Payne v. Wilder et al

Filing 63

MEMORANDUM OPINION AND ORDER by District Judge James O. Browning granting in part and denying in part Defendant's Motion for Summary Judgment on the Basis of Qualified Immunity 38 . (csg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CARA PAYNE,
Plaintiff,
vs.

No. CIV 16-0312 JB/GJF

LEE WILDER; MAYFRITZ BUCAG and
DAVID CEBALLES,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Defendant’s Motion for Summary Judgment
on the Basis of Qualified Immunity, filed February 23, 2017 (Doc. 38)(“MSJ”). The Court held
a hearing on June 5, 2017. The primary issues are: (i) whether the undisputed material facts
entitle the Defendant Lee Wilder to qualified immunity, because the Plaintiff Cara Payne (“C.
Payne”) has not demonstrated that Wilder violated her clearly-established constitutional rights
when he executed a traffic stop of C. Payne for a suspended driver’s license and further
discussed with her -- and her ex-husband -- his investigation into allegations against her for child
abuse, allegations which he considered to be cause to not entitle her to custody of her children in
accordance with a civil custody agreement; and (ii) whether Wilder is entitled to summary
judgment on C. Payne’s claims brought pursuant to the New Mexico Constitution and premised
in Wilder’s same conduct. Because the Court concludes that, on this record of undisputed
material fact, Wilder is entitled to qualified immunity on C. Payne’s claims sounding in federal
due process and unreasonable search and seizure theories, the Court will grant summary
judgment as to those federal claims. The Court further concludes that Wilder is entitled to
summary judgment as to C. Payne’s claims sounding in New Mexico substantive due process

and unreasonable search and seizure, because this record of undisputed material facts
demonstrates that Wilder did not commit such constitutional violations in the course of his
alleged conduct. The Court concludes, however, that this record of undisputed material facts
does not entitle Wilder to summary judgment as to C. Payne’s claims sounding in New Mexico
procedural due process, because C. Payne has asserted facts creating a genuine dispute whether
Wilder’s conduct resulted in a state-deprivation of her custody over her children without
meaningful process before -- or after -- the deprivation. Accordingly, the Court grants in part
and denies in part Wilder’s MSJ.
FACTUAL BACKGROUND
Before the Court addresses the MSJ’s proffer of undisputed facts, the Court provides a
brief synopsis of the background facts giving rise to C. Payne’s case. The Court provides this
background only for ease of readership and context. The Court draws recitation of the relevant
background facts from the Plaintiff’s Amended Complaint for Damages and Petition for
Declaratory and Injunctive Relief, filed April 19, 2016 (Doc. 1-2)(“Complaint”).
1.

Background Facts Giving Rise to the Complaint.

The Complaint alleges that, on July 8, 2015, Wilder, a law enforcement officer in Otero
County, New Mexico, stopped and seized C. Payne in Alamogordo, New Mexico, for driving
with a suspended license. See Complaint ¶ 7, at 1. Wilder represented that he was conducting a
child abuse investigation, forced C. Payne to do a field sobriety test, and attempted to force C.
Payne to allow him to search a home where C. Payne was staying as a house sitter for the owner
of the home. See Complaint ¶¶ 7-11, at 2-3. Wilder -- C. Payne alleges -- did not have
reasonable suspicion to support the notion that Payne was intoxicated. See Complaint ¶¶ 8-9, at
2. Regarding the home search, C. Payne refused to allow the search, and told Wilder that she

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had previously been under investigation by the State of New Mexico Children, Youth, and
Families Department (“CYFD”), but that the investigation did not support allegations of abuse.
See Complaint ¶¶ 10-11, at 2-3. Upon her refusal, Wilder contacted Defendant Mayfritz Bucag,
a CYFD investigator, who C. Payne alleges then contacted C. Payne’s ex-husband and ordered
him to not allow C. Payne custody of their children. See Complaint ¶¶ 12-14, at 3. C. Payne did
not have custody or visitation rights after this traffic stop, as a consequence of Wilder and
Bucag’s directive, despite having the legal right to custody and visitation. See Complaint ¶¶ 1516, at 3.
Wilder and Bucag then petitioned the district attorney’s office in Otero County to file
criminal charges against C. Payne for refusing to allow the search of a house where she was
staying as a house sitter for the home’s owner. See Complaint ¶ 18, at 4. In particular, the
criminal charges would flow pursuant to N.M. Stat. Ann. § 30-6-4, which relates to obstruction
of reporting or investigating child abuse or neglect. See Complaint ¶ 19, at 4. Wilder expects
that charges will be filed against C. Payne. See Complaint ¶ 20, at 4. Defendant David Ceballes
was the District Attorney for Otero County when C. Payne filed her Complaint. See Complaint ¶
6, at 2.
2.

The Undisputed Facts That Wilder’s MSJ and the Record Establish.

“Deputy Lee Wilder was a Deputy Sheriff with the Otero County Sheriff’s Officer
(‘OCSO’) at the time of the July 8, 2015, incident.” MSJ ¶ 1, at 3 (asserting this fact). See
Plaintiff’s Response to Defendant Wilder’s Motion for Summary Judgment ¶ 1, at 1, filed March
27, 2017 (Doc. 50)(“Response”)(not disputing this fact).

“Deputy Wilder has never been

employed by the New Mexico [CYFD].” MSJ ¶ 2, at 3 (asserting this fact). See Response ¶ 2,
at 1 (not disputing this fact). “On July 8, 2015, Deputy Wilder received a referral from CYFD

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and Intake Report as part of an investigation into an anonymous tip alleging child abuse and
neglect of Plaintiff Cara Payne’s two children.” MSJ ¶ 3, at 3 (asserting this fact). See Response
¶ 3, at 1 (not disputing this fact). “Upon receipt of the CYFD referral and Intake Report, Deputy
Wilder ran a background check on Plaintiff, Plaintiff’s ex-husband, Robert Payne [(‘R. Payne’)],
and Richard Herndon, including a check on the status of their driver’s licenses and determined
that Plaintiff’s driver’s license was suspended.”

MSJ ¶ 4, at 3 (asserting this fact).

See

Response ¶ 4, at 1 (not disputing this fact). “As part of the CYFD investigation, Deputy Wilder
visited with Robert Payne, the children’s father, to assess the validity of the facts in the
anonymous tip.” MSJ ¶ 5, at 3 (asserting this fact)(citing Deposition of Lee Wilder at 10:19-21
(taken November 16, 2015), filed February 23, 2017 (Doc. 38-1)(“Wilder Depo.”).1

1

C. Payne purports to dispute this assertion of fact, stating: “Plaintiff denies the
allegations in Paragraph Five. The portion of the record cited explains that Mr. Payne was
contacted but does not supply a basis for the reason of the contact.” Response ¶ 5, at 1. The
cited portions of the Wilder Depo. provide: “So then I contacted the second location listed which
is the father, Robert Payne, at 708 and a half Adams.” Wilder then, in Defendant Lee Wilder’s
Reply in Support of Motion for Summary Judgment on the Basis of Qualified Immunity (Doc.
38), filed April 17, 2017 (Doc. 49)(“Reply”), asserts that, “[i]n context, Deputy Wilder’s
deposition clearly reveals that the entire investigation started with an anonymous tip, which
Deputy Wilder followed up with to obtain background information, as provided in [MSJ ¶¶ 3-4,
at 3]. On this fact, Plaintiff presents no material dispute.” Reply ¶ 1, at 2. Regarding the
litigants’ tasks when litigating a motion for summary judgment, the D.N.M. LR-Civ require:
Statement of Material Facts. The moving party must file with the motion a
written memorandum containing a short, concise statement of the reasons in
support of the motion with a list of authorities relied upon (the “Memorandum”).
A party opposing the motion must file a written memorandum containing a short,
concise statement of the reasons in opposition to the motion with authorities (the
“Response”). The moving party may file a written reply memorandum with
authorities (the “Reply”).
•

The Memorandum must set out a concise statement of all of the
material facts as to which the movant contends no genuine
issue exists. The facts must be numbered and must refer with
particularity to those portions of the record upon which the
movant relies.
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•

The Response must contain a concise statement of the material
facts cited by the movant as to which the non-movant contends
a genuine issue does exist. Each fact in dispute must be
numbered, must refer with particularity to those portions of the
record upon which the non-movant relies, and must state the
number of the movant’s fact that is disputed. All material facts
set forth in the Memorandum will be deemed undisputed unless
specifically controverted.
The Response may set forth
additional facts other than those which respond to the
Memorandum which the non-movant contends are material to
the resolution of the motion. Each additional fact must be
lettered and must refer with particularity to those portions of
the record upon which the non-movant relies.

•

The Reply must contain a concise statement of those facts set
forth in the Response which the movant disputes or to which
the movant asserts an objection. Each fact must be lettered,
must refer with particularity to those portions of the record
upon which the movant relies, and must state the letter of the
non-movant’s fact. All material facts set forth in the Response
will be deemed undisputed unless specifically controverted.

