to the ground, where she remained, face
down, without moving throughout the incident. See Defs.’ Mem. UF ¶ 18, ECF No. 139; Pl.
Gonzales’ Mot. for Partial Summ. J., UF ¶ 2, ECF No. 29. Ms. Gonzales was closer to Officer
Rodriguez than Mr. Lopez was after they were both initially tased. Defs.’ Mem., UF ¶ 16, ECF
No. 139. Mr. Lopez questioned Officer Rodriguez as to why he tased his wife and demanded that
he leave her alone. Corrected Answer ¶ 16, ECF No. 39. The parties also agree that at some point
Mr. Lopez attempted to remove his Taser prongs, and did so. Defs.’ Mem. for Summ. J., UF
¶ 18, ECF No. 139.
The parties, however, dispute much of what occurred during the time period in which
Officer Rodriguez deployed his Taser. According to Officer Rodriguez, he gave Plaintiffs
commands to back up, which they did not follow, which is why he initially shot his Taser at each
of them. See Defs.’ Ex. C (video); Dep. of David Rodriguez 136:2-12, ECF No. 139-1. He also
asserts that he continued to tase Mr. Lopez because he was trying to remove the Taser prongs
and stand. See Dep. of David Rodriguez 137:7-13, ECF No. 139-1. Mr. Lopez was never able to
get to his feet. Id. 143:13-15. Officer Rodriguez testified that he did not intend to tase Ms.
Gonzales after the first Taser shot and did not realize he was sending charges through her until
the last time he attempted to tase Mr. Lopez when he was trying to get up. See id. 139:7-14.5
According to Mr. Lopez, after he was initially tased, he fell to the ground and did not
move from a seated position, and he put his arms in the air. See Dep. of Phillip Lopez 77:13-21,
ECF No. 139-2. Plaintiffs dispute that Officer Rodriguez did not know that he was tasing Ms.

5

  Plaintiff contends that Defendant Rodriguez admitted that he realized he was tasing Ms. Gonzales before he
radioed for back-up, which occurred before the final tasing of Ms. Gonzales. Pls.’ Resp. ¶ J, ECF No. 148. Officer
Rodriguez, however, clearly testified that he did not realize he was tasing Ms. Gonzales until the last time he tased
Mr. Lopez. Dep. of David Rodriguez 139:7-14, ECF No. 139. The portion of the testimony that Plaintiff argues is an
admission is unclear and does not clearly refute the statement that he did not know he was tasing her until the last
discharge, and thus, when considering Ms. Gonzales’ motion for summary judgment, the Court will construe the
record and inferences in favor of Officer Rodriguez.

5 

Gonzales because the recorded audio from the video camera reveals screams, crying, and distress
from a woman. See Defs.’ Ex. C. The electric current going from the Taser to only Ms. Gonzales
was visible. Pls.’ Resp., UF ¶ I, ECF No. 148 (citing Defs.’ Ex. C).
The parties do not dispute that, during the subsequent Taser discharges, Officer
Rodriguez yelled repeatedly to “stay on the ground.” See Defs.’ Ex. C. At some point during the
Taser incident, the parties agree Mr. Lopez yelled to his neighbor to get his dog. Compare Defs.’
Mem. for Summ. J. ¶¶ 19-20, ECF No. 139, with Pls.’ Resp. ¶¶ 19-20, ECF No. 148. According
to Officer Rodriguez, he knew Mr. Lopez was yelling something to somebody down the street,
but he could not hear what Mr. Lopez was saying because he was telling him not to say anything.
Dep. of David Rodriguez 141:17-21, ECF No. 139-1. The parties agree that, during this
exchange, Officer Rodriguez yelled several times, “Stop talking!” and “Stop talking or I’ll tase
you again!” Corrected Answer ¶ 18, ECF No. 39. Shortly thereafter, Officer Rodriguez
discharged the Taser again. See Defs.’ Ex. C.
The parties agree that Officer Rodriguez sent 10 additional cycles through Ms. Gonzales
after the initial incapacitating shot. Pl. Gonzales’ Mem., UF ¶ 5, ECF No. 29. Ms. Gonzales
suffered injuries as a result of the additional Taser discharges. Id. UF ¶ 6. Both Plaintiffs were
arrested that night and went to jail. Defs.’ Mem., UF ¶ 23, ECF No. 139.
The parties dispute the capabilities of the Taser. Defendants presented evidence that the
arc button on the X2 Taser that Officer Rodriguez had allows an officer to stun both or only one
person. Aff. of David Rodriguez ¶¶ 25-26, ECF No. 41-1. Plaintiff Gonzales disputes this fact,
contending that, once the prongs are in two subjects, if the trigger is used to send an arc, it is sent
through both subjects simultaneously. Pl. Gonzales’s Reply 3, ECF No. 42. In support, Plaintiff
relies on portions of the X2 TASER User’s Manual and asks the Court to take judicial notice of
6 

the Owner’s Manual and its accuracy. Id. at 3 n.2. This Court cannot take judicial notice of this
fact, because the accuracy of the manual is not “generally known within the trial court’s
territorial jurisdiction,” nor can it be “accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” Fed. R. Evid. 201. Because the Manual is hearsay
without accompanying sworn testimony stating what it is and its accuracy, the Court cannot
consider its contents as facts and will instead consider the Taser capabilities to be disputed.
On January 3, 2015, the day before the Taser event, Agent Charles Boylston from the
New Mexico State Police, after receiving a phone call from Asset Protection Officer Gabe
Martinez, started an investigation of a shoplifting by an unknown couple at a Wal-Mart store.
Defs.’ Mem., UF ¶ 24, ECF No. 139; Dep. of Charles Boylston 40:19-22, ECF No. 160-4. The
Wal-Mart shoplifters had a child with them. See Pls.’ Resp., UF ¶ Q, ECF No. 148. Agent
Boylston, being fairly new to retail investigations, did not know as many people, so he requested
the help of Detective Michael Rickards to determine if other officers could identify the suspects.
See Dep. of Charles Boylston 41:16-42:22, ECF No. 139-4. Detective Rickards then sent an
email with photographs of the couple to all the officers at the Las Cruces Police Department for
assistance in identifying them. Defs.’ Mem., UF ¶ 25, ECF No. 139.
Lieutenant Casey Mullins saw a “BOLO” (“Be On the Lookout”) with a photograph of
Mr. Lopez that had been sent out for officer safety reasons following the altercation between
Plaintiffs and Officer Rodriguez. See Dep. of Casey Mullins 11:19-12:12, 17:24-19:2, 20:1421:25, ECF No. 163-2. Lieutenant Mullins responded by email to Detective Rickards that the
photograph he sent looked like the person in the BOLO. See Dep. of Casey Mullins 11:19-12:12,
18:20-19:2, 20:14-21:25, ECF No. 163-2; Dep. of Michael Rickards 62:5-63:4, ECF No. 139-6;
Dep. of David Rodriguez 62:5-11, ECF No. 148-7. Detective Kaycee Thatcher responded by
7 

email saying that it looked like the person about which she had just sent an email. Dep. of
Michael Rickards 28:18-21, ECF No. 163-1. On January 5, 2015, Transport Officer Alfredo
Carbajal transported Plaintiffs from jail to court. Defs.’ Mem. UF ¶ 27, ECF No. 139. While in
court with Plaintiffs, Officer Carbajal received an email with photographs from Detective
Rickards requesting assistance in identifying the couple in the photos. Id. UF ¶ 29.6 Officer
Carbajal reported to Detective Rickards that it looked like Plaintiffs. See Dep. of Alfred Carbajal
8:10-25, ECF No. 139-5.
On January 5, 2015, Officer Rodriguez completed an Affidavit and Criminal Complaint
charging Plaintiff Feliz Gonzales with petty misdemeanor assault on an officer under the Las
Cruces Municipal Code. Statement of Facts in Support of Compl., ECF No. 148-4. In the
charging documents, after describing the encounter on January 4, 2015, he petitioned the Court
to accept the statement facts and charge her “with shoplifting.” Id.
Around this time, Detective Rickards sent Officer Joshua Milks a photograph of a couple
from a Hastings store and asked if he recognized the people. See Pl.’s Resp., UF ¶ N, ECF No.
148; Dep. of Joshua Milks, 14:9-16:17, ECF No. 148-6. Officer Milks had previously met Mr.
Lopez and Ms. Gonzales during their booking following their arrests for assaulting a police
officer. Dep. of Joshua Milks 4:22-5:6, 8:16-25, ECF No. 163-4. When Officer Milks responded
that he could not, Detective Rickards asked if they were Mr. Lopez and Ms. Gonzales, to which
Officer Milks answered that they could possibly be, but due to the graininess of the photo, he
could not positively identify them. See id.

6

 Plaintiff contends it is unclear if Officer Carbajal received photos from the Walmart or Hastings store. Defendants
reply that the metadata for the text messages indicates that the photos from Hastings were not created until January
6, 2015, after Officer Carbajal received the photos. Defendants attach a copy of an Extraction Report, but without an
accompanying affidavit explaining the authenticity of the report. The Court will therefore not consider the report at
this stage because it is inadmissible hearsay. See Fed. R. Evid. 801.