D.N.M. LR-Civ. 56.1(b). At the outset, in this case, neither the Response nor the Reply “letter[]”
their paragraphs as required; the Court, however, is -- without extra effort -- nonetheless capable
of attributing each assertion to its response. Regarding the present dispute, whereby C. Payne
disputes that Wilder has adequately supported his assertions that Wilder contacted R. Payne “[a]s
part of the CYFD investigation,” MSJ ¶ 5, at 3, and “to assess the validity of the facts in the
anonymous tip,” MSJ ¶ 5, at 3, the Court notes that C. Payne proffers no evidence which creates
a dispute of these assertions and instead only argues that the assertions lack support in the record,
see Response ¶ 5, at 1. The Court is not persuaded, however, that the assertions lack support in
the record, because the course of the Wilder Depo. appears to be his chronological detailing of
his investigation into the anonymous tip regarding C. Payne’s alleged child abuse. See Wilder
Depo. at 8:8-15:16. Wilder discussed his actions at the “beginning in order to start the
investigation,” Wilder Depo. at 8:17-20, that he discovered R. Payne’s contact information after
running the license plate for C. Payne’s vehicle, and that he then contacted R. Payne and
discussed how he had observed C. Payne’s home, and had run C. Payne’s license plate, and as a
result had discovered R. Payne’s address, see Wilder Depo. at 9:17-11:10. Wilder explained that
he next discussed the anonymous tip and C. Payne’s whereabouts with R. Payne. See Wilder
Depo. at 11:10-21. The Court concludes, then, that the record supports Wilder’s assertions,
because C. Payne has not specifically controverted the assertions with evidence in the record,
leaving the Court without the ability to question the assertion’s veracity in light of the context.
The Court deems the assertions -- that Wilder contacted R. Payne “[a]s part of the CYFD
investigation,” MSJ ¶ 5, at 3, and “to assess the validity of the facts in the anonymous tip,” MSJ
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The anonymous tip explained that the reporting party believed Plaintiff’s children
may 1) be subject to abuse, neglect, and potential physically harm, because
Plaintiff resided with a felon wanted by other felons and law enforcement; 2)
Plaintiff was likely using methamphetamine based upon her appearance; and 3)
predicted Plaintiff might be found at 10 Coyote Run in La Luz, New Mexico.
MSJ ¶ 6, at 3-4 (asserting this fact). See Response ¶ 6, at 1 (not disputing this fact). “Mr. Payne
corroborated most of the information in the tip explaining that he suspected Plaintiff was on
methamphetamine, was covered in scabs, suffered severe moods swings, and that Plaintiff’s
husband Richard Herndon was a felon living with Plaintiff.” MSJ ¶ 6, at 3-4 (asserting this
fact)(citing Wilder Depo. at 12:1-25).2 “Deputy Wilder traveled to the house Plaintiff was then

¶ 5, at 3 -- undisputed.
2

C. Payne purports to dispute this assertion of fact, stating: “Plaintiff denies the
allegations in Paragraph Seven. The portion of the record cited shows that Mr. Payne had
suspicions but no facts to corroborate any suspicions listed in the anonymous report.” Response
¶ 7, at 1. Wilder, in Defendant Lee Wilder’s Reply in Support of Motion for Summary Judgment
on the Basis of Qualified Immunity (Doc. 38) ¶ 2, at 2, filed April 17, 2017 (Doc. 49)(“Reply”),
provides: “Deputy Wilder stated only that Mr. Payne presented facts that corroborated the
anonymous tip” and therefore maintains his assertion. Reply ¶ 2, at 2. The cited portions of the
Wilder Depo. indicate that, based on Wilder’s impression of his conversation with R. Payne, “he
basically confirmed his suspicions of most of the things” that C. Payne was doing. Wilder Depo.
at 12:1-12. According to Wilder, R. Payne “told me that he suspected that she was on drugs.
And he told me that he knew that Richard . . . is the person that’s wanted on the felony charges,
[and] was staying with her.” Wilder Depo. at 12:16-19. Wilder also indicated that R. Payne
“confirmed that she -- the scabs and the severe mood swings, and that she was extremely thin.”
Wilder Depo. at 12:22-24. Black’s Law Dictionary defines “corroborate” to mean “[t]o
strengthen or confirm; to make more certain.” Corroborate, Black’s Law Dictionary at 397 (9th
ed. 2009). Wilder is asserting only that “Mr. Payne corroborated most of the information in the
tip explaining that he suspected Plaintiff was on methamphetamine, was covered in scabs,
suffered severe moods swings, and that Plaintiff’s husband Richard Herndon was a felon living
with Plaintiff.” MSJ ¶ 6, at 3-4. C. Payne does not create a genuine dispute by arguing -without providing alternative evidence -- that “the record cites shows that Mr. Payne had
suspicions but no facts to corroborate any suspicions listed in the anonymous report.” Response
¶ 7, at 1. Instead, it appears C. Payne is asking the Court to weigh the evidence, and conclude
that there is a genuine dispute of fact on this issue, because the alignment of R. Payne’s
suspicions regarding C. Payne’s conduct with the allegations made by the anonymous tip is not
sufficient corroboration. In that regard, C. Payne has not specifically controverted Wilder’s
assertion that “Mr. Payne corroborated most of the information in the tip explaining that he
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residing at located at #10 Coyote Run in La Luz, New Mexico to continue the investigation but
no one answered the door.” MSJ ¶ 8, at 4 (asserting this fact). See Response ¶ 8, at 1 (not
disputing this fact). “Later on July [8], 2015, Deputy Wilder stopped Plaintiff’s vehicle knowing
Plaintiff was driving with a suspended driver’s license, to follow up with her on the
investigation, and because he suspected Mr. Herndon could be hiding behind the tinted windows
in the vehicle.” MSJ ¶ 9, at 4 (asserting this fact). See Response ¶ 9, at 2 (not disputing this
fact).
During the traffic stop, Deputy Wilder came to believe Plaintiff was under the
influence of methamphetamines relying on the information in the anonymous tip,
his knowledge that she had been associated with methamphetamine users in the
past, and because she appeared covered in scabs, shaking, and extremely thin
consistent with methamphetamine usage.
MSJ ¶ 10, at 4 (asserting this fact)(citing Wilder Depo. at 39:3-8; July 8, 2015, Traffic Stop
Video, filed in Clerk’s Office on May 25, 2017 (“Traffic Stop Video”), see Notice of Filing
Audio/Visual Material as Exhibit C to Defendant Lee Wilder’s Motion for Summary Judgment
on the Basis of Qualified Immunity and Memorandum in Support Thereof [Doc. 38], filed May
25, 2017 (Doc. 57)).3 “Also during the traffic stop, Deputy Wilder informed Plaintiff that she

suspected Plaintiff was on methamphetamine, was covered in scabs, suffered severe moods
swings, and that Plaintiff’s husband Richard Herndon was a felon living with Plaintiff,” MSJ ¶ 6,
at 3-4, so the Court deems the assertion undisputed.
3
C. Payne purports to dispute this assertion of fact, stating:
Defendant stated that Plaintiff was shaky, had scabs all over her body, and [was]
extremely thin. First, Defendant must show that he reasonably believed that
Plaintiff was under the influence of methamphetamines. Second, Defendant
stated that Plaintiff had scabs all over body when she was obviously clothed and
he could not see her entire body. Third, Defendant had not known Plaintiff before
the encounter and could not gauge her thinness. Finally, in order for Defendant’s
belief to be “reasonable” it would have to be based on some type of training or
experience but was not.

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Response ¶ 10, at 2 (emphasis in original). Wilder testified:
I was still very suspicious. She was shaking, extremely thin. She did have scabs
all over her body, that is obviously indication[] of methamphetamine usage. The
fact she had been around methamphetamine in the past in reference to these
search warrants. Obviously I did not believe it was enough to arrest her otherwise
I would have.
Wilder Depo. at 39:3-9. In the video of the traffic stop, C. Payne is wearing a shirt and shorts,
leaving much of her body exposed. See Traffic Stop Video at 7:57-:58. Accordingly, Wilder
surmises that C. Payne is first disputing that “Wilder provided a proper basis for his conclusion
that she was under the influence of methamphetamine during the traffic stop.” Defendant Lee
Wilder’s Reply in Support of Motion for Summary Judgment on the Basis of Qualified Immunity
(Doc. 38) ¶ 3, at 2, filed April 17, 2017 (Doc. 49)(“Reply”). In that regard, Wilder maintains his
ultimate legal argument that the stop was, indeed, reasonable, but the Court notes that the
reasonableness of the stop is not a factual issue which Wilder has asserted in the MSJ. Wilder
has asserted, as undisputed fact, his subjective impressions of C. Payne during the traffic stop,
and a few of his observations. See MSJ ¶ 10, at 4. To the extent that C. Payne disputes whether
Wilder’s inferences were “reasonabl[e]” in the Response, or supported by training and
experience, the Court concludes that such a dispute does not specifically controvert Wilder’s
instant assertion of fact. Response ¶ 10, at 2.
Turning, then, to C. Payne’s attempt to identify a genuine issue of fact in response to
MSJ ¶ 10, at 4, Wilder states that, where the “Plaintiff also argues that Deputy Wilder could not
have known whether she was covered in scabs at the time of the traffic stop because she was
clothed,” the case was that the “Plaintiff wore shorts and a t-shirt leaving enough of her person
exposed to allow Deputy Wilder to determine she had scabs covering a significant portion of her
body.” Reply ¶ 3, at 2. See Traffic Stop Video at 7:57-:58. In that sense, it appears to the Court
that C. Payne is disputing that “she appeared covered in scabs,” by arguing that Wilder has not
supported his assertion with evidence in the record, because clothing covered C. Payne’s body.
Response ¶ 10, at 2. The record evidence, however, supports Wilder’s assertion that C. Payne
was wearing clothing which exposed “her person . . . to allow Deputy Wilder to determine she
had scabs covering” the exposed parts of her body. Digging deeper, the Court notes that Wilder
is actually only asserting that the observable, exposed, portions of C. Payne’s body were
“covered in scabs”; Wilder asserts that she “appeared covered in scabs.” MSJ ¶ 10, at 4
(emphasis added). Wilder is only making an assertion regarding his subjective observations of
fact, and, in this regard C. Payne has not specifically controverted his assertion with evidence in
the record. Having failed to identify a genuine issue of fact regarding Wilder’s assertion -- by,
for example, identifying evidence in the record suggesting C. Payne had no visible scabs -- the
Court deems undisputed Wilder’s assertion that C. Payne “appeared covered in scabs.” MSJ ¶
10, at 4. The Court recognizes, too, however, that it remains disputed whether C. Payne’s entire
body was covered in scabs. Next, regarding C. Payne’s dispute that “Wilder could not fairly
attribute her thinness with methamphetamine use because he did not know her before the traffic
stop,” Reply ¶ 3, at 2, Wilder concedes he did not know her before the traffic stop, but that he
“relied on sources who were familiar with Plaintiff’s appearance,” Reply ¶ 3, at 2, to support his
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could not see her children if she did not cooperate with the CYFD investigation.” MSJ ¶ 11, at 4
(asserting this fact). See Response ¶ 11, at 2. “Despite his conversation with Plaintiff, Deputy
Wilder never removed the children from Plaintiff’s [physical custody].”4

MSJ ¶ 12, at 5

(asserting this fact)(alterations added using language from the Response)(citing Wilder Depo. at
27:23-25; id. at 28:1-24; id. at 29:1-6). See Response ¶ 12, at 2 (not disputing the fact as
altered).

“Based on Plaintiff’s appearance and Deputy Wilder’s knowledge of her prior

association with methamphetamine users, Deputy Wilder administered a field sobriety test and
she passed, [performing well].”5 MSJ ¶ 13, at 5 (asserting this fact)(alterations added using

inference and assertion. Again, C. Payne has not identified record evidence which specifically
controverts Wilder’s assertion that “she appeared . . . extremely thin consistent with
methamphetamine usage.” MSJ ¶ 10, at 4. Instead, the Court considers C. Payne to be arguing
that the assertion -- which is, essentially, Wilder asserting his observations at the time of the
traffic stop -- was not the basis of a reasonable inference and is therefore genuinely disputed.
The Court disagrees, and concludes that C. Payne has not meaningfully, and with evidence on
the record, disputed the assertion of fact that -- to Wilder -- C. Payne “appeared covered in scabs,
shaking, and extremely thin consistent with methamphetamine usage.” Whether Wilder’s
inferences were reasonable is a matter of law that the Court will measure, against the undisputed
facts -- which includes Wilder’s assertions regarding his observations and inferences about C.
Payne at the time of the stop -- in the Court’s Analysis section. See O’Brien v. Mitchell, 883 F.
Supp. 2d 1055, 1058 n.1 (D.N.M. 2012)(Browning, J.)(stating that the proper course is to
determine relevance in the analysis section rather than in the factual background section).
4

Wilder’s MSJ asserts: “Despite his conversation with Plaintiff, Deputy Wilder never
removed the children from Plaintiff’s control.” MSJ ¶ 12, at 5 (emphasis added). C. Payne’s
Response purports to dispute this fact by “admit[ting] that Defendant never removed the children
from her physical custody,” but providing: “The portions cited by Defendant, however, show that
Plaintiff was not allowed to control any aspect of her children’s lives until she had performed the
acts that Defendant wanted her to perform.” Response ¶ 12, at 2 (emphasis added). Because
Wilder does not object to the proposed alteration to the proffered fact, the Court deems
undisputed the asserted fact as C. Payne’s Response alters them. See Defendant Lee Wilder’s
Reply in Support of Motion for Summary Judgment on the Basis of Qualified Immunity (Doc.
38), filed April 17, 2017 (Doc. 49).
5

C. Payne’s Response states: “Plaintiff admits the allegations . . . [and] would add that the
cited material shows that Plaintiff performed ‘well’ on her tests.” Response ¶ 13, at 5. Because
Wilder does not object to the proposed alteration to the proffered fact, the Court deems
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language from the Response)(citing Wilder Depo. at 37:21-23; id. at 38:14-17; id. at 39:3-16).
See Response ¶ 12, at 2 (not disputing the fact as altered).6 “Plaintiff and Mr. Payne shared joint

undisputed the asserted fact as C. Payne’s Response alters it. See Defendant Lee Wilder’s Reply
in Support of Motion for Summary Judgment on the Basis of Qualified Immunity (Doc. 38),
filed April 17, 2017 (Doc. 49).
6

Wilder next asserts: “After the July 8, 2015 incident, Plaintiff never attempted to
challenge Deputy Wilder’s assertions that she could not see her children unless she cooperated
with the investigation through CYFD, OCSO, or a court.” MSJ ¶ 14, at 5 (citing Deposition of
Cara Payne at 52:16-25 (taken November 16, 2015), filed February 23, 2017 (Doc. 38-2)(“C.
Payne Depo.”)(responding to whether at any “point did you go and talk to an attorney and say
open up my custody because this is wrong that [R. Payne] is keeping custody of my kids,” by
testifying that “I didn’t need a custody agreement. There was one in place. He wasn’t following
it. Is that a criminal matter? . . . I’d been to the police department.”); id. at 53:1-25 (testifying
that she agreed one could “move the court to enforce the custody agreement,” and that she did
not file a motion to enforce custody, but also testifying that if R. Payne “wasn’t following the
current one, why is he gonna” change his conduct, and that although “a judge could put some
people in line,” “I didn’t know -- I guess I didn’t know what I was supposed to do. I did what I
thought,” and “I called a lawyer. . . . Gail Brownfield”); id. at 54:1-8 (testifying that she did not
go back to CYFD “to see if they even had an open case,” because “[a]fter what they told me, that
the deputy was the one who said -- I figured I was waiting for the deputy.”)). C. Payne disputes
Wilder’s assertion by stating:
The lower court record filed in this removal action shows that this very case was
filed by Plaintiff against Defendant and her ex-husband Robert Payne on July 23,
2015. The initial complaint filed in state court pled a Habeas Corpus claim
against Defendant in an attempt to reclaim her children. That claim was denied
by the state court.
Response ¶ 14, at 2 (citing, generally, the Honorable Judge Jerry H. Ritter’s, New Mexico
District Judge for the State of New Mexico, Order Denying Ex Parte Writ of Habeas Corpus
(dated July 30, 2015), filed April 19, 2016 (Doc. 1-2)(“Ritter Order”)(considering C. Payne’s
allegations, in C. Payne’s “proposed Writ of Habeas Corpus together with Plaintiff s unverified
Petition for Writ of Habeas Corpus and Complaint for Damages under the New Mexico Tort
Claims Act,” that the “Defendants [Wilder, Sheriff Benny House, and R. Payne] have wrongfully
deprived her of the physical custody and companionship of her biological children, and asks for
this Court to order the Defendants to have the children ‘imprisoned and detained’ until the Court
otherwise acts”)). In reply, Wilder concedes that the “Plaintiff filed a habeas petition against
him,” but argues, “[h]owever, the habeas petition was an improper device to regain custody or
control of her children and when the court dismissed the petition she never attempted to regain
custody or access to [the] children.” Defendant Lee Wilder’s Reply in Support of Motion for
Summary Judgment on the Basis of Qualified Immunity (Doc. 38) ¶ 4, at 3, filed April 17, 2017
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custody over the children per a custody order.” MSJ ¶ 15, at 5 (asserting this fact). See
Response ¶ 15, at 2 (not disputing this fact).7

(Doc. 49). In the Court’s review of the record, it is apparent that C. Payne has cited evidence
refuting Wilder’s assertion that, “[a]fter the July 8, 2015 incident, Plaintiff never attempted to
challenge Deputy Wilder’s assertions that she could not see her children unless she cooperated
with the investigation through CYFD, OCSO, or a court,” MSJ ¶ 14, at 5. See Response ¶ 14, at
2. C. Payne has proffered evidence that she sought relief and custody through New Mexico’s
courts, see Response ¶ 14, at 2, and the Court will not punish -- by deeming Wilder’s assertion of
fact undisputed -- C. Payne, who, admittedly did not know what avenue she should pursue, see
C. Payne Depo. at 53:1-25, for approaching her problem in the manner she chose. Regardless,
that she did seek relief in state court is sufficient to specifically controvert and dispute Wilder’s
assertion that, “[a]fter the July 8, 2015 incident, Plaintiff never attempted to challenge Deputy
Wilder’s assertions that she could not see her children unless she cooperated with the
investigation through CYFD, OCSO, or a court.” MSJ ¶ 14, at 5.
7

“Throughout the course of the investigation, Deputy Wilder believed he acted pursuant
to statutory authority to prevent interference and delay with the investigation.” MSJ ¶ 16, at 5
(asserting this fact)(citing Wilder Depo. at 44:4-24). C. Payne disputes this fact, stating: “The
material cited by Defendant does not stand for the proposition that he believed that he was acting
under statutory authority to prevent interference or delay with the investigation.” Response ¶ 16,
at 2-3. Wilder testified that the “District Attorney’s Office” had “trained that if you go to
somebody’s house and they require a warrant to either get the kids or to go into the house that’s a
violation of 30-6-4,” and that,
if we are conducting a child abuse investigation . . . if the person interferes or
delays our ability to inspect the premises then they’ve potentially committed a
crime. That doesn’t mean we can grab them, arrest them and walk in. We then
have to make further determination on how we proceed. Obviously if the kids are
in danger inside the house or there’s reasonable suspicion to believe then you
have to take immediate steps to make sure the kids are safe.
Wilder Depo. at 44:4-24. In reply, Wilder argues that his assertion is that “he specifically relied
upon N.M. Stat. Ann. § 30-6-4(C) [sic] (2005) and its requirement that he investigate and
protect against child abuse and neglect.” Defendant Lee Wilder’s Reply in Support of Motion
for Summary Judgment on the Basis of Qualified Immunity (Doc. 38) ¶ 5, at 3, filed April 17,
2017 (Doc. 49)(emphasis in original). The Court notes that Wilder has testified that he knew
about N.M. Stat. Ann. § 30-6-4 -- which criminalizes as a misdemeanor the “obstruction of
reporting or investigation of child abuse or neglect,” N.M. Stat. Ann. § 30-6-4 -- and that he had
considered how enforcement of N.M. Stat. Ann. § 30-6-4 would proceed should a violator be in
the same home as the children allegedly being abused or neglected, see Wilder Depo. at 44:7;
44:14-24. Again, Wilder’s assertion is that, “[t]hroughout the course of the investigation, [he]
believed he acted pursuant to statutory authority to prevent interference and delay with the
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During the traffic stop Wilder said that he had been looking for Plaintiff. She told
him that she did not have her children, that they were with their dad. Plaintiff
handed Defendant her driver’s license and her lawyer’s card and asked for her
lawyer. Defendant told Plaintiff that he needed to search a residence located a 10
Coyote. Defendant took Plaintiff’s license and returned to his car. When he
returned, he stated that Plaintiff needed to do a sobriety test and she performed the
test.
Response ¶ 1, at 3 (asserting these facts)(citing Affidavit of Cara Payne ¶ 2, at 1 (executed
September 9, 2015), filed March 27, 2017 (Doc. 46-1)(“C. Payne Aff.”). See Defendant Lee
Wilder’s Reply in Support of Motion for Summary Judgment on the Basis of Qualified Immunity
(Doc. 38) ¶ 1, at 3, filed April 17, 2017 (Doc. 49)(“Reply”)(not disputing these facts).8 After the

investigation.” MSJ ¶ 16, at 5. C. Payne has not proffered any record evidence which refutes
this assertion and disputes this assertion only by arguing that the Wilder Depo. does not provide
evidence which supports an assertion concerning Wilder’s “belief[s]” at the time of the
investigation. The Court agrees with C. Payne, because the cited portions of the Wilder Depo. -and the testimony directly thereafter, see Wilder Depo. at 45:1-3 -- appear to discuss only
Wilder’s conduct after the traffic stop, when he suggested to the District Attorney’s office the
filing of N.M. Stat. Ann. § 30-6-4 charges against C. Payne. The Court is not in a place, based
upon the cited record evidence, to conclude that it is an undisputed fact that, “[t]hroughout the
course of the investigation, Deputy Wilder believed he acted pursuant to statutory authority to
prevent interference and delay with the investigation.” MSJ ¶ 16, at 5. Essentially, by her
dispute, C. Payne has identified a lack of record evidence in support of Wilder’s assertion, and
the Court concludes that there is a genuine dispute, on this record, regarding whether Wilder
believed that he was investigating pursuant to a “statutory authority to prevent interference and
delay with the investigation,” and points to his statutory authority to prevent the crime of child
abuse itself. MSJ ¶ 16, at 5. The Court deems this assertion disputed. Whether it is a material
dispute, however, is a matter for the Court’s Analysis section. See O’Brien v. Mitchell, 883 F.
Supp. 2d 1055, 1058 n.1 (D.N.M. 2012)(Browning, J.)(stating that the proper course is to
determine relevance in the analysis section rather than in the factual background section).
8