8 

On January 6, 2015, around 7:00 p.m., Detective Rickards texted Officer Rodriguez
photographs of a couple from the Hastings store. Defs.’ Mem., UF ¶ 32, ECF No. 139. At this
time, Detective Rickards knew there was some sort of physical altercation between the police
and Mr. Lopez and his wife, but he did not know that a Taser had been deployed. Dep. of
Michael Rickards 35:16-36:8, ECF No. 160-5.7 Detective Rickards’ text asked, “Recognize these
two,” to which Officer Rodriguez responded by text message, “Looks like Phillip Lopez and
Feliz Gonzales.” See Pl.’s Ex. C, ECF No. 104-1 at 6 of 7; Pl.’s Reply, Ex. A 54:21-57:24, ECF
No. 118-1; Defs.’ Mem., UF ¶ 33, ECF No. 139; Dep. of David Rodriguez 153:9-154:3, ECF
No. 163-5. Detective Rickards responded, “Atta baby! That[’]s what [I] wanted to hear. Ok [I]
thought so but [M]ilks was unsure.” Pl.’s Ex. C, ECF No. 104-1 at 6 of 7. Officer Rodriguez
replied, “Yea I don’t think I’ll forget them after Sunday.” Id. Detective Rickards then texted,
“That[’]s what i figured. You never forgot someone that you fight with. Never.” Id. He then
explained by text that they did a felony shoplifting on Saturday and tried to hit Hastings today.
Id. at 7 of 7. Officer Rodriguez replied, “That’s good to hear they had nothing but good things to
say about the department.” Id. Detective Rickards replied, “I[’]ll make sure they get excellent
service.” Id.

7

 Plaintiff asserts that it is undisputed that Defendant Rickards lied about his familiarity with Plaintiffs and the tasing
incident under oath at his deposition, citing this Court’s Memorandum Opinion and Order reinstating Defendant
Rickards in the case. In that order, the Court, relying on the documents before it, stated, “The text messages indicate
that, at the time he and Agent Boylston were trying to identify the Wal-Mart suspect on or around January 6, 2015,
Defendant Rickards had known of the Taser incident between Plaintiffs and Defendant Rodriguez, contrary to what
his sworn testimony suggested.” Mem. Op. and Order 7, ECF No. 130. At that time, the Court did not have the
benefit of the more developed record before it now, and had not reviewed a later portion of Detective Rickards’
deposition in which, when specifically asked how he knew to contact David Rodriguez with the photographs, he
testified that he knew of a physical altercation between the police and Mr. Lopez and his wife, but did not know it
involved a Taser. Dep. of Michael Rickards 35:16-36:21, ECF No. 160-5. Based on the record now before it and
Detective Rickards’ subsequent clarification of his testimony, the Court will not enter a finding that Defendant
Rickards lied in his deposition when he said he did not know about the Taser incident. His later explanation that he
knew that there had been a physical altercation is consistent with the contents of the text messages.

9 

Sometime on January 6, 2015, Detective Rickards contacted Agent Boylston and said to
stop by his office because he had a picture of his guy and that some officers in his agency may
have identified his people. See Dep. of Charles Boylston 43:14-24, ECF No. 139-4, and 60:1523, ECF No. 163-3; Dep. of Michael Rickards 31:7-24, 36:18-23, ECF No. 160-5, and 63:1264:8, 65:12-66:18, ECF No. 163-1. When Agent Boylston walked into Detective Rickards’
office, Detective Rickards handed him a driver’s license photo and said, “This is your guy,”
giving the name of the man in the driver’s license photograph as Phillip Lopez. See Dep. of
Charles Boyston 43:14-24, ECF No. 139-4.8 Detective Rickards said that he put out the
photograph of Mr. Lopez to the uniform side of LCPD, and somebody came back and said that is
Phillip Lopez. Id. 60:15-23, ECF No. 163-3. Detective Rickards also gave him Ms. Gonzales’
driver’s license photograph. Id. 51:17-52:9. Agent Boylston then made his own independent
comparison of the photographs of both Mr. Lopez and Ms. Gonzales. See id. 49:1-18 & 59:2025.
Agent Boylston met with Officer Gabe Martinez and showed him the driver’s license
photograph of Mr. Lopez, to which Officer Martinez responded, “Yep, that’s our guy.” Dep. of
Charles Boylston 45:4-21, 49:1-18, ECF No. 163-3. Agent Boylston and Officer Martinez
reviewed the Wal-Mart store’s surveillance video and still photographs from different shots and
angles of the shoplifters, totaling up the cost of the stolen merchandise and determining that the
amount rose to the felony level. See id. 45:4-46:5. Based on his own examination of the
photographs, Agent Boylston believed that the photographs of Plaintiffs looked like the WalMart shoplifting suspects. See id. 51:17-52:9, 59:20-25.

8

  Defendants dispute that Detective Rickards positively identified Plaintiffs, relying on his testimony in which he
stated that he did not “identify” anyone, but he did believe the photographs he saw looked like the people that were
in the photographs sent to him. Dep. of Michael Rickards 34:6-25, ECF No. 160-5. Agent Boylston’s testimony
indicates that Detective Rickards identified Mr. Lopez, and the Court must construe this evidence in Plaintiffs’ favor
at this stage in the proceedings.

10 

On January 9, 2015, Agent Boylston prepared Affidavits for Arrest Warrants for
Plaintiffs. Affs. for Arrest Warrant, ECF No. 52-1 at 1-4 of 19. He discussed the information
with his sergeant and spoke with the District Attorney’s office, which approved his affidavits.
Dep. of Charles Boylston 57:15-58:5, ECF No. 163-3. Agent Boylston also spoke with the
magistrate court judge. Id. Agent Boylston filed the criminal charges against Plaintiffs, and a
magistrate judge signed the warrants for arrest and the criminal complaints. See Warrants for
Arrest, ECF No. 163-6; Criminal Compl., ECF No. 163-7. The Affidavits for Arrest Warrant for
each Plaintiff are virtually identical and state:
On Saturday, January 3, 2015, I was contacted by Walmart Asset Protection Officer Gabriel
Martinez located at the Walmart on Valley Drive. Below is the following information your
affiant learned from Asset Protection Officer (APO) Gabriel Martinez.
APO Martinez said on [January 3, 2015] at about 2:30 p.m. he was inside the apprehension
office of Walmart. He said [he] heard the alarm sensor go off by the office and he looked out
of the door…He said the male subject was pushing a shopping cart with electronic items….
He said he checked the surveillance video of the electronic section and observed the male
subject select electronic items and then walked out of the store without paying for the
merchandise.
I informed APO Martinez, to send out a picture of the subject to Las Cruces Police Detective
Mike Rickards and myself. A short time later, I received a text message of the subject who
took the merchandise. I then informed APO Martinez, when I returned to work, I would stop
by the store and review the video of the incident. This concluded the telephone conversation
with APO Martinez.
Upon our review, we observed Phillip Lopez enter the Walmart at approximately 2:03 p.m.
with a female Feliz Gonzales and a small male child….
Affs. For Arrest Warrant, ECF No. 163-6. In the remainder of the Affidavits, Agent Boylston
describes what occurred in the video, using Phillip Lopez’s name wherever he describes what the
man in the surveillance video did and using Feliz Gonzales’ name to describe whatever the
woman in the video did. See id.

11 

Plaintiffs were arrested for the shoplifting at the Walmart. Defs.’ Mem., UF ¶ 36, ECF
No. 139. Officer Rodriguez voluntarily accompanied two other officers who arrested Mr. Lopez
for the shoplifting. Pls.’ Resp., UF ¶ T, ECF No. 148; Dep. of David Rodriguez 69:6-9, ECF No.
163. During that arrest, Officer Rodriguez defended his actions regarding the Taser discharges to
another officer. Pls.’ Resp., UF ¶ U, ECF No. 148. At that time, Officer Rodriguez was not
concerned that he had misidentified Plaintiffs. Dep. of David Rodriguez 79:3-14, ECF No. 1635. Officer Rodriguez, having reexamined the photographs since the incident, believes the
photographs still kind of look like Mr. Lopez, but he now sees differences. See Dep. of David
Rodriguez, 45:19-47:7, 59:23-60:6, 63:3-9, 79:3-14, ECF No. 148-7.
Agent Boylston later discovered that he did not have sufficient evidence to hold Plaintiffs
and contacted the District Attorney’s Office to get the cases dismissed. See Dep. of Charles
Boylston 75:2-5, ECF No. 170-1. On January 15, 2015, the Third Judicial District Attorney’s
Office filed nolle prosequis, dismissing without prejudice the shoplifting charges against
Plaintiffs. See Nolle Prosequis, ECF No. 163-8.
II.

PROCEDURAL HISTORY

Plaintiffs brought an eight-count civil suit against Officer Rodriguez, Detective Rickards,
and the City. Plaintiffs assert federal claims for excessive force and malicious prosecution, as
well as state law claims for assault, battery, false arrest and imprisonment, and malicious abuse
of process.
On February 16, 2016, Plaintiff Feliz Gonzales filed a Motion for Partial Summary
Judgment against Defendants City of Las Cruces and Officer Rodriguez (ECF No. 28), seeking
an order granting summary judgment to her as to liability on Count III against the City and
Officer Rodriguez for battery under the New Mexico Tort Claims Act (“NMTCA”), N.M. Stat.
12 

Ann. § 41-4-12, and on Count VII against Officer Rodriguez for excessive force under the
Fourth Amendment. The initial Taser discharge is not at issue in her motion. Instead, Plaintiff
Gonzales argues that, after she was incapacitated on the ground, the second through eleventh
Taser discharges constituted an unreasonable, excessive use of force because she posed no threat.
On October 11, 2016, Plaintiff Phillip Lopez filed a motion for partial summary judgment (ECF
No. 131), seeking summary judgment in his favor as to liability on Count I against the City and
Officer Rodriguez for assault under the NMTCA, and as to Count VI for excessive force under
the Fourth Amendment, based on Officer Rodriguez pointing a gun at him.
After Plaintiffs moved for partial summary judgment, Defendants filed a motion for
summary judgment on all counts and asserted qualified immunity. See Def.’s Mem. in Supp. of
Mot. for Summ. J., ECF No. 139. The parties have thus filed cross motions for summary
judgment as to Counts I, III, VI, and VII. The Court will address the federal claims first before
turning to the state claims.
III.

STANDARD

On a motion for summary judgment, the moving party initially bears the burden of
showing that no genuine issue of material fact exists. Shapolia v. Los Alamos Nat’l Lab., 992
F.2d 1033, 1036 (10th Cir. 1993). Once the moving party meets its burden, the nonmoving party
must show that genuine issues remain for trial. Id. The nonmoving party 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 Corp. v. Catrett, 477 U.S. 317, 324 (1986). “All facts and reasonable inferences must be
construed in the light most favorable to the nonmoving party.” Quaker State Minit-Lube, Inc. v.
Fireman’s Fund Ins. Co., 52 F.3d 1522, 1527 (10th Cir. 1995) (internal quotations omitted).
13 

Under Rule 56(c), only disputes of facts that might affect the outcome of the case will properly
preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986). There is no issue for trial unless there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party. See id. at 248.
In order to defeat a qualified immunity defense, the plaintiff must both “demonstrate that
the defendant’s actions violated a constitutional or statutory right” and “show that the
constitutional or statutory rights the defendant allegedly violated were clearly established at the
time of the conduct at issue.” Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008). A
court may exercise its discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances of the case before it. Pearson v.
Callahan, 555 U.S. 223, 236 (2009). For a right to be clearly established under the second prong,
“[t]he contours of the right must be sufficiently clear that a reasonable official would understand
that what he is doing violates that right.” Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir.
1995) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). A plaintiff can demonstrate
that a constitutional right is clearly established by references to on-point cases from the Supreme
Court, the Tenth Circuit, or the clearly established weight of authority from other circuits.
Archuleta, 523 F.3d at 1283.
On summary judgment, the court must consider the evidence in the light most favorable
to the plaintiff when conducting the qualified immunity analysis. Behrens v. Pelletier, 516 U.S.
299, 309 (1996). If the plaintiff carries his burden on qualified immunity, the burden shifts to the
defendant to show that there are no genuine factual issues and he is entitled to judgment as a
matter of law. Albright, 51 F.3d at 1535.
IV.

ANALYSIS

14 

A. Federal Excessive Force Claims Subject to Cross-Motions for Summary
Judgment
To state an excessive force claim under the Fourth Amendment, the plaintiff must show
that (1) a “seizure” occurred and (2) the seizure was “unreasonable.” Bella v. Chamberlain, 24
F.3d 1251, 1255 (10th Cir. 1994) (quoting Brower v. County of Inyo, 489 U.S. 593 (1989)).
Because Defendants have invoked the qualified immunity defense, Plaintiffs must also show that
objectively reasonable officers could not have thought the force used was constitutionally
permissible, in other words, they violated clearly established law. Cortez v. McCauley, 478 F.3d
1108, 1128 (10th Cir. 2007).
Claims of excessive force are analyzed under the objective reasonableness standard of the
Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395-97 (1989). The reasonableness of the
officer’s belief as to the appropriate level of force should be judged from the perspective of an
officer on the scene, rather than with the 20/20 vision of hindsight. Id. at 396. Among the factors
that courts should consider in determining whether a police officer applied excessive force are
(1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the
safety of the officers or others, and (3) whether he is actively resisting arrest or attempting to
evade arrest by flight. Id. The calculus of reasonableness must allow for the fact that officers
must make split-second judgments in tense, rapidly evolving circumstances. Fisher v. City of Las
Cruces, 584 F.3d 888, 894 (10th Cir. 2009). Officers need not use the least intrusive means in the
course of a detention, only reasonable ones. Id.
1. Count VI – Pulling a gun on Plaintiff Lopez
An officer can stop and briefly detain a person for an investigation if the officer has a
reasonable articulable suspicion for suspecting the person of criminal activity, even if the officer
lacks probable cause. Cortez, 478 F.3d at 1115. The use of firearms, handcuffs, and other
15 

forceful techniques generally exceed the scope of an investigative detention and transform it into
an arrest. Id. at 1115-16. An arrest must be supported by probable cause, which exists only if the
officer knows facts that warrant a reasonable belief that the person has been or is committing a
criminal offense. See id. Displaying firearms during an investigatory stop, however, does not
violate the Fourth Amendment so long as police reasonably believe a suspect presents a serious
and imminent danger to the safety of the police and public. See United States v. Merkley, 988
F.2d 1062, 1063-64 (10th Cir. 1993).
Pointing a firearm directly at a person involves the immediate threat of deadly force, and
thus, “should be predicated on at least a perceived risk of injury or danger to the officers or
others, based upon what the officers know at that time.” Holland ex rel. Overdorff v. Harrington,
268 F.3d 1179, 1192 (10th Cir. 2001). “Where a person has submitted to the officers' show of
force without resistance, and where an officer has no reasonable cause to believe that person
poses a danger to the officer or to others, it may be excessive and unreasonable to continue to
aim a loaded firearm directly at that person, in contrast to simply holding the weapon in a
fashion ready for immediate use.” Id. at 1193 (emphasis added).
Plaintiff Lopez relies on Holland for the assertion that it was clearly established at the
time that it was unconstitutional for an officer to pull a weapon on a person who does not pose an
immediate threat. The Holland case involved holding children at gunpoint for ten to fifteen
minutes while law enforcement executed a search and arrest warrant. See id. at 1192-93.
Contrary to Plaintiff’s contention, the Tenth Circuit did not clearly establish in Holland that the
initial pointing of weapons was unreasonable, but instead held:
While the SWAT Team's initial show of force may have been reasonable under
the circumstances, continuing to hold the children directly at gunpoint after the
officers had gained complete control of the situation outside the residence was not

16 

justified under the circumstances at that point. This rendered the seizure of the
children unreasonable, violating their Fourth Amendment rights.
Id. at 1193.
Defendants argue that Holland does not establish that an officer cannot briefly point a
firearm at an adult suspect who the officer saw flee from him and for whom the officer had a
reasonable suspicion may have threatened a neighbor with deadly force. Defendants contend that
the case of Henry v. Storey, 658 F.3d 1235 (10th Cir. 2011), is more on point and supports their
position that Officer Rodriguez did not use excessive force. In Henry, police officers stopped the
plaintiff after running the vehicle’s license plate and getting a “hit,” indicating the license plate
number had been reported as stolen. Id. at 1238. Six officers arrived with guns aimed at the
plaintiff, who then responded to all commands to pull up his shirt, walk slowly backwards to the
officers, and kneel or lie down. See id. An officer then handcuffed him and placed him in the
back of the patrol vehicle, after which the officers determined that the rental vehicle was not
stolen. See id. at 1237-38. In holding that the officer did not use excessive force, the Tenth
Circuit reasoned:
Viewing the facts from a reasonable officer's point of view, Officer Storey did not
use excessive force by pointing his weapon at Mr. Henry. Officer Storey had
probable cause to believe Mr. Henry had stolen a vehicle, a felony. Officer Storey
could reasonably conclude that the driver posed an immediate threat to the safety
of the officers and the public—a driver caught with a stolen vehicle has strong
incentive to evade arrest, given the seriousness of the crime. Further, the means of
evading arrest were close at hand: the driver was in the vehicle with the engine
running. The incident took place late at night, within Albuquerque city limits.
Any resulting chase could place the officers and the public at risk. Although Mr.
Henry was not actively resisting or evading arrest by flight, under the
circumstances the amount of force used by Officer Storey was reasonable. To
conclude otherwise would merely second-guess an officer's on-the-ground
decision using the benefit of 20/20 hindsight.
Id. at 1239 (internal citations omitted). The Storey court further noted that only one prior Tenth
Circuit case – Holland – had held that the officers’ aiming of firearms, without more, constituted
17 

excessive force, but the Tenth Circuit explained that Holland had little bearing because it
involved detaining at gunpoint bystander children not suspected of any crime in the course of
executing a misdemeanor warrant. Id. In contrast, Officer Storey aimed his weapon at an adult
suspected of a serious crime. Id.
This case falls closer to the facts in Storey than Holland. Officer Rodriguez came to the
residence to investigate a threat to kill a neighbor. Under New Mexico law, a threat that causes
another person to reasonably believe that he is in danger of receiving an immediate battery is a
petty misdemeanor. N.M. Stat. Ann. § 30-3-1(B).9 Officer Rodriguez testified that Mr. Lopez
ran from him unprovoked to the residence in the dispatch. Mr. Lopez asserts he walked away
quickly. For purposes of this claim, the distinction between the two versions is insignificant to
the outcome. Accepting Plaintiff’s version as true, Mr. Lopez admittedly hurried away upon
seeing police and did not merely go about his business. Although Mr. Lopez contends he was
handing off his dog so he could come out and see what Officer Rodriguez wanted, based on the
fact that Mr. Lopez hurried away from Officer Rodriguez in the direction of the residence to
which dispatch had informed Officer Rodriguez was the scene of the purported death threat
between neighbors, it is objectively reasonable for Officer Rodriguez to have concluded at the
time he followed Mr. Lopez and attempted to detain him by pulling a gun on him, that Mr. Lopez
was attempting to avoid contact with law enforcement. Cf. State v. Harbison, 2007-NMSC-016,
¶¶ 17-20, 151 N.M. 392 (holding there was reasonable suspicion to stop defendant who was
standing in group of people with individual who just completed drug sale, because when officers

9

  Without elaboration,  Defendants assert that a threat to kill someone could either be a petty misdemeanor under
NMSA § 30-3-1(B), or a third-degree felony under NMSA § 30-3-3, depending on the facts known to Officer
Rodriguez. See Defs.’ Mem. 11 n.2, ECF No. 139. In light of this Court’s determination that the petty misdemeanor
was a sufficiently violent crime to cause a reasonable officer to have a reasonable concern for his safety, the Court
need not determine whether the facts known to Officer Rodriguez may have amounted to reasonable suspicion to
investigate assault with intent to commit a violent felony under New Mexico law.