Wilder purports only to dispute C. Payne’s assertions that, during the traffic stop,
“Wilder said that he had been looking for Plaintiff. She told him that she did not have her
children, that they were with their dad.” Response ¶ 1, at 3. In support, C. Payne cites the C.
Payne Aff., which provides, in full:
On July 8, 2015 , I was pulled over by Defendant Wilder. During the traffic stop,
Wilder said that he had been looking for me. I told him that I did not have my
children that they were with their dad. I handed my driver’s license and my
lawyers card and asked for my lawyer. He told me that he needed to search a
- 12 -

field sobriety test, and at the conclusion of the traffic stop, Wilder reiterated to C. Payne that,
because of the open child abuse investigation, he needed to conduct an investigation of the home
at 10 Coyote Run before he could allow the children back there, at which point C. Payne asserted
“she did not live there but was housesitting the residence.” Response ¶ 2, at 3.9 Wilder “told

residence located a 10 Coyote. He took my license and returned to his car.
When he returned, he stated that I needed to do a sobriety test. I performed the
test.
C. Payne Aff. ¶ 2, at 1. Wilder disputes those assertions, however, arguing: “Deputy Wilder
denies that he told Plaintiff he had been looking for her or that she stated that her children were
with their father but admits the remaining allegations in Paragraph 1.” Reply ¶ 1, at 3 (citing
MSJ ¶ 10, at 4; Response ¶ 1, at 3). The material to which Wilder cites, in the MSJ, is the
Wilder Depo. at 39:3-8, and the Traffic Stop Video at 7:40-15:45. The material to which Wilder
cites, in the Response, is the C. Payne Aff. ¶ 2, at 1, supra, which the Court notes does not
support Wilder’s argument that neither he, nor she, said what C. Payne asserts he, and she, said
during the traffic stop. Regarding the first cited material, the Wilder Depo. at 39:3-8, Wilder
testified:
I was still very suspicious. She was shaking, extremely thin. She did have scabs
all over her body, that is obviously indication[] of methamphetamine usage. The
fact she had been around methamphetamine in the past in reference to these
search warrants. Obviously I did not believe it was enough to arrest her otherwise
I would have.
Wilder Depo. at 39:3-9. The Court notes that this material, too, does not appear to support
Wilder’s denial that “he told Plaintiff he had been looking for her or that she stated that her
children were with their father.” Reply ¶ 1, at 3. Turning last, then, to the Traffic Stop Video,
the Court, having reviewed the video, confirms that Wilder in fact told C. Payne: “I’ve been
looking for you” at the very beginning of the traffic stop. Traffic Stop Video at 1:20-:30.
Accordingly, the record evidence confirms C. Payne’s assertion, and Wilder has not specifically
controverted her assertion that “he told Plaintiff he had been looking for her.” Reply ¶ 1, at 3.
The Court deems that assertion undisputed. The Court also notes, upon having reviewed the
Traffic Stop Video, that C. Payne and Wilder discuss the location of her kids, and that she says:
“Of course they’re with their dad.” Traffic Stop Video at 2:50-3:00. Accordingly, the record
evidence confirms C. Payne’s assertion, and Wilder has not specifically controverted her
assertion that “she stated that her children were with their father.” Reply ¶ 1, at 3. The Court
deems that assertion undisputed.
9

C. Payne’s Response asserts: “After the test, Defendant asked if Plaintiff was going to
take him to 10 Coyote because he needed to search the house. She told him that she was not
- 13 -

because she did not live there but was housesitting the residence.” Response ¶ 2, at 3 (citing C.
Payne Aff. ¶ 3, at 2 (attesting that: “After the test, he asked if I was going to take him to 10
Coyote because he needed to search the house. I told him that I was not because I did not live
but was housesitting the residence.”)). Wilder purports to dispute C. Payne’s account of the end
of the traffic stop, arguing:
As clearly depicted in the video of the traffic stop, Deputy Wilder informed
Plaintiff that he believed she was not under the influence and that he was citing
her for driving under a suspended license, then asked whether she had someone
who could pick her up and allowed her to wait in her vehicle.
Response ¶ 2, at 3 (citing MSJ ¶ 10, at 4 (citing Wilder Depo. at 39:3-8, and the Traffic Stop
Video at 7:40-15:45); Traffic Stop Video at 15:15-:35; Scott v. Harris, 550 U.S. 372, 279-81
(2007)(reversing a denial of summary judgment, because the court improperly relied on the
plaintiff’s account rather that reliable footage of a police chase)). The Court first notes that the
Wilder Depo. at 39:38 provides:
I was still very suspicious. She was shaking, extremely thin. She did have scabs
all over her body, that is obviously indication[] of methamphetamine usage. The
fact she had been around methamphetamine in the past in reference to these
search warrants. Obviously I did not believe it was enough to arrest her otherwise
I would have.
Wilder Depo. at 39:3-9. That evidence does not support Wilder’s dispute regarding the dialogue
between he and C. Payne after the field sobriety test, and thus does specifically controvert the
assertion that, “[a]fter the test, Defendant asked if Plaintiff was going to take him to 10 Coyote
because he needed to search the house. She told him that she was not because she did not live
there but was housesitting the residence.” Response ¶ 2, at 3. The Court has reviewed the
Traffic Stop Video, and, at the outset, notes that Wilder has accurately cited the segment of the
Traffic Stop Video wherein the viewer can watch and hear the conclusion of the field sobriety
test. See Traffic Stop Video at 15:15-:35. The Traffic Stop Video confirms everything that
Wilder argues in response to C. Payne’s assertion, regarding what transpired immediately after
Wilder concluded the field sobriety test. See Traffic Stop Video at 15:15-:35. That sobriety test
was not the traffic stop’s conclusion; Wilder then continued to his vehicle, wrote a citation for C.
Payne’s suspended license and reapproached C. Payne’s vehicle to issue the citation. See Traffic
Stop Video at 15:35-25:00. While C. Payne’s assertion begins with “[a]fter the test,” the Court
notes that C. Payne did not restrict the timing of her assertion to, for example, that time coming
immediately after the test. Response ¶ 2, at 3. The Court, accordingly, must still investigate that
dialogue between C. Payne and Wilder as he issued the citation to ascertain whether C. Payne’s
assertion is nonetheless controverted by the record evidence in totality. After Wilder reaches C.
Payne’s car, he begins by explaining the reason for issuing the citation for C. Payne’s suspended
license, and the responsibilities that C. Payne would now have to adequately respond to the
citation. See Traffic Stop Video at 23:07-:55. C. Payne then makes an inaudible statement, in
response to which Wilder begins talking about the child abuse investigation. See Traffic Stop
- 14 -

her, during the stop, that he had talked with her ex-husband and that she did not get to see her
kids pending the investigation.” Response ¶ 3, at 3 (asserting this fact). See Reply ¶ 3, at 3 (not
disputing this fact).

“After the stop, Wilder called Plaintiff’s cell phone twice.

In both

Video at 23:56-24:21. Wilder explained that the child abuse allegations were that she was doing
drugs inside her house and that he needed to conduct an investigation of the home on “Coyote
Run” before he could allow the children back into that home, and if she would not allow him into
the home to conduct the investigation, Wilder stated “then I cannot allow the children to go over
there.” Traffic Stop Video at 23:56-24:21. C. Payne then makes one more inaudible statement,
at which point Wilder hands her a copy of the citation, her driver’s license, and her insurance,
then instructs her not to wait next to, or reenter, the busy highway next to which he has stopped
her, and then walks away. See Traffic Stop Video at 24:22-:49.
By reviewing the Traffic Stop Video, the Court has fully reviewed the record evidence
and notes that Wilder has specifically controverted C. Payne’s assertion that, “[a]fter the test,
Defendant asked if Plaintiff was going to take him to 10 Coyote because he needed to search the
house.” Response ¶ 2, at 3. The Traffic Stop Video indicates that Wilder, in relevant part,
indicated only that he needed to investigate 10 Coyote Run before he could allow the children
“to go over there.” Traffic Stop Video at 23:56-24:21. He did not ask if she was going to take
him there at that time, as the C. Payne Aff. suggests. Wilder made comments regarding needing
to investigate the home at the close of the traffic stop -- which C. Payne appears to have
misheard -- so the Court will deem undisputed the accurate content of Wilder’s statements as the
Traffic Stop Video portrays: “After the field sobriety test, and at the conclusion of the traffic
stop, Wilder reiterated to C. Payne that, because of the open child abuse investigation, he needed
to conduct an investigation of the home at 10 Coyote Run before he could allow the children
back there.” Supra at 12-13. Regarding the latter part of C. Payne’s assertion -- “[s]he told him
that she was not because she did not live there but was housesitting the residence,” Response ¶ 2,
at 3 -- the Court concludes that Wilder has not disputed this assertion with record evidence,
because C. Payne’s statements in the Traffic Stop Video, see Traffic Stop Video at 23:56-24:49,
were inaudible. Wilder has not specifically controverted C. Payne’s assertion as the record
evidence in the C. Payne Aff. ¶ 3, at 2 supports, that “[s]he told him that she was not because she
did not live there but was housesitting the residence,” Response ¶ 2, at 3. The Court deems this
asserted fact undisputed. In sum, the Court rewrites -- in light of the record evidence -- and
deems undisputed C. Payne’s assertion as follows:
After the field sobriety test, and at the conclusion of the traffic stop, Wilder
reiterated to C. Payne that, because of the open child abuse investigation, he
needed to conduct an investigation of the home at 10 Coyote Run before he could
allow the children back there, at which point C. Payne asserted “she did not live
there but was housesitting the residence.”
Supra at 12-13 (quoting Response ¶ 2, at 3).