18 

arrived, he hurried away in opposite direction). For all the foregoing reasons, Officer Rodriguez
had a reasonable suspicion to detain Mr. Lopez. See Illinois v. Wardlow, 528 U.S. 119, 124-26
(2000) (holding that suspect’s unprovoked flight upon noticing police in high crime area
supported investigative detention).
That conclusion, however, does not end the inquiry because the relevant question
becomes whether pointing the firearm was unreasonable in conducting an investigative detention
to protect officer safety, or whether it transformed the stop into an arrest unsupported by
probable cause. See Cortez, 478 F.3d at 1127 (“If the plaintiff can prove that the officers used
greater force than would have been reasonably necessary to effect a lawful arrest, he is entitled to
damages resulting from that excessive force.”). Although the suspected crime is a petty
misdemeanor, it is of a violent nature sufficient to cause an officer to have a reasonable safety
concern, and thus the first Graham factor was slightly in favor of Defendant Rodriguez. Cf.
Morris v. Noe, 672 F.3d 1185, 1195 (10th Cir. 2012) (holding that first Graham factor weighed
slightly in defendant’s favor where crime was assault, “by no means an insignificant offense,”
but where Oklahoma law treated it as a misdemeanor). Additionally, it was night and Officer
Rodriguez was alone. Those factors, combined with the nature of the dispatch call, combine to
give reason for Officer Rodriguez to believe the suspect could pose a threat to his safety, such
that the second Graham factor again weighs slightly in favor of Defendants. Third, Mr. Lopez
hurried away from Officer Rodriguez, reasonably indicating an attempt to evade detention by
flight, and consequently, the third Graham factor weighs in favor of Officer Rodriguez. Finally,
Officer Rodriguez pulled his gun on Mr. Lopez but changed to less lethal force as soon as he saw
Mr. Lopez was not armed.

19 

Tenth Circuit precedent indicates that officers in such circumstances are afforded leeway
in briefly pointing firearms at a suspect when there is some reason to believe a safety concern
exists. See Storey, 658 F.3d at 1238-40; Reeves v. Churchich, 484 F.3d 1244, 1247-49, 1260-61
(10th Cir. 2007) (after assuming that seizure occurred, concluding that detective and officer
acted reasonably in briefly pointing firearm at resident in first floor apartment while attempting
knock and talk with domestic violence assault suspect who lived in second floor apartment,
because officers were told suspect had access to firearms and pointing of weapons was of brief
and limited in duration to determining resident’s threat level); Rucker v. Hampton, 49 F. App’x
806, 811 (10th Cir. Oct. 18, 2002) (unpublished decision) (distinguishing Holland and holding
that officer was entitled to qualified immunity where “case involved a traffic stop unexpectedly
gone awry because the suspect evaded the officer's investigatory stop and fled into an unknown
residence; the officer was alone; the suspect did not submit to the officer's display of force and
refused to comply with any of his directions or requests; the officer perceived a threat to his
safety from the bystanding family; and only displayed his weapon very briefly as he retreated
from the home”). See also Merkley, 988 F.2d at (concluding that officers reasonably believed
suspect was dangerous based on information he had threatened to kill someone and was observed
acting violently by pounding his fists on steering wheel and were justified in displaying firearms
and using handcuffs to freeze temporarily the situation to ensure their and public’s safety).
Although the Court does not condone pointing firearms at suspects perfunctorily, considering the
totality of the circumstances and Tenth Circuit law, the Court concludes that it was not clearly
established that Officer Rodriguez’s actions violated Mr. Lopez’s Fourth Amendment rights.
Accordingly, the Court will deny Plaintiff Lopez’s motion for partial summary judgment as to
Count I and will grant Defendants’ request for summary judgment in their favor as to Count I.

20 

2. Count VII – Second through Eleventh Taser Discharges against
Ms. Gonzales
The use of a Taser applies force on the person “in an abrupt and violent matter.”
Cavanaugh v. Woods Cross City, 625 F.3d 661, 665 (10th Cir. 2010). It is excessive under the
Fourth Amendment to use a Taser against a suspect without having any reason to believe that a
lesser amount of force could not exact compliance. See Estate of Booker v. Gomez, 745 F.3d 405,
424-25 (10th Cir. 2014) (quoting Casey v. City of Federal Heights, 509 F.3d 1278, 1286 (10th
Cir. 2007)). On the other hand, the use of a Taser may not violate the Fourth Amendment where
the officer uses the Taser in a good faith effort to stop a detainee who is attempting to inflict
harm on others or on a person resisting arrest. See Porro v. Barnes, 624 F.3d 1322, 1329 (10th
Cir. 2010) (and citing cases).
Ms. Gonzales argues that, at the time of the second through eleventh Taser discharges,
she was face-down on the ground, not resisting or fleeing. She asserts that the undisputed facts
establish that Officer Rodriguez intentionally seized her with the initial Taser discharge and then
unreasonably applied additional, excessive force that was not objectively reasonable given that
she posed no threat to him.
Defendants contend that the additional stun cycles were objectively reasonable because
Officer Rodriguez feared for his safety when Mr. Lopez refused to comply with his commands
and attempted to remove the Taser prongs and stand. According to Defendants, Officer
Rodriguez discharged additional stun cycles to try to prevent Mr. Lopez from removing the
prongs and gain his compliance. Defendants assert that Officer Rodriguez did not realize he
stunned Ms. Gonzales instead of Mr. Lopez alone. Defs.’ Resp. 5, ECF No. 41. They contend he
is entitled to qualified immunity because he mistakenly stunned Plaintiff Gonzales and he cannot
be held liable for a mistake or negligent act.
21 

As an initial matter, Plaintiff Gonzales contends the videotape of the incident clearly
refutes Officer Rodriguez’s version of events and that the Court should disregard his sworn
testimony. Plaintiff instead urges the Court to determine that there is no genuine dispute that
Officer Rodriguez knew he was sending additional cycles through Ms. Gonzales. She points to
the fact that Defendant yelled at her to stop talking and shortly thereafter he discharged his Taser
again, arguing that this evidence unequivocally establishes that he tased her intentionally.
When a party tells a version of events blatantly contradicted by the record, so that no
reasonable jury could believe it, the court should not adopt that version when ruling on a motion
for summary judgment. Scott v. Harris, 550 U.S. 373, 380 (2007). It is the “rare, exceptional
case,” in which the standard is met and the Court can resolve disputed facts. Cordero v. Froats,
613 F. App’x 768, 769 (10th Cir. Sept. 2, 2015). The Court has reviewed the video evidence. The
video, however, does not clearly depict what is occurring through the critical stages of the
incident, as the video is mostly dark until approximately the two minute 18 second mark, leaving
the Court to rely primarily on the audio evidence. The audio reveals cries of a woman and a man
asking why the officer is hurting is wife. Officer Rodriguez can also be heard commanding
Plaintiffs to stop talking, and a Taser discharge occurs afterwards. Officer Rodriguez then,
however, makes commands to “stay on the ground,” so it is not completely clear whether he
discharged his Taser to stop Mr. Lopez from getting up or to make Ms. Lopez stop talking.
While the audio evidence would give a jury reason to doubt Officer Rodriguez’s credibility when
he avers that he did not know the additional discharges were stunning Ms. Gonzales, it is
nonetheless possible for a reasonable jury to find Officer Rodriguez credible and determine that
he believed Ms. Gonzales’ cries were because of the initial Taser discharge, that he did not know
his additional discharges were applying force on her, and that he discharged the Taser each time

22 

in an effort to stop Mr. Lopez from standing. Cf. White v. Martin, 425 F. App’x 736, 743 (10th
Cir. June 8, 2011) (unpublished opinion) (distinguishing Scott because videos left open questions
about degree of suspect’s resistance to arrest and timing and extent of force levied by trooper);
York v. City of Las Cruces, 523 F.3d 1205, 1210-11 (10th Cir. 2008) (concluding that officers
overstated relevance of Scott case where Supreme Court determined that unadulterated videotape
blatantly contradicted plaintiff’s version of events, because only part of incident involving York
and police officers was captured on audio tape, portions of which were unintelligible).
Because the video evidence does not satisfy the very difficult blatant contradiction
standard necessary for the Court to resolve the disputed issue of fact, in resolving Plaintiff
Gonzales’ motion for partial summary judgment, the Court must accept Officer Rodriguez’s
sworn statement of events in the light most favorable to him. Cf. Cordero, 613 F. App’x at 769
(holding that, although video evidence strongly supported moving parties’ position, evidence did
not blatantly contradict plaintiff’s witnesses and the court could not resolve disputed facts). The
Court will therefore analyze the parties’ respective motions in the light most favorable to the
non-moving party.
a. Whether a seizure occurred as a matter of law
In Brower v. County of Inyo, the Supreme Court stated that “the Fourth Amendment
addresses ‘misuse of power,’ not the accidental effects of otherwise lawful government conduct.”
489 U.S. 593, 596 (1989) (internal citation omitted). Negligent actions are not actionable under
Section 1983. See Sevier v. City of Lawrence, 60 F.3d 695, 699 & n. 7 (10th Cir. 1995).
“Violation of the Fourth Amendment requires an intentional acquisition of physical control.”
Brower, 489 U.S. at 596. “A seizure occurs even when an unintended person or thing is the

23 

object of the detention or taking, but the detention or taking itself must be willful.” Id. (internal
citations omitted).
As the Brower Court explained:
Thus, if a parked and unoccupied police car slips its brake and pins a passerby
against a wall, it is likely that a tort has occurred, but not a violation of the Fourth
Amendment. And the situation would not change if the passerby happened, by
lucky chance, to be a serial murderer for whom there was an outstanding arrest
warrant—even if, at the time he was thus pinned, he was in the process of running
away from two pursuing constables. It is clear, in other words, that a Fourth
Amendment seizure does not occur whenever there is a governmentally caused
termination of an individual's freedom of movement (the innocent passerby), nor
even whenever there is a governmentally caused and governmentally desired
termination of an individual's freedom of movement (the fleeing felon), but only
when there is a governmental termination of freedom of movement through means
intentionally applied. That is the reason there was no seizure in the hypothetical
situation that concerned the Court of Appeals. The pursuing police car sought to
stop the suspect only by the show of authority represented by flashing lights and
continuing pursuit; and though he was in fact stopped, he was stopped by a
different means—his loss of control of his vehicle and the subsequent crash. If,
instead of that, the police cruiser had pulled alongside the fleeing car and
sideswiped it, producing the crash, then the termination of the suspect's freedom
of movement would have been a seizure.
Id. at 596–97 (italics added). It is “enough for a seizure that a person be stopped by the very
instrumentality set in motion or put in place in order to achieve that result.” Id. at 599.
It is undisputed that Officer Rodriguez intended to stun Ms. Gonzales initially and she
fell to the ground face-down, where she remained during the incident. The initial use of the Taser
applied physical force against her and terminated her freedom of movement, constituting a
seizure within the meaning of the Fourth Amendment as to the initial discharge. See California v.
Hodari D., 499 U.S. 621, 624-25 (1991).
Defendants’ motion for summary judgment on Count VII nevertheless is based on the
argument that the second through eleventh Taser discharges of her were unintentional mistakes
that do not implicate her Fourth Amendment rights, because he did not mean to apply the

24 

subsequent applications of force to her. Even though the initial Taser discharge seized Ms.
Gonzales, to examine the subsequent applications of force through a Fourth Amendment lens,
the Court must examine the reasonableness of Officer Rodriguez’s intentional, not accidental,
applications of force. See Brower, 489 U.S. at 598-99 (indicating that critical question for seizure
is whether officer meant to stop suspect by instrumentality set in motion to achieve that result);
Watson v. Bryant, 532 F. App’x 453, 457-58 (5th Cir. Feb. 4, 2013) (“In the absence of evidence
showing that Bryant intended to use deadly force, we must conclude that the negligent shooting
here did not itself violate Watson's Fourth Amendment rights…. An undisputedly accidental
shooting, however, does not end the inquiry. Bryant still may have violated the Fourth
Amendment if he acted objectively unreasonably by deciding to make an arrest, by drawing his
pistol, or by not reholstering it before attempting to handcuff Derek.”); Milstead v. Kibler, 243
F.3d 157, 163-64 (4th Cir. 2011) (“Under the first form of mistake, where the seizure is directed
appropriately at the suspect but inadvertently injures an innocent person, the innocent victim's
injury or death is not a seizure that implicates the Fourth Amendment because the means of the
seizure were not deliberately applied to the victim…. In this vein, we have held that when
officers shoot at a suspect, but hit a bystander instead, no Fourth Amendment seizure occurs.”),
abrogated on other grounds by Pearson v. Callahan, 555 U.S. 223, 236 (2009); McCoy v. City of
Monticello, 342 F.3d 842, 847-& n.3 (8th Cir. 2003) (noting that, after an intentional seizure has
occurred when officer stopped car, an accidental shooting that occurs afterwards may not
implicate Fourth Amendment, but declining to address issue because post-seizure conduct was
objectively reasonable when considering intentional act of drawing the gun, not of firing gun);
Childress v. City of Arapaho, 210 F.3d 1154, 1157 (10th Cir. 2000) (finding, in hostage shooting
case, no Fourth Amendment seizure because officers intended to restrain minivan and fugitives,

25 

not hostages, and noting that injuries to hostages were unfortunate, but not unconstitutional,
accidental effect of otherwise lawful conduct).
Turning first to Defendants’ motion for summary judgment, the Court concludes that the
evidence, construed in Ms. Gonzales’ favor, could support a jury finding that Officer Rodriguez
intended to tase her and was not mistakenly and unknowingly doing so. The Court therefore
cannot conclude as a matter of law that no seizure occurred.
Switching to consideration of Plaintiff Gonzales’ summary judgment motion, she argues
that, as a matter of law, a seizure occurred because the evidence shows all Taser discharges were
not accidental. This Court, however, has found a genuine dispute of fact exists for the jury to
determine whether Officer Rodriguez knew and intended to tase Ms. Gonzales for any or all of
tasings 2-11. Next, Plaintiff Gonzales contends that, even if a question of fact exists as to
whether Officer Rodriguez intended to tase Ms. Gonzales, she is entitled to summary judgment
on the seizure issue because Officer Rodriguez intended to apply the force of the Taser against
Mr. Lopez, and recklessly tased her. Defendant argues, however, that the intent Officer
Rodriguez had to tase Mr. Lopez cannot be transferred to Ms. Gonzales, and that his
unintentional negligent conduct in tasering her does not amount to a seizure. Defendant relies on
the case of Conner v. Rodriguez, 891 F.Supp.2d 1228, 1239 (D.N.M. 2011), in which the
Honorable William Johnson held that it was not clearly established that an officer’s negligence in
firing a shotgun at a suspect, instead of the intended firing of a non-lethal bean bag shotgun,
violated the plaintiff’s Fourth Amendment rights.
Brower indicates that the Court must limit its analysis under the Fourth Amendment to
the intentional and volitional acts of the officer. The Court recognizes that this case presents an
imperfect fit with the innocent bystander line of cases aforementioned because Officer Rodriguez

26 

intended to, and did, seize Ms. Gonzales with his initial Taser discharge. Viewing the facts in
Defendants’ favor, however, the application of the additional discharges is a better fit within the
innocent bystander line of cases than within the category of cases in which a seizure has been
found when an officer intends to seize a suspect using a lower level of force (such as a Taser),
but accidentally uses a greater level of force (a gun) against the same intended suspect. Compare
Childress, 210 F.3d at 1156-57 (rejecting argument that officer’s willful act of firing at minivan
holding suspects and hostages amounted to seizure under Brower because officers did not intend
to seize hostages within meaning of Fourth Amendment), with Henry v. Purnell, 501 F.3d 374,
380-81 (4th Cir. 2007) (concluding seizure occurred because officer intended to stop suspect by
firing a weapon (Taser) at him and succeeded in doing so (by actually firing gun)). The seizure
issue thus should be a matter for a jury to decide, precluding summary judgment for Plaintiff
Gonzales. However, even if the seizure of Ms. Lopez from the initial Taser discharge constituted
a seizure as a matter of law, the question of reasonableness is limited to Officer Rodriguez’s
intentional conduct, which as discussed in the next section, is a question that the Court must
submit to the jury.
b. Whether the seizure was unreasonable
Defendants argue Officer Rodriguez is entitled to summary judgment and qualified
immunity because Mr. Lopez posed a threat to him by refusing to follow his commands and
attempting to stand, and that the application of the Taser against him was objectively reasonable
under the circumstances. It is undisputed that, at the time of the second through eleventh
discharges, Ms. Gonzales was face-down on the ground, did not pose an immediate threat to the
safety of Officer Rodriguez or anyone else, and was not resisting arrest at that time. A jury could
view the evidence in Plaintiffs’ favor and determine that Mr. Lopez knew he was applying force

27 

against Ms. Gonzales or that any mistake he made in believing he was not tasering her was not
reasonable. See Henry v. Purnell, 652 F.3d 524, 535 (4th Cir. 2011) (explaining that officer can
commit constitutionally unreasonable seizure as a result of an unreasonable factual mistake).
Even if a suspect initially poses a threat to an officer, it is clearly established that it is not
reasonable for an officer to repeatedly Taser an arrestee after the arrestee is under the officer’s
control and no threat to anyone. See Perea v. Baca, 817 F.3d 1198, 1204-05 (10th Cir. 2016).
Moreover, Plaintiffs have submitted evidence that Mr. Lopez did not move from a seated
position after he was tased, and if believed, a jury could find that Officer Rodriguez’s intentional
acts of discharging the Taser against Mr. Lopez 10 additional times was unreasonable. The
disputes of fact that exist preclude entry of qualified immunity and summary judgment in favor
of Defendant Rodriguez on Count VII.
Ms. Gonzales argues that she is entitled to summary judgment because the undisputed
facts show that Officer Rodriguez’s additional Taser discharges were unreasonable and
excessive. Construing the facts in Defendants’ favor, a reasonable jury could find that Officer
Rodriguez did not mean to apply force against her for discharges two through eleven; he did not
know he was doing so at the time, because he reasonably believed the Taser had the capability to
tase only one connected individual at a time; and he accidentally caused her additional harm.
Because the objective reasonableness inquiry is limited to Officer Rodriguez’s intentional and
volitional, not negligent, acts, the relevant inquiry is whether attempting to tase Mr. Lopez 10
additional times was objectively unreasonable as a matter of law. Cf. Watson, 532 F. App’x at
457-58 (“An undisputedly accidental shooting, however, does not end the inquiry. Bryant still
may have violated the Fourth Amendment if he acted objectively unreasonably by deciding to
make an arrest, by drawing his pistol, or by not reholstering it before attempting to handcuff

28 

Derek.”); McCoy, 342 F.3d at 847-48 (8th Cir. 2003) (where record showed officer intended to
draw gun to cause suspect to submit, but officer slipped on ice and accidentally discharged his
gun, “relevant inquiry is not whether Ouellette's act of firing his gun was ‘objectively
reasonable,’ but whether, under the totality of the circumstances, his act of drawing his gun was
‘objectively reasonable’”).
Turning to the Graham analysis with this framework in mind and construing all facts and
inferences in Defendants’ favor, the first factor – the severity of the crime – weighs slightly in
Defendants’ favor. Officer Rodriguez had reason to fear for his personal safety based on Ms.
Gonzales’ and Mr. Lopez’s actions in continuing to advance towards him and refusing to follow
his commands to stop. According to Officer Rodriguez, after the initial Taser discharge, Mr.
Lopez did not follow his commands to show his hands, but instead was removing the prongs and
trying to stand, causing him to fear for his personal safety. Officer Rodriguez filed charges
against both Plaintiffs for misdemeanor assault on a peace officer. See Pl.’s Ex. A, ECF No. 291. Although the severity of the crime was not great under the law, it was of a somewhat violent
nature, and thus weighs minimally in Defendants’ favor. Cf. Morris, 672 F.3d at 1195 (holding
that first factor weighed slightly in defendant’s favor where crime was assault, “by no means an
insignificant offense,” but where Oklahoma law treated it as a misdemeanor, and noting that in
excessive force inquiry court asks whether force used would be reasonably necessary assuming
arrest was warranted).
As for the second and third factors, a jury could find that Mr. Lopez was attempting to
stand up to confront and advance upon Officer Rodriguez, and that he was resisting detention. A
jury could therefore conclude that Officer Rodriguez acted reasonably with respect to his known,
intentional applications of force. Although admittedly a close question in light of the contents of