- 15 -

messages, he asked if she was ready to cooperate with the investigation so that she could get her
kids back.” Response ¶ 4, at 3 (asserting this fact)(citing C. Payne Aff. ¶ 5, at 2).10 “From July
8, 2015 until December 25, 2015, Plaintiff was only allowed to see her kids at her ex-husband’s
house on two occasions.” Response ¶ 5, at 3 (asserting this fact)(citing C. Payne Aff. ¶ 6, at 2).11
PROCEDURAL BACKGROUND
C. Payne originally filed her Complaint in the Twelfth Judicial District Court, County of
Otero, State of New Mexico. See Complaint at 1. Wilder removed the case to federal court on
April 19, 2016. See Notice of Removal, filed April 19, 2016 (Doc. 1). C. Payne alleges in
Count I that Wilder and Bucag violated her substantive and procedural due-process rights, and
her right to be free from unreasonable search and seizure, pursuant to the Constitution of the

10

Wilder does not dispute this fact, but instead argues: “The facts in Paragraph 4 are
immaterial as the Complaint only concerns Deputy Wilder’s conduct prior to and during the
traffic stop.” Reply ¶ 4, at 3. The argument that C. Payne’s assertion is not material does not
create a genuine issue of fact. See Walton v. N.M. State Land Office, 49 F. Supp. 3d 920, 924
n.2 (D.N.M. 2014)(Browning, J.)(“Contending that a fact is not relevant is not disputing a fact,
nor is it specifically controverting a fact by directing the Court with particularity to the
record.”)(citing D.N.M.LR-Civ. 56.1(b)), aff’d sub nom., Walton v. Powell, 821 F.3d 1204 (10th
Cir. 2016). Materiality is a legal question and not a factual one, and, if necessary, the Court will
later address materiality in its Analysis, but will deem C. Payne’s assertion here undisputed for
the purposes of the Factual Background. See O’Brien v. Mitchell, 883 F. Supp. 2d 1055, 1058
n.1 (D.N.M. 2012)(Browning, J.)(stating that the proper course is to determine relevance in the
analysis section rather than in the factual background section).
11

Wilder does not dispute this fact, but instead argues: “The facts in Paragraph 5 are also
immaterial because Deputy Wilder never interfered with Plaintiff’s control or custody over her
children.” Reply ¶ 5, at 3. The argument that C. Payne’s assertion is not material does not create
a genuine issue of fact. See Walton v. N.M. State Land Office, 49 F. Supp. 3d 920, 924 n.2
(D.N.M. 2014)(Browning, J.)(“Contending that a fact is not relevant is not disputing a fact, nor is
it specifically controverting a fact by directing the Court with particularity to the record.”)(citing
D.N.M.LR-Civ. 56.1(b)), aff’d sub nom., Walton v. Powell, 821 F.3d 1204 (10th Cir. 2016).
Materiality is a legal question and not a factual one, and, if necessary, the Court will later address
materiality in its Analysis, but will deem C. Payne’s assertion here undisputed for purposes of
the Factual Background. See O’Brien v. Mitchell, 883 F. Supp. 2d 1055, 1058 n.1 (D.N.M.
2012)(Browning, J.)(stating that the proper course is to determine relevance in the analysis
section rather than in the factual background section).
- 16 -

United States of America and “New Mexico Statutory law,” by depriving her of custody and
visitation of her children, and by Wilder’s “prolonged . . . traffic stop and . . . field sobriety tests
when he lacked reasonable suspicion . . . .” Complaint ¶¶ 22-28, at 4-6. C. Payne also alleges in
Count II that Wilder violated her due-process rights and her right to be free from unreasonable
search and seizure under Article II, Sections 10 and 18 of the Constitution of the State of New
Mexico. See Complaint ¶¶ 26-32, at 6-7. Payne last alleges, in Count III, that N.M. Stat. Ann. §
30-6-4 is unconstitutional, because it violates the Fourth Amendment to the Constitution of the
United States of America and Article II, § 10, of the New Mexico Constitution, supporting her
request for injunctive and declaratory relief regarding Ceballes’ potential prosecution of her. See
Complaint ¶ 21, at 4. On January 3, 2017, the Court concluded that the allegations in the
Complaint implicating Ceballes were not ripe for review, and thus granted Defendant David
Ceballes [sic] Motion and Memorandum to Dismiss Plaintiff’s Declaratory and Injunctive Relief
Claims, filed September 27, 2016 (Doc. 10)(“Motion to Dismiss”), which asked that the Court
dismiss C. Payne’s allegations against Ceballes, see Memorandum Opinion and Order at 1, filed
January 3, 2017 (Doc. 36)(“Ripeness MOO”). The Court has also issued a Memorandum
Opinion and Order at 1, filed July 7, 2017 (Doc. 60)(“Default MOO”), setting aside the Clerk’s
Entry of Default, filed November 16, 2016 (Doc. 22), which was entered against Bucag.
1.

The MSJ.

Wilder filed the MSJ on February 23, 2017. See MSJ at 1. After making his proffer of
undisputed facts, Wilder explains that, because he is a law enforcement officer, “the plaintiff
must first satisfy a ‘strict two-part test’ by establishing (1) ‘the defendant’s actions violated a
constitutional or statutory right’ and (2) that ‘right was clearly established at the time of the
defendant’s unlawful conduct.’” MSJ at 5 (quoting Gutierrez v. Cobos, 841 F.3d 895, 900 (10th

- 17 -

Cir. 2016)). Wilder also explains that the Court has the discretion to analyze either qualifiedimmunity prong first. See MSJ at 6. Wilder argues that C. Payne’s claims against him must fail,
because, first, his “actions are consistent with Plaintiff’s Fourteenth Amendment Due Process
rights under the Constitution because he did not interfere with Plaintiff’s parental rights.
Therefore, his conduct did not violate clearly established law and he is entitled to qualified
immunity.” MSJ at 8. In support, Wilder provides that “[n]either the United States Supreme
Court nor the Tenth Circuit have articulated any specific prohibition against a public official’s
statement about a parent’s custody rights during a child abuse or neglect investigation.” MSJ at
8. In that regard, Wilder maintains that Wilder afforded C. Payne “all rights pursuant to her
substantive due process right to have control and custody over her children. Likewise, Deputy
Wilder never interfered with Plaintiff’s procedural due process right to challenge any perceived
obstruction of her parental rights or Deputy Wilder’s statement that she could not see her
children.” MSJ at 8. Wilder also contends that, C. Payne’s parental rights aside, “the State of
New Mexico may temporarily interfere with a parent’s rights to ensure the health and safety of
children,” and that here Wilder “did not knowingly or intentionally attempt to obstruct Plaintiff’s
relationship with her children. If Plaintiff believed CYFD deprived her of a parental right during
the investigation, she should have exercised her rights through CYFD.” MSJ at 8. Wilder then
specifically addresses his qualified immunity to C. Payne’s claims sounding in federal due
process. See MSJ at 9.
Wilder explains: “Substantive due process ‘protects the fundamental right of parents to
make decisions concerning the care, custody, and control of their children.” MSJ at 9 (quoting
Starkey v. Boulder Cnty. Soc. Servs., 569 F.3d 1244, 1253 (10th Cir. 2009)). Also, Wilder
explains: “States possess their own ‘traditional and transcendent interest in protecting children

- 18 -

from abuse.’” MSJ at 9 (quoting Gomes v. Wood, 451 F.3d 1122, 1127 (10th Cir. 2006)).
Wilder further explains, then, that: “The Tenth Circuit recognizes ‘that the constitutional right to
familial integrity is amorphous and always must be balanced against the governmental interest
involved.’” MSJ at 9 (quoting Martinez v. Mafchir, 35 F.3d 1486, 1490 (10th Cir. 1994)).
Wilder then cites to Cordova v. Albuquerque, 816 F.3d 645 (10th Cir. 2015), which provides that
the “Plaintiff must prove this balance favors her constitutional right and that the state official
“intended to deprive [the plaintiff] of that interest.’”

MSJ at 9-10 (quoting Cordova v.

Albuquerque, 816 F.3d at 645). Wilder continues:
Any conduct, or statement made, by Wilder must be willful and intentional
“directed at the intimate relationship with knowledge that the statements or
conduct will adversely affect that relationship.” [Cordova v. Albuquerque, 816
F.3d at 645]. Courts must also “examine the evidence to determine the severity of
the alleged infringement [on the parent’s right], the need for the defendant’s
conduct, and any possible alternatives.” Id.; accord Parham v. J.R., 442 U.S.
442, 603 (1979)(“[A] state is not without constitutional control over parental
discretion in dealing with children when their physical or mental health is
jeopardized.”); P.J. v. Wagner, 603 F.3d 1182, 1198 (10th Cir. 2010)(“[W]hen a
child’s life or health is endangered by her parents’ decisions, in some
circumstances a state may intervene without violating the parents’ constitutional
rights.”).
MSJ at 10. Here, Wilder maintains that he did not “act with knowledge or intent, even if his
words interfered with plaintiff’s parental rights,” because: (i) he “acted pursuant to another
entity’s directive,” -- which was a “referral from CYFD requiring that he follow up on an
anonymous tip”; (ii) he did “not interfere with Plaintiff’s access to her children,” and only
informed her that she would be prevented from seeing her children until the investigation was
complete; (iii) any of his “interference was justified by facts amounting to reasonable suspicion
that the children faced imminent threats to their safety”; and (iv) he “only intended to pursue the
investigation.” MSJ at 11. According to Wilder, these actions do not show the “requisite
knowledge or intent amounting to a substantive due process violation.” MSJ at 10-11 (citing J.B.
- 19 -

v. Wash. Cnty., 127 F.3d 919, 922, 927-28 (10th Cir. 1997)(considering a child abuse
investigation where county officials removed a child for eighteen hours but eventually concluded
that, through the course of their investigation, there was no evidence of child abuse, and holding
that, although removal of the child for eighteen hours practically interfered with her parent’s
rights of familial association, the officials committed no substantive due-process violation,
because -- Wilder contends -- the officials had no knowledge that their conduct violated the
parents’ rights, and could not act with the requisite knowledge or intent amounting to a
substantive due-process violation). Wilder avers that he did not, at any point, “exercise[] any
authority to prevent Plaintiff from the control and custody over her children,” and that he only
investigated the report of child abuse as it was his duty. MSJ at 11-12. Wilder also contends
that, should his words to C. Payne constitute interference, that interference is “minimal and
outweighed by the risks described in the anonymous tip.” MSJ at 12. Wilder requests that the
Court balance the interests at stake and thereby conclude: “Plainly, Deputy Wilder did not
violate Plaintiff’s substantive due process rights and any intrusion was justified by the need to
assure the children’s safety and well-being,” because his only intent was to “pursue the
investigation and assure the children’s safety, not to sever or obstruct Plaintiff’s relationship with
her children.” MSJ at 12-13. Wilder also notes, for the Court’s information:
No pertinent federal case law prohibits a law enforcement officer from assisting in
a child abuse investigation nor informing a parent that they do not have custody or
visitation rights over their children. On the contrary, law enforcement has an
affirmative duty to the public’s safety. Given what Deputy Wilder knew at the
time, no reasonable officer would have second guessed that he was empowered to
pursue the investigation. For similar reasons, no reasonable officer would have
believed he acted unreasonably when he mistakenly informed Plaintiff that she
lacked custody rights to her children. Any reasonable officer knows that their
actions cannot set aside a court order. At most, Deputy Wilder’s actions were
misinformed, not a constitutional violation.
MSJ at 13.
- 20 -

Wilder next argues regarding C. Payne’s allegations regarding procedural due process.
See MSJ at 14. Wilder provides that he “did not interfere with any right to challenge the terms
of the CYFD investigation and he could not have violated Plaintiff’s procedural due process
rights.” MSJ at 14. Wilder then explains that states may take children from parents only after
fair process, which in this context requires
“prior notice and a hearing, except in extraordinary situations where some valid
governmental interest is at stake that justifies postponing the hearing until after
the event.” Gomes v. Woods, 451 F.3d at 1128. State officials may remove a
child without a hearing with reasonable suspicion that the child faces an
immediate threat to their safety if they remain with the parent. Id. at 1130. To be
clear, reasonable suspicion does not include the mere possibility of danger. Roska
v. Peterson, 328 F.3d 1230, 1245 (10th Cir. 2003)(internal citations omitted).
Further, when an agency removes a child before a hearing, the state remains
obligated to provide a hearing post-removal. Gomes v. Woods, 451 P.3d at 1128.
MSJ at 14-15. In that respect, Wilder asserts that he “never interfered with that right, much less
her procedural right to contest any related intrusion.” MSJ at 15. Essentially, Wilder maintains
C. Payne could have, and should have, contacted CYFD about the anonymous tip and subsequent
investigation. See MSJ at 15. Regardless, Wilder further argues that, even if he controlled the
procedures of which C. Payne argues he deprived her, “he never removed or interfered with
Plaintiff’s control or custody over her children.” MSJ at 15. Wilder also contends that, “[i]f he
had removed the children with a prior hearing, he would have been justified by reasonable
suspicion based upon 1) the information in the anonymous tip; 2) Mr. Payne’s corroboration of
those facts; and 3) Deputy Wilder’s awareness of Ms. Payne’s association with
methamphetamine users.” MSJ at 15. In sum, Wilder reiterates that no “reasonable officer
would know that mere words violate a plaintiff’s procedural due process rights . . . or could have
known that sharing misinformation about a plaintiff’s parental rights interferes with the right to
contest the deprivation.” MSJ at 16.

- 21 -

Next, Wilder addresses C. Payne’s traffic stop and argues that he acted consistent with
her rights under the Fourth Amendment. See MSJ at 16. Wilder maintains that he acted with
reasonable suspicion in executing his stop of C. Payne’s vehicle, because: (i) her license was
suspended, a fact which Wilder had learned from a previous review of her driving record; (ii) his
belief that her license was suspended was “reasonable suspicion that she was committing a traffic
violation”; (iii) once he stopped her vehicle, he reasonably inquired about her license status; and
(iv) he acted “with independently supported reasonable suspicion that Plaintiff was driving while
impaired justifying the field sobriety test.” MSJ at 17. Regarding Wilder’s reasonable suspicion
that C. Payne was under the influence, Wilder explains that if “a prudent officer can reasonably
conclude from the totality of the circumstances that a driver is inebriated during the traffic stop,
the officer retains reasonable suspicion to perform a sobriety test. See Wilder v. Turner, 490
F.3d 810, 815 (10th Cir. 2007).” MSJ at 17. During his stop of C. Payne, then, Wilder avers that
she “appeared shaky, had scabs all over her body, and was very thin,” which is indicative of
methamphetamine use and which was consistent with the anonymous tip making child abuse
allegations against C. Payne -- causing him to reasonably believe “that she was driving impaired
under the influence of methamphetamine.” MSJ at 18. Wilder concludes by reiterating that
“[n]o reasonable officer would have acted differently when confronted with the signs that
Plaintiff was under the influence of methamphetamine.” MSJ at 19.
Turning next to C. Payne’s allegations brought pursuant to New Mexico state law, Wilder
argues that he “did not violate Plaintiff’s Due Process or Search and Seizure rights pursuant to
Article II, Sections 10 and 18 of the New Mexico Constitution. Therefore, he is entitled to
summary judgment on Count II.” MSJ at 19. Addressing first the “search and seizure” claim,
Wilder explains that, “[s]imilar to the Fourth Amendment to the United States Constitution, the

- 22 -

New Mexico Constitution provides ‘the people shall be secure in their persons, papers, homes
and effects, from unreasonable searches and seizures.’” MSJ at 19-20 (quoting N.M. Const. Art.
II § 10). In New Mexico, Wilder provides, the “inquiry to determine whether a traffic stop meets
the constitutional reasonableness requirement include[s] 1) whether the officer’s actions are
justified at their inception and 2) whether those actions are reasonably related in scope to the
circumstances justifying the initial interference.” MSJ at 20. Wilder also provides that, in New
Mexico, an officer can extend a traffic stop by “asking questions unrelated to the original traffic
stop if the questions are supported by the officer’s independent reasonable suspicion of a crime,”
and that “[f]ield sobriety tests, however, require independent reasonable suspicion that would
otherwise support extension of a traffic stop.” MSJ at 20. According to Wilder,
[i]n this case, at the time of the traffic stop, Plaintiff appeared consistent with the
tip and Mr. Payne’s description of Plaintiff. . . . The tip and Mr. Payne described
Plaintiff as covered in scabs, very thin, and stated that she suffered from severe
mood swings typical of a methamphetamine user. . . . When Deputy Wilder
encountered Plaintiff, she appeared to be under the influence of
methamphetamine. . . . Plaintiff was shaky and very thin. . . . Judging her
appearance, behavior, the tip, and Deputy Wilder’s knowledge of her association
with methamphetamine users, he administered a field sobriety test based on his
valid reasonable suspicion that she was under the influence of methamphetamine.
MSJ at 21. Wilder then concludes that he acted to protect public safety, because the facts
strongly indicated that C. Payne was inebriated, and any reasonable officer would have had
reasonable suspicion to administer the field sobriety test during the traffic stop. See MSJ at 22.
Last, Wilder argues that he “did not violate Plaintiff’s Procedural Due Process rights
pursuant to Article II, Section 18 of the New Mexico Constitution,” because he did not interfere
with any of C. Payne’s procedural rights. MSJ at 22. In this context, Wilder explains that New
Mexico recognizes parents’ fundamental rights to relationships with their children and that
deprivation of that fundamental right requires due process, but that due process rights are

- 23 -

“flexible, subject to the particular circumstances in a given case.” MSJ at 22. Wilder maintains
that he did nothing which stopped C. Payne from contesting the deprivation of her fundamental
rights with CYFD and asserts that he “cannot be held liable for her failure to exercise her own
procedural due process rights.” MSJ at 22-23. In conclusion, Wilder asserts that he is entitled to
qualified immunity and summary judgment on all federal constitutional counts, and that the
Court should also grant summary judgment on the state claims. See MSJ at 23.
2.

The Response.

In response, C. Payne -- after addressing Wilder’s proffer of undisputed facts -- begins by
arguing that Wilder “lacked reasonable suspicion to require Plaintiff to perform field sobriety
tests.” Response at 5. C. Payne maintains that Wilder did not possess reasonable suspicion that
she was impaired, because he “has not shown that any training or experience dictates that” C.
Payne’s nervousness and scabs “indicate presently being under the influence of
methamphetamines.” Response at 5. According to C. Payne, Wilder’s proffer does not support
reasonable suspicion under state or federal law. See Response at 5-6. C. Payne then turns to her
rights to substantive due process, and argues that, even though the right to familial association
yields “when a child is in imminent or immediate danger of neglect or abuse,” here Wilder
“virtually terminated” C. Payne’s rights to see her children “without anything other than an
anonymous tip concluding that Plaintiff was living with a wanted individual . . . [and] was using
drugs.” Response at 6 (citing Florida v. J.L., 529 U.S. 266 (2000)). Further, C. Payne contends
that the “anonymous tip showed no indicia of reliability” and that the information Wilder gained
from speaking with C. Payne’s ex-husband was similarly unreliable, because he offered only his
factually unsupported “suspicions.” Response at 6. C. Payne then reiterates that she has pursued

- 24 -

her case in state court and that she has not disavailed herself of “process” to regain custody.
Response at 6-7. In conclusion, C. Payne states that she
was able to show that she had a right not to be subjected to field sobriety testing
by Defendant without reasonable suspicion. She showed that she was so
subjected and that Defendant lacked reasonable suspicion thereby violating the
United States Constitution and the New Mexico Constitution. Plaintiff was able
to show that she had a right to the custody of her children. She showed that
Defendant violated that right when he virtually terminated that right without
reasonable suspicion to do so.
Response at 7.
3.