29 

Exhibit C, the Court ultimately concludes factual issues exist for a jury to decide and will deny
Plaintiff Gonzales’ partial motion for summary judgment.
B. Count VIII -- Fourth Amendment Claim (Shoplifting Cases)
Defendants have moved for summary judgment and qualified immunity on Count VIII.
The Fourth Amendment provides: “The 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
Warrants shall issue, but upon probable cause . . . .” U.S. Const., amend. IV. The Tenth Circuit
“has recognized the viability of malicious prosecution claims under § 1983.” Taylor v. Meacham,
82 F.3d 1556, 1560 (10th Cir. 1996). A § 1983 malicious prosecution claim includes the
following elements: (1) the defendant caused the plaintiff’s continued confinement or
prosecution; (2) termination of the original action in favor of plaintiff; (3) lack of probable cause
to support the original arrest, continued confinement, or prosecution; (4) the defendant acted
with malice; and (5) the plaintiff sustained damages. See Wilkins v. DeReyes, 528 F.3d 790, 799
(10th Cir. 2008); Pierce v. Gilchrist, 359 F.3d 1279, 1291-97 (10th Cir. 2004).
Defendants contend that they are entitled to summary judgment because the undisputed
facts show that the arrests and charges against Plaintiffs were supported by probable cause.
Defendants argue that three officers responded to Detective Rickards’ inquiry stating that Mr.
Lopez looked like the shoplifting suspect, and Asset Protection Officer Martinez and Agent
Boylston also believed they identified Plaintiffs as the shoplifters after comparing photographs of
Plaintiffs and the shoplifting suspects. Additionally, Defendant Rodriguez asserts he is entitled to
summary judgment because he merely was a source of identification for the affidavit supporting
the warrant and had no role in preparing the affidavit. Similarly, Defendant Rickards argues that
he, at most, made a good faith mistake in supplying information.
30 

1. Causation of Plaintiffs’ prosecution or confinement
Plaintiffs were arrested on a warrant issued by a neutral judge. The issuance of an arrest
warrant constitutes the institution of legal process for purposes of the tort of malicious
prosecution. Wilkins, 528 F.3d at 799. “Where the alleged Fourth Amendment violation involves
a search or seizure pursuant to a warrant, the fact that a neutral magistrate has issued a warrant is
the clearest indication that the officers acted in an objectively reasonable manner or, … in
‘objective good faith.’” Messerschmidt v. Millender, 565 U.S. 535 , 546 (2012) (quoting United
States v. Leon, 468 U.S. 897, 922-23 (1984)). The Supreme Court, however, has “recognized an
exception allowing suit when ‘it is obvious that no reasonably competent officer would have
concluded that a warrant should issue.’” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)). It is undisputed here that neither Officer Rodriguez nor Detective Rickards prepared the
warrants and Plaintiffs have not presented evidence that Defendants reviewed the warrants and
affidavits before they were filed, so this exception is not applicable.
An officer is also not shielded from liability for a Fourth Amendment violation if, in
support of an arrest warrant, he knowingly, or with reckless disregard for the truth, includes false
statements in the affidavit or omits from the affidavit information that, if included, would have
vitiated probable cause. Taylor, 82 F.3d at 1562. An official who causes others to file fraudulent
charges against an innocent civilian may similarly be subject to suit. See Pierce, 359 F.3d at
1292-93, 1296 (holding that forensic chemist who allegedly lied and distorted evidence to
convince prosecuting authorities to press charges cannot hide behind fact that she neither
initiated nor filed charges against plaintiff). A police officer who deliberately or recklessly
supplies misleading information or conceals or mischaracterizes exculpatory evidence to
influence the decision to prosecute cannot hide behind the decisions of other officials whom they

31 

defrauded. DeLoach v. Bevers, 922 F.2d 618, 621 (10th Cir. 1990), called into doubt on other
grounds by Mocek v. City of Albuquerque, 813 F.3d 912 (10th Cir. 2015). For a plaintiff to
demonstrate recklessness of an officer, he must present evidence that the officer entertained
serious doubts as to the truth of his allegations, and a fact-finder may infer reckless disregard
from circumstances evincing obvious reasons to doubt the veracity of the allegations. Beard v.
City of Northglenn, 24 F.3d 110, 116 (10th Cir. 1994). The failure to investigate a matter fully
rarely suggests a knowing or reckless disregard for the truth; to the contrary, it generally is
considered mere negligence. Id.
Based on the facts construed in Plaintiffs’ favor, after Detective Rickards’ identified Mr.
Lopez as the suspect to Agent Boylston, Agent Boylston compared Plaintiffs’ driver’s license
photographs and the video of the suspects and agreed, based on his own review, that Plaintiffs
were the shoplifters. He also relied on APO Martinez’s agreement that the male suspect looked
like Mr. Lopez. Agent Boylston wrote in the affidavits supporting arrest that, “Upon our review,
we observed” Plaintiffs in the surveillance video committing the shoplifting. The affidavits did
not contain the specific allegations that Officer Rodriguez and/or Detective Rickards identified
the shoplifters as Plaintiffs.
Although their statements were not included in the affidavit, Defendants could be liable
under Section 1983 if they intentionally or recklessly identified Plaintiffs as the suspects or
omitted material exculpatory information to set in motion a series of events that would skew
Agent Boylston’s own examination and identification and cause him to arrest Plaintiffs for the
shoplifting without probable cause. Cf. Beard, 24 F.3d at 115-16 (explaining that officer’s
mistake in representations to an expert on handwriting analysis may violate Fourth Amendment
if misrepresentations skewed handwriting analysis and warrant application so long as there was

32 

at least recklessness on officer’s part). A plaintiff may build a case of recklessness by inference
if there are facts suggesting that an officer entertained any doubt about the veracity of his
statement when he made it. See id.
The evidence against Defendant Rodriguez is that, after receiving a text of a photograph
of a couple from a surveillance camera, he responded to Detective Rickards that the couple
looked like Plaintiffs. There is no evidence that he had any other involvement in the investigation
of the shoplifting crime or role in preparing the warrant. Nor is there evidence that his specific
statement influenced Agent Boylston’s decision to prosecute. Rather, Agent Boylston testified
that he relied, in part, on Detective Rickards’ statements that Mr. Lopez was the suspect and that
a uniformed officer said that the man in the photograph was Phillip Lopez. There is no evidence
that Officer Rodriguez said that the suspect was Phillip Lopez; rather, he responded that the
suspects “look[ed] like” Plaintiffs. Nor is there evidence that Agent Boylston acted with malice
or conspired with Officer Rodriguez to falsely charge Plaintiffs with the crime. Plaintiff has not
presented sufficient evidence to show that Officer Rodriguez supplied misleading information to
influence or defraud Agent Boylston or that he knew or reasonably should have known that his
stating the suspects looked like Plaintiffs in response to a text message would cause Agent
Boylston to file a warrant application against Plaintiffs without probable cause. See Snell v.
Tunnell, 920 F.2d 673, 700 (10th Cir. 1990) (quoting Conner v. Reinhard, 847 F.2d 384, 396-97
(7th Cir. 1988)) (explaining that official who causes a citizen to be deprived of constitutional
rights can be held liable if official set in motion a series of events that he knew or reasonably
should have known would cause others to violate a citizen’s constitutional rights). The Court will
therefore grant summary judgment to Officer Rodriguez on Plaintiff’s Section 1983 malicious
prosecution claim based on the lack of evidence he caused the alleged constitutional violation.

33 

In contrast, the record shows that Detective Rickards played a more active role in the
shoplifting investigation and directly supplied investigative leads to Agent Boylston. The record
indicates that Agent Boylston relied on Detective Rickards for help identifying suspects in
shoplifting cases, and that in preparing the warrant applications, he relied on the information
from Detective Rickards as well as his own comparison and APO Martinez’s identification.
Viewing the facts in favor of Plaintiffs, a jury could find that Detective Rickards misleadingly
informed Agent Boylston that Mr. Lopez was the suspect and that a uniformed officer said that
the person in the photograph was Phillip Lopez, instead of more accurately reporting that four
officers thought the male suspect looked like Mr. Lopez. Detective Rickards also did not share
with Agent Boylston that Officer Milks stated that the suspects in the photographs could possibly
be Plaintiffs but that the photographs were too grainy to make a positive identification. A jury
could construe the facts in Plaintiffs’ favor and conclude that Detective Rickards’
misrepresentations and omissions skewed the independence of Agent Boylston’s comparison of
the photographs.
For these misrepresentations and omissions to be relevant, however, there must be
evidence that Detective Rickards entertained serious doubts as to the truth of his allegations or
evidence from which a fact-finder may infer reckless disregard from circumstances evincing
obvious reasons to doubt the veracity of the allegations. Unlike the other officers who said that
the suspects “looked like” Plaintiffs, the evidence in Plaintiffs’ favor shows that Detective
Rickards affirmatively stated that the male suspect was Mr. Lopez. A jury could find that the
surveillance photographs were too grainy and of too poor a quality to make such a positive
identification, and consequently, that there were obvious reasons to doubt that the suspect was
Mr. Lopez. Moreover, a jury might view Detective Rickards’ omission of Officer Milks’

34 

inability to make a positive identification and the text message exchange as evidence that
Detective Rickards acted, at least with recklessness, because he wanted Plaintiffs to be the
suspects after their alleged assault on and threats against a police officer. The Court is not
permitted to weigh evidence, but instead must submit questions of fact to a jury.
2. Termination of action in favor of plaintiff
Defendants next argue that the action did not terminate in Plaintiffs’ favor. The record,
however, indicates the deputy district attorney filed the Nolle Proseques due to a lack of
evidence that Plaintiffs committed the crimes. Accordingly, a jury could find that Plaintiffs’
evidence shows termination of the criminal case in their favor sufficient to satisfy the second
element. See Wilkins, 528 F.3d at 802-03 (explaining that filing of nolle prosequi is favorable
termination if circumstances surrounding dismissal indicates accused’s innocence or lack of
reasonable grounds for prosecution).
3. Lack of probable cause
“If evidence is falsified or withheld, the probable cause determination is made by
considering whether, excluding the falsified inculpatory evidence or including the withheld
exculpatory evidence, probable cause existed to prosecute.” McCarty v. Gilchrist, 646 F.3d 1281,
1286 (10th Cir. 2011). Because this malicious prosecution claim involves a judicial
determination of probable cause at the warrant application stage, the court examines what
information the officers revealed to the issuing judge. See Wilkins, 528 F.3d at 802 (“Judicial
determination becomes a misnomer if information required to support probable cause remains at
all times firmly lodged in the officer's head.”). Probable cause exists if the facts and
circumstances are sufficient to demonstrate a substantial probability that a crime has been
committed and that a specific individual committed the crime. Id. at 801 (quoting Wolford v.

35 

Lasater, 78 F.3d 484, 489 (10th Cir. 1996)). Where there are no genuine issues of material fact, a
court may make the probable cause determination as a matter of law. Bruner v. Baker, 506 F.3d
1021, 1028 (10th Cir. 2007). “[W]here there is a question of fact or ‘room for a difference of
opinion’ about the existence of probable cause, it is a proper question for a jury. Id.
For the same reasons aforementioned, the Court finds that there is room for a difference
of opinion concerning the quality of the video and photographic evidence and whether a
reasonable officer could view the video and photographic evidence and find that there was a
substantial probability that Plaintiffs were the shoplifters. Cf. Maxwell v. City of Indianapolis,
998 F.2d 431, 435 (7th Cir. 1993) (“To the extent that the presence or absence of probable cause
turns on the resemblance of Maxwell to the descriptors and photograph of the fugitive Moore,
the question necessarily becomes a factual one for the jury. In this regard, we are unable to say
that a jury could not reasonably conclude on these facts that the discrepancies are too significant
to support a finding of probable cause.”) (internal citations omitted). The affidavits Agent
Boylston submitted in support of Plaintiffs’ arrest warrants were devoid of information as to how
he identified Plaintiffs. Instead, he mentioned the surveillance footage and conclusorily stated
that Plaintiffs were the shoplifters. There is evidence that Detective Rickards told Agent
Boylston that Mr. Lopez was the shoplifter, and his statements caused Agent Boylston to make
the conclusory statement in the warrant application. A jury could weigh the evidence in favor of
Plaintiffs and find that a reasonable officer could not have concluded that Plaintiffs were the
suspects in the surveillance video, and that there was no probable cause to support their arrests.
4. Malice
Defendants contend Detective Rickards is entitled to summary judgment because he, at
most, made a good faith mistake in supplying information to Agent Boylston that a number of

36 

officers identified Plaintiffs as the couple in the photographs of the shoplifting suspects.
Although there is evidence that more than one officer thought Mr. Lopez looked like the man in
the photographs, as discussed above, a reasonable jury could rely on other evidence, including
the text messages and the use of the Hastings photograph in the text messages, to draw
inferences that Detective Rickards had an impermissible motive in trying to cause Plaintiffs to be
arrested in retaliation for the incident involving an assault on a fellow officer.
5. Qualified Immunity
At the time of the incident, it was clearly established that it was unconstitutional for an
officer to deliberately or recklessly supply misleading information or conceal or mischaracterize
exculpatory evidence to influence the decision to prosecute without probable cause. See
DeLoach, 922 F.2d at 621. Officers, however, are immune from an unlawful arrest suit if there
was “arguable probable cause,” in other words, if “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 same questions of fact that preclude summary judgment also preclude this Court
from determining as a matter of law that there was arguable probable cause. The Court
recognizes that probable cause or arguable probable cause may exist even when identifications
are not made with 100% certainty. Plaintiffs, however, have provided evidence from which a
jury could find that an officer could not reasonably have believed that there was a substantial
probability that Plaintiffs were the suspects based on the quality of the surveillance footage. As
explained by the Seventh Circuit in Maxwell:
[P]robable cause, according to an objective standard, does not require that these
particular officers believed the person arrested had committed an offense but that
a reasonable officer would have believed that person had committed an offense. If
that is the case, the arrest is lawful even if the reasonable belief was mistaken. But
37 

if a reasonable officer would not have believed that Maxwell was Moore, then the
officers, whatever they themselves did or did not believe, are acting contrary to
clearly established law and are not entitled to immunity. In effect, we have come
full circle on the probable cause question. Because we have already established
that the conclusion by the three officers concerning the existence of probable
cause may be found to be objectively unreasonable, they are not entitled to
qualified immunity at this juncture.
Maxwell, 998 F.2d at 436 (internal citations omitted).
In sum, construing all inferences in Plaintiffs’ favor, factual issues exist as to whether
Defendant Rickards deliberately or recklessly supplied misleading information to Agent
Boylston that Mr. Lopez was the male suspect in the surveillance footage, whether a reasonable
officer could have believed probable cause existed, and whether Detective Rickards’
representations and omissions caused Agent Boylston to file a complaint without probable cause.
Accordingly, the Court must deny Detective Rickards’ request for summary judgment and
qualified immunity on Count VIII. Cf. Sornberger v. City of Knoxville, 434 F.3d 1006, 1014-16
(7th Cir. 2006) (holding that genuine issues of material fact existed as to whether arresting
officers acted in good faith and had probable cause to make arrest, precluding summary
judgment and qualified immunity on false arrest claim in favor of officers, in light of evidence
that plaintiff bore only generic resemblance to individual captured on grainy surveillance video,
difference between eyewitness description of bank robber and actual appearance of arrestee, and
evidence indicating officers gave incomplete and one-sided information to state prosecutor to
mislead him into authorizing arrest).
C. State Law Claims
The New Mexico Tort Claims Act (“NMTCA”), N.M. Stat. Ann. 1978, § 41-4-1, et seq.,
waives immunity, as relevant here, for personal or bodily injury arising from assault, battery,
false imprisonment, false arrest, malicious prosecution or deprivation of constitutional rights
38 

caused by law enforcement officers acting within the scope of their duties. N.M. Stat. Ann. § 414-12. It is unclear whether the doctrine of qualified immunity, as defined in federal law, applies
to state tort claims brought under the NMTCA. See Romero v. Sanchez, 1995-NMSC-028, ¶ 25,
119 N.M. 690, 696 (1995) (“question[ing] the parties' assumption” that qualified immunity
applies to actions brought under NMTCA and noting that it “is an open question,” but declining
to address issue because it had not been raised by parties). New Mexico law, however, “permits
an officer ‘to use such force as [is] reasonably necessary under all the circumstances’ to effect an
arrest.” Tanberg v. Sholtis, 401 F.3d 1151, 1163 (10th Cir. 2005) (quoting Mead v. O’Connor,
344 P.2d 478, 479 (1959)). “When acting in good faith, the courts will afford [officers] the
utmost protection, and they will recognize the fact that emergencies arise when the officer cannot
be expected to exercise that cool and deliberate judgment which courts and juries exercise
afterwards upon investigations in court.” Mead, 344 P.2d at 480. Under New Mexico law, then,
an officer or entity may successfully defend against a charge of assault or battery by
demonstrating that the officer (1) used no more force than reasonably was necessary and (2)
acted in good faith. See id.
Generally, New Mexico courts place the determination of good faith and reasonableness
with the jury. See id.; Alaniz v. Funk, 1961-NMSC-140, ¶¶ 9-11, 69 N.M. 164 (noting that in
practically all wrongful death cases against officer using lethal force to apprehend felon, matter
of reasonableness of actions of officer to effectuate arrest should be submitted to jury). New
Mexico courts, however, have demonstrated a willingness to grant summary judgment to police
officers when the facts show that the minds of reasonable jurors could not differ that the officer
acted reasonably under the circumstances. See Alaniz, 1961-NMSC-140, ¶¶ 9-11 (holding that,

39 

where record indicated that reasonable minds of jury could not but agree that officer acted
reasonably in attempting to apprehend felon, directed verdict was appropriate).
1. Count I – Assault for Pointing a Gun at Plaintiff Lopez
Under New Mexico law, “assault requires a ‘threat or menacing conduct which causes
another person to reasonably believe that he is in danger of receiving an immediate battery.’”
Romero, 1995-NMSC-028, ¶ 12 (quoting N.M. Stat. Ann. § 30-3-1(B)); see also Baca v. Velez,
1992-NMCS-053, ¶ 4, 114 N.M. 13. Battery occurs when a person “acts intending to cause a
harmful or offensive contact with the person of the other or a third person, or an imminent
apprehension of such a contact, and … an offensive contact with the person of the other directly
or indirectly results.” State v. Ortega, 1992-NMCA-003, ¶ 12, 113 N.M. 437 (quoting
Restatement (Second) of Torts §§ 18 (1965)). For the assault or battery to fall within the law
enforcement waiver of immunity, the officer must have intended to engage in unlawful conduct
that invades the protected interest of another. See Caillouette v. Hercules, Inc., 1992-NMCA008, ¶ 17, 113 N.M. 492. Consequently, “where a police officer’s actions in detaining or
arresting a suspect are not unlawful, the officer is not subject to liability for the torts of assault or
battery.” Realivasquez v. City of Albuquerque, No. Civ. 03-0015 MCA/KBM, Mem. Op. and
Order 29-30, ECF No. 47 (citing Restatement (Second) of Torts, § 121). If the means employed
by the officer to lawfully arrest a suspect are excessive of those he is privileged to use, the
officer is liable for only the amount of force that is excessive. Id. at 30 (citing Restatement
(Second) of Torts § 133).
The parties have cross-motions for summary judgment on this claim. Plaintiff Lopez
contends that Officer Rodriguez’s pointing a gun at him amounted to a threat that caused him to