The Reply.

In reply, Wilder argues that C. Payne fails “to meet her two-part burden to prove Deputy
Wilder is not entitled to qualified immunity.” Reply at 4. According to Wilder, C. Payne needs
to “demonstrate that her constitutional rights were violated and that those rights were clearly
established at the time of his actions,” but she has failed “to cite any law on qualified immunity”
or “supply specific analogous law demonstrating Deputy Wilder is not entitled to qualified
immunity.” Reply at 4. Wilder maintains that C. Payne has not identified support for her
contention that Wilder lacked reasonable suspicion during his investigation and traffic stop, and
that she has omitted discussion in her Response of her “procedural due process claim under the
Fourteenth Amendment or her due process claim under the New Mexico Constitution, effectively
conceding that Deputy Wilder is entitled to qualified immunity and summary judgment.” Reply
at 4-5. Wilder accordingly argues that “the Tenth Circuit has unambiguously held that a Plaintiff
cannot meet their heavy two-part burden without supporting legal precedent,” particularly where,
as here, C. Payne has not presented “at least one case in which an officer’s conduct was held
violative under obviously similar circumstances to those in this case.” Reply at 5-6 (citing White
v. Pauly, 137 S. Ct. 548, 552 (2017); Gutierrez v. Cobos, 841 F.3d 895, 900-01 (10th Cir. 2016)).

- 25 -

Wilder then turns to argument regarding C. Payne’s substantive due-process claim, and
makes the same assertion: the “Plaintiff has not cited any cases with specific facts demonstrating
that Deputy Wilder violated her clearly established substantive due process right to her children .
. . .” Reply at 6. Wilder reiterates that he was acting upon a CYFD directive for him to
investigate an anonymous tip involving C. Payne, and that C. Payne “fails to show [that] Deputy
Wilder violated any clearly established law when he told her she could not visit with her children
until she cooperated with the CYFD investigation or when he administered the field sobriety
test.” Reply at 7. Wilder then revisits the standards for state interference with parental rights,
and reasserts that, although Wilder did nothing to interfere with C. Payne’s parental rights, he
nonetheless acted lawfully by making the statements he made during the traffic stop. See Reply
at 7.

Wilder also contends that he acted upon reasonable suspicion -- premised on the

anonymous tip -- to stop C. Payne, and also upon independent reasonable suspicion that C. Payne
was under the influence of methamphetamine when he chose to extend the traffic stop with a
field sobriety test. See Reply at 7-9 (citing Navarette v. California, 134 S. Ct. 1683, 1688
(2014)(discussing the viability of an anonymous tip for supporting reasonable suspicion to make
a traffic stop)). Because C. Payne has apparently not cited any law that suffices her two-part
burden to beat Wilder’s qualified immunity to all of her claims, Wilder requests the Court grant
summary judgment on all of those claims. See Reply at 10.
Wilder next argues that C. Payne has failed “to offer facts disputing the reasonableness of
Deputy Wilder’s actions.” Reply at 10. In that regard, Wilder asserts that C. Payne has not
presented any facts which suggest that Wilder acted unreasonably in the context of any of her
federal or state claims. See Reply at 10-11. According to Wilder, C. Payne
asserts factual distinctions that fail to present any material dispute as to the
constitutionality of Deputy Wilder’s actions. Ignoring the other sources Deputy
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Wilder relied upon in his investigation, Plaintiff asserts that Deputy Wilder only
considered the anonymous tip. She also contends that Mr. Payne’s statements
regarding her appearance are unfounded. . . . Finally, Plaintiff cites the results of
her field sobriety test for the proposition that she does not use methamphetamine.
Reply at 11. Wilder, then, argues that
Deputy Wilder relied upon three different sources before he told Plaintiff she
could not see her children until she cooperated with the investigation. . . .
Moreover, Mr. Payne confirmed Plaintiff’s physical appearance, as described in
the tip, and that Plaintiff resided with a wanted felon. . . . Deputy Wilder’s
conclusion that Plaintiff was not under the influence after her field sobriety test is
immaterial. . . . Plaintiff manifested side-effects of methamphetamine usage,
whether she was under the influence during the traffic stop or not.
Reply at 11-12. Wilder asserts that, in view of the undisputed facts, he “properly balanced the
state’s interest in protecting Plaintiff’s children against her right to her children . . . [and] reacted
reasonably in light of the facts” when he extended the traffic stop with a field sobriety test.
Reply at 11-12.

Wilder concludes by asserting his qualified immunity and entitlement to

summary judgment on all counts against him. See Reply at 12.
4.

The Hearing.

The Court held a hearing on June 5, 2017. See Transcript of Hearing, taken June 5, 2017
(“Tr.”).12 At the hearing, the Court heard argument on a variety of issues and, regarding the
MSJ, heard argument first from Wilder. See Tr. at 18:1-4 (Court). The Court also heard
argument from Bucag, in tandem, which it will address in its resolution of Bucag’s motions at a
later date. Wilder, then, began by explaining that C. Payne has, as to Wilder, brought a
[Fourteenth] amendment claim for a substantive due process violation, a
Fourteenth Amendment claim for procedural due process violation, also a Fourth
Amendment claim for a field sobriety test that was given to the plaintiff, Ms.
Payne. And has also, under count two, brought what appears to be the state
constitutional analog to the substantive due process familial integrity claim.
12

The Court’s citations to the transcript of the hearing refer to the court reporter’s
original, unedited version. Any final transcript may contain slightly different page and/or line
numbers.
- 27 -

Tr. at 18:12-20 (Martinez). Wilder then indicated that “the plaintiff must meet [her] two part
burden to show a violation of a constitutional right that was clearly established. [U]nder either
prong . . . either under the first prong or the second prong . . . defendant is entitled to qualified
immunity.” Tr. at 18:23-19:4 (Martinez). Beginning with the federal substantive due process
claims, Wilder conceded that there was a federal “constitutional right to familial integrity,” but
that the “right is amorphous, because we have to balance the state’s interests in the child’s
safety.” Tr. at 19:14-18 (Martinez). Wilder continued, however, by explaining:
[W]hen you look at the second prong of the qualified immunity analysis, that
being the clearly established prong, the plaintiff would have to show that by using
similar case law that Deputy Wilder’s actions were prohibited. And if you look at
the actions that Deputy Wilder took on that day they’re really simple. CYFD
involved him in an investigation based on an anonymous tip that Ms. Payne may
be either using methamphetamines or selling methamphetamines out of the her
residence. Now, at the time the children were with their father. And Deputy
Wilder gets this anonymous complaint from CYFD. . . . CYFD got the
anonymous tip, Your Honor and Mr. Bucag then enlisted Deputy Wilder to assist
in the investigation. And based on the anonymous tip, what Mr. Wilder did is he
did a background investigation on Ms. Payne, found that she had a suspended
license. He also went to Ms. Payne’s ex-husband’s house, who was initially in
the state case a defendant to this case, Robert Payne. . . . Defendant Wilder
actually went to talk . . . and talked to the father. Now, when you look at this
anonymous tip, they said this Ms. Payne may be [selling] drugs and using drugs
around the children. The record evidence shows that Deputy Wilder spoke with
Mr. Payne, and he corroborated. And Mr. Payne relayed to Deputy Wilder that
Ms. Payne was skinny, had scabs on her body, information that was consistent at
least in the deputy’s mind with methamphetamine use. . . . So based on this
investigation, Deputy Wilder ultimately sees Ms. Payne driving on White Sands
Boulevard in Alamogordo, New Mexico.
Tr. at 19:18-22:1 (Martinez). Wilder explained that, as a result of his investigation into C.
Payne, he knew that she had a suspended driver’s license, which supplied his reasonable
suspicion to execute the traffic stop. See Tr. at 22:12-13 (Martinez). According to Wilder, the
traffic stop “relates to the familial substantive due process right,” because
[h]e asked her to, if he could go do a home visit to ensure that the house was safe.
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And he did tell her as the record and the video will show that if she did not
comply and allow him to look into the home that she would not be able to see her
children. He also told this to Mr. Payne. That is the basis for the familial
integrity claim [against Wilder].
Tr. at 22:16-24 (Martinez). Upon that proffer of fact, Wilder then argued that, under the clearlyestablished prong, C. Payne’s Response
has wholly failed to p[o]int out any cases that were similar that would put beyond
debate that the verbal statement that Ms. Payne could not see her children violated
her constitutional right to familial integrity, and because the plaintiff’s response
whol[]ly fails [to] discuss any cases that are similar to the circumstances faced by
Deputy Wilder, the Court is within its power to grant qualified immunity.
Tr. at 23:2-10 (Martinez).

The Court inquired, at this point, what the effect of Wilder’s

statements about C. Payne’s custody were subsequent to the traffic stop, to which Wilder
explained:
[T]he children stayed with Mr. Payne at their house. My understanding is based
on the visitation agreement entered into by the state court that [it] was Mr.
Payne’s weekend, or time to have the children, if you will. So Deputy Wilder
never physically took control of the children, never placed them in state custody.
There is nothing in the record that would show that CYFD ever placed these
children in state custody[;] the only thing that Deputy Wilder did was assist in a
CYFD investigation that was later found as, they closed that investigation for lack
of cooperation by Ms. Payne. So Deputy Wilder assists in this investigation and
makes a verbal statement that she cannot see the children. That is it. That is all
he did. He never placed the children in state custody.
Tr. at 23:17-24:7 (Martinez). Wilder also indicated that, on one occasion, after the traffic stop,
he attempted once more to make a safety check of the home, but was refused. See Tr. at 24:2225:3 (Martinez). Further, Wilder reiterated that criminal charges were not brought against C.
Payne. See Tr. at 26:11-12 (Martinez).
As to Wilder’s MSJ, the Court began by inquiring: “I’m just trying to get a handle on
what the law is here. What do you understand the standard to be, is it still this shock the
conscience or do you think there is a different standard for this particular right?” Tr. at 31:13-15