40 

reasonably believe he was in danger of receiving an immediate battery, and thus, he is entitled to
summary judgment. His arguments mirror those supporting his claim for summary judgment
under the Fourth Amendment. Alternatively, Plaintiff argues that a question of fact exists to deny
Defendants’ request for summary judgment. Defendant Rodriguez asserts he is entitled to
summary judgment because he acted in good faith with a reasonable suspicion to detain Mr.
Lopez and legitimate safety concerns to justify his brief pointing of his firearm at Mr. Lopez.
As discussed above, the Court has concluded that Officer Rodriguez had a reasonable
suspicion to detain Mr. Lopez, a reason to believe that there was a risk of danger to his personal
safety, and, based on the law at the time, Officer Rodriguez would not have known that he could
not briefly point his gun at Mr. Lopez to accomplish the detention. Based on the undisputed facts
and the law at the time of the incident, no reasonable jury could conclude that Officer Rodriguez
knew that he was acting unlawfully by using more force than reasonably necessary to detain Mr.
Lopez. The Court will therefore deny Plaintiff Lopez’s motion for summary judgment on Count I
and grant Defendant Rodriguez’s motion for summary judgment on Count I.
2. Count II – Assault and Battery (Initial Tasing of Both Plaintiffs)
Defendants Rodriguez and the City assert they are entitled to summary judgment on
Count II, because assuming Plaintiffs’ version of events to be true, Mr. Lopez continued to
approach Officer Rodriguez to determine why he had drawn the gun and moved quickly in front
of Ms. Gonzales to protect her from the Taser, in violation of Officer Rodriguez’s commands.
They also contend that tasing Ms. Gonzales was reasonable because, after he tased Mr. Lopez,
she moved toward Officer Rodriguez, as evidenced by the fact that she was closer to Officer
Rodriguez in the video.

41 

According to Plaintiffs’ evidence, however, Mr. Lopez followed Officer Rodriguez’s
orders to approach, he closed distance to show him that his hands were in the air and to ask what
he wanted, Mr. Lopez moved in front of Ms. Gonzales when he saw the infrared targeting light
of the Taser on her because he believed it was a targeting light from a gun, and Officer
Rodriguez tasered Ms. Gonzales without provocation. Viewing the evidence in Plaintiffs’ favor,
Plaintiffs can satisfy the elements of battery and a jury could find that the means employed by
Officer Rodriguez to arrest them were excessive of those he is privileged to use because they
posed no threat to him, did not resist or flee, and obeyed his commands. Defendants are therefore
not entitled to summary judgment on Count II.
3. Count III – Battery (Tasings 2-11 of Plaintiff Gonzales)
Plaintiff Gonzales has also moved for summary judgment on her battery claim against
Officer Rodriguez and the City. Defendants argue Officer Rodriguez is entitled to summary
judgment because the subsequent tasering of Ms. Gonzales was an accident. An element of
battery is intent to cause a harmful or offensive contact with the person of the other or a third
person, or an imminent apprehension of such a contact. See Ortega, 1992-NMCA-003, ¶ 12.
Plaintiff argues that law enforcement officers may be held liable under Section 41-4-12 for
negligently inflicting one of the enumerated torts, and that she is entitled to summary judgment
because Defendants admit Officer Rodriguez was negligent when tasing her the ten additional
times. The cases upon which she relies apply where an officer’s negligence results in another
person committing a battery, a situation not occurring here. See, e.g., Quezada v. County of
Bernalillo, 944 F.2d 710, 720 n.5 (10th Cir. 1991) (“Since the Act, as currently interpreted,
makes supervisors liable for the batteries of their subordinates when supervisors negligently fail
to train or supervise their subordinates, Sheriff Campbell cannot claim he is immune from suit.”);
42 

Blea v. City of Espanola, 1994-NMCA-008, ¶¶ 12-13 (explaining that there is no waiver of
immunity under Section 41-4-12 for simple negligence, but that waiver applies where officer’s
negligence causes a third party to commit an enumerated tort). Because a question of fact exists
as to whether Officer Rodriguez intended to stun Plaintiff Gonzales ten additional times, and
intent is an essential element of battery, the Court cannot grant summary judgment to either party
on Count III.
4. Count IV – False Arrest and Imprisonment (Shoplifting cases)
“The tort of false imprisonment occurs when a person intentionally confines or restrains
another person without consent and with knowledge that he has no lawful authority to do so.”
Santillo v. N.M. Dept. of Pub. Safety, 143 N.M. 84, 88 (Ct. App. 2007). The torts of false arrest
and false imprisonment are similar in that a false arrest is merely one way of committing false
imprisonment. Id. Notably, “[a]n officer who has probable cause to arrest a person cannot be
held liable for false arrest or imprisonment, since probable cause provides him with the
necessary authority to carry out the arrest.” Id. 
Defendant Rodriguez participated in the arrest of Plaintiffs pursuant to a judiciallyauthorized warrant that he did not prepare. Moreover, there is no evidence that he reviewed the
contents of the warrant application prior to participating in the arrest such that he would know
whether the warrant was supported by probable cause. Consequently, even if a jury could find
from the evidence that Defendant Rodriguez harbored malice against Plaintiffs, the undisputed
facts establish that he did not execute the arrest with knowledge that he had no lawful authority
to do so. As for Defendant Rickards, he did not participate in the arrest of Plaintiffs. The claim
against Defendant Rickards for providing false information that contributed to the bringing of

43 

charges against Plaintiffs without probable cause falls under the tort of malicious abuse of
process, rather than false arrest. Defendants are therefore entitled to summary judgment on
Count IV.
5. Count V – Malicious Abuse of Process
The elements of a malicious abuse of process claim are: (1) the use of process in a
judicial proceeding that would be improper in the regular prosecution or defense of a claim or
charge; (2) a primary motive in the use of process to accomplish an illegitimate end; and (3)
damages. Durham v. Guest, 2009-NMSC-007, ¶ 29, 145 N.M. 694. Misuse of process can be
shown in one of two ways: (1) filing a complaint without probable cause, or (2) an irregularity or
impropriety suggesting extortion, delay, or harassment. Fleetwood Retail Corp. of N.M. v.
LeDoux, 2007-NMSC-047, ¶12, 164 P.3d 31. Probable cause, in the context of a malicious abuse
of process claim, is “a reasonable belief, founded on known facts established after a reasonable
pre-filing investigation that a claim can be established to the satisfaction of a court or jury. The
lack of probable cause must be manifest.” Mocek v. City of Albuquerque, 813 F.3d 912, 936
(10th Cir. 2015) (quoting Fleetwood, 164 P.3d at 35) (emphasis added by Tenth Circuit). Where
there was at least arguable probable cause to arrest the plaintiff, the lack of probable cause was
not manifest. See id. at 937 (“because there was at least arguable probable cause to arrest
[plaintiff] for concealing identity, we cannot conclude that any lack of probable cause was
manifest”). Improper motive alone cannot support a malicious abuse of process claim; rather, a
plaintiff must show a use of process that involves a procedural irregularity or misuse of
procedural devices or indicates the wrongful use of proceedings, such as an extortion attempt. Id.
(citing Lenscrafters, Inc. v. Kehoe, 282 P.3d 758, 766 (N.M. 2012), and Durham, 204 P.3d at
26).
44 

Resolution of these claims follows the Court’s reasoning for its conclusion on the § 1983
malicious prosecution claim. Even assuming the facts and inferences in the record show
Defendant Rodriguez harbored malice against Plaintiffs, there is insufficient evidence against
him on the misuse of process element. He is thus entitled to summary judgment on Count V. A
jury, however, could construe all evidence and inferences in Plaintiffs’ favor and find that
Detective Rickards deliberately or recklessly misled Agent Boylston to encourage him to file a
complaint against Plaintiffs without arguable probable cause. The Court will therefore deny
summary judgment to Detective Rickards on Count V.
6. City of Las Cruces’ Request for Summary Judgment
The City argues it is entitled to summary judgment on Counts I-V because neither Officer
Rodriguez nor Detective Rickards is liable or negligent. The Court has agreed with Defendants
that Officer Rodriguez cannot be held liable for Count I and that neither Defendant Rodriguez
nor Defendant Rickards is liable for Count IV, and thus the City is likewise entitled to summary
judgment on Counts I and IV. The Court, however, has concluded that a jury must resolve
questions of fact as to Defendant Rodriguez’s liability for Counts II and III and as to Defendant
Rickards’ liability for Count V, and therefore, the City’s motion for summary judgment is denied
as to those claims.
IT IS THEREFORE ORDERED that
1. Plaintiff Feliz Gonzales’ Motion for Partial Summary Judgment against Defendants
City and Rodriguez (ECF No. 28) is DENIED;
2. Plaintiff Phillip Lopez’s Motion for Partial Summary Judgment against Defendants
City and Rodriguez (ECF No. 131) is DENIED; and
45 

3. Defendants’ Motion for Summary Judgment Based on Qualified Immunity and
Governmental Immunity (ECF No. 138) is GRANTED IN PART AND DENIED
IN PART as follows:
a. Defendants’ request for summary judgment on Count I is GRANTED;
b. Defendants’ request for summary judgment on Count IV is GRANTED;
c. Defendants’ request for summary judgment on Count V is GRANTED as to
Defendant Rodriguez but is DENIED as to Defendant Rickards and the
City;
d. Defendants’ request for summary judgment on Count VI (Pointing a Gun at
Plaintiff Lopez) is GRANTED based on qualified immunity;
e. Defendants’ request for summary judgment and qualified immunity on Count
VIII is GRANTED as to Defendant Rodriguez but DENIED as to
Defendant Rickards; and
f. Defendants’ request for summary judgment on Counts II, III, and VII is
DENIED.

____________________________________
UNITED STATES DISTRICT JUDGE

46