- 29 -

(Court). C. Payne stated that
the general description of the right with regard to Deputy Wilder is that parental
rights are rights that may not be interfered with without due process of law. The
specifics are set out in the cases that I have cited [and w]hen you go through those
cases, those cases set out the standard that Your Honor seeks. And that is for a
law enforcement officer to interfere with those parent rights you’ll see different
terms used, reasonable belief, reasonable cause, reasonable grounds, reasonable
facts et cetera, et cetera, but I think what they’re all pointing towards is just
reasonable suspicion, what we term as reasonable suspicion. That’s what’s
required for the state to interfere with that relationship. There [are] some factual
issues that have been inaccurately described to Your Honor and I want to clear
those up before we get too lost down the way. When these complaints come in
they go to both CYFD and then CYFD sends them to the law enforcement agency
as New Mexico statute requires them. I don’t believe that Bucag called and said,
hey, Wilder come help me on this. I think it just went to the sheriff’s department;
Wilder was assigned that case, and he started his investigation.
Tr. at 31:25-33:1 (Garcia). C. Payne also stated that Wilder misrepresented that all he
did as far as interference goes was just to tell her at that traffic stop, and the words
he used was [sic] either you’re going to allow me to inspect that house or you’re
not going to see your kids again until we get this inspection done -- I need to
make sure that the house is okay. In our factual presentation set out to the Court,
the allegations that we made in our material fact statement was that not only did
he make that statement there, but continued to call my client and leave messages
on her cellphone saying he wanted to get that inspection done, and she’s not going
to see her kids until he allows her to do that. It wasn’t just one instance. He
continued this on until eventually he stopped. I don’t know what made these two
individuals stop, we just know through the record eventually CYFD closed the
file with a no substantial findings notation on the file.
Tr. at 33:7-23 (Garcia). The Court pushed C. Payne, however, whether she was arguing to
expand the familial substantive due-process right -- an important inquiry in the clearly
established prong of qualified immunity analysis -- because all Wilder did here was make
statements, never having actually removed C. Payne’s kids from her person. See Tr. at 34:11-14
(Court). C. Payne resisted the Court’s characterization, arguing instead that the
argument that I am making or attempting to make is that the law is clear that
custody, a parent and then he can even s[ay] it backwards, a child, both the parent
and child. But especially the parent is entitled to the custody of their [sic]
children. When you issue an order both to the mother and in a meeting with the
- 30 -

father, where you tell the father do not let her have the kids, but you can let her
see the kids, do not let her have these kids until I call you and tell you [that] you
can do so because she’s not letting us look in the house, then you tell the mother
you’re not going to see your kids [until] you let us look at this house, that that is
taking away custody. Custody is the right to physical possession, and the ability
to direct the children’s every day activities while you have that physical
possession. They were aware that custody was to return a day or two later, and
instead these individuals went and said you’re not going to give her back the kid
and do not do so until I tell you to, I think that under the law’s definition, falls
with taking custody of the child. Are you now telling that child where, telling the
child and the parents where that kid can stay and what interactions it is to have
with the outside world.
Tr. at 34:15-35:14 (Garcia). C. Payne reiterated that she did not have custody of her kids in the
time subsequent to seeing Wilder and that, accordingly, he substantively took away her parental
rights. See Tr. at 35:23-36:19 (Garcia). As to what C. Payne termed the merits prong of
substantive due-process analysis, “it is crystal clear in our criminal law precedence, which the
officer should be aware of[,] that an anonymous tip does not constitute reasonable suspicion,”
which she argued is a different issue from the Fourth Amendment reasonable suspicion for the
traffic stop. Tr. at 38:7-39:4 (Garcia, Court). That is, C. Payne argued, she is not arguing at all
that the traffic stop lacked reasonable suspicion at the outset, but primarily that, for substantive
due process, the anonymous tip was not sufficient to support an interference with her parental
rights. See Tr. at 39:8-25 (Garcia, Court). As to the anonymous tip’s content, C. Payne argued
that the tipster’s subjective belief that C. Payne was doing drugs cannot provide reasonable
suspicion of child abuse and that to the extent the tipster identifies her as being “skinny,” she is
skinny. Tr. at 40:3-15 (Garcia). C. Payne also explained that, regarding her alleged “scabs” -an indicator of methamphetamine use -- the Traffic Stop Video belies any possibility of her
having scabs:
On that video you can clearly see her legs her face and her arms and you know
my client would probably shoot me for saying this if she was here, but she’s so
white she glows in the dark. And there is no discoloration that could be
- 31 -

misinterpreted through the video to be these scab[s] that [] they’re referring to.
Her legs are [pale], [pale], [pale] white, and clear, her arms are clear with the
exception of the freckles that you get from the sun with having light skin and her
face, I don’t see any indication of a scab on the face.
Tr. at 41:11-21 (Garcia). As to C. Payne’s supposed “shaking,” C. Payne explained that,
in the video, they’re standing there face-to-face, probably a foot or two between
them in a parking lot right off the roadway. It’s in a business district. It’s all
paved. About ready to do this field sobriety thing. This mother who has had her
children taken away from her is still asking, I don’t understand why I have to keep
doing these things[. Y]ou guys do not have any reason to be taking my children
from me. And Wilder is explaining that he got the report and that he needs to do
a[ll] these things, well, he needs to do the inspection of the house in order to give
her her kids back, and they get into an argument over, you know, the merits of
that, and Wilder responds with, you know, something of and by the way look at
you you’re shak[ing] right now. And she said of course I’m shaking I’ve just had
my children taken away. I feel you’re harassing me in always trying to get in
touch with me and leaving me messages and stuff, and here, we are already again
at a traffic stop. I’m scared. She tells him I’m scared and I don’t, you know, a
single mother who is thrown into this situation[.] I cannot blame her one bit.
Tr. at 42:11-43:8 (Garcia).

C. Payne was not clear whether the traffic stop was the first

encounter between C. Payne and Wilder, and also was not clear whether and when C. Payne had
lost full custody of her children, or when R. Payne and Wilder had conversed about the
anonymous tip with relation to the traffic stop. See Tr. at 44:18-45:24 (Garcia). In reply, the
Court inquired of Wilder: “[Y]our theory has been that . . . there was no removal of the children,
and what [C. Payne] is saying is that yes . . . there was a removal because the police told Mr.
Payne not to give the children back to Ms. Payne. So there was a removal.” Tr. at 48:15-21
(Court). The Court also inquired:
I [am] still focusing on whether there is a violation. Do you have any cases that
says there is a violation when all you have is a police officer, CYFD, somebody
using words rather than . . . an actual taking of the child. Now, [C. Payne is] . . .
saying no I don’t have something that’s not words. But that’s not this case, this
case involves the removal of the children, because of Wilder putting pressure on
Mr. Payne not to send the children back to Ms. Payne.
Tr. at 49:6-15 (Court). Wilder disagreed that inquiry was relevant, instead asserting that,
- 32 -

even if the[re] were a case out there, that would show that a party has a
constitutional right preventing an officer, a state official from saying you can’t
have your kids, it’s still, for it to be clearly established is the key to put beyond
debate that what Wilder did was wrong and plaintiff has pointed to absolutely no
case, the Supreme Court as recently as I believe it was January of this year . . . has
said that we need specific facts and case law to demonstrate a violation of a
clearly established law and we simply don’t have that.
Tr. at 49:16-50:2 (Martinez). Wilder then reiterated the standard requiring the Court to balance
the state’s interests in protecting children against C. Payne’s familial rights, and explained that
Wilder received an anonymous tip referral from CYFD and then went and spoke with R. Payne
about C. Payne’s living arrangements and, during the conversation, R. Payne corroborated the
allegations of methamphetamine usage in that anonymous tip. See Tr. at 51:3-23 (Martinez).
Wilder conceded that R. Payne did not personally observe C. Payne use or sell
methamphetamine, and that he was only suspicious. See Tr. at 52:7-9 (Martinez).
Wilder then turned to his MSJ’s arguments regarding C. Payne’s procedural due process
claims, explaining:
Again, we know that Mr. Wilder or Deputy Wilder informed Ms. Payne that if she
did not comply with this investigation she would not see her children. Again, we
did not remove these children, and what happened at that point was a failure.
That’s in the facts and the attached deposition transcript, a complete and absolute
failure on the part of Ms. Payne to contact any authorities regarding the so-called
removal of the children by Deputy Wilder. We did not remove the children. We
assisted in an investigation. We are not the entity that would give Ms. Payne any
procedural due process. That is the essence of our argument is it relates to that
aspect of the claim.
Tr. at 53:2-16 (Martinez). Wilder crystallized that he was not the entity which could give
procedural due process. See Tr. at 53:19 (Martinez). C. Payne then argued and explained:
[T]o make it clear, our procedural due process claims is that if the deputy and
social worker Bucag did not under the law’s eyes take custody of these children
by preventing mom to have physical possession of the kids and preventing mom
to have decision making authority both at the time when the Court told her she is
to have those rights, that the deputy and CYFD, ad hoc on the side of the highway
adjudicated those rights for Ms. Payne and modified the child custody agreement
- 33 -

to Mr. Payne will keep the kids until this investigation is over, and in order to do
that, it takes at the very minimum notice and opportunity to be heard and those are
nowhere presented throughout the record. And without that that is the procedural
side of the Fourteenth Amendment violation.
Tr. at 54:4-19 (Garcia). In reply, Wilder maintained that, at this stage, in regard to qualified
immunity, C. Payne again has failed to “point to some case law that would show that the actions
of Deputy Wilder would somehow violate procedural due process of Ms. Payne.” Tr. at 61:1821 (Martinez).
Wilder then addressed C. Payne’s allegations surrounding the Fourth Amendment and the
field sobriety test, and explained that he moved for summary judgment on this count, because,
based on background investigation that Ms. Payne’s license was suspended, she
was pulled over. We would concede that generally you [can] not extend traffic
stops beyond the reason that you pull somebody over unless you have articulable
facts, and the facts show that deputy Wilder did indeed have these articulable
facts. Whether he was mistaken that Ms. Payne was scared, or afraid, because he
pulled her [over and] she was jittery, she had sor[]es on her body.
Tr. at 62:13-22 (Martinez). The Court pressed Wilder about C. Payne’s earlier argument that
you could not see scabs on the Traffic Stop Video, to which Wilder responded the Traffic Stop
Video is not high definition, and, regardless, C. Payne has done nothing to put evidence on the
record that she did not have scabs. See Tr. at 62:23-63:5 (Court, Martinez). In addition to
relying on the scabs, which Wilder conceded were not evidence of present drug use, Wilder
explained that he formed reasonable suspicion to extend the stop by virtue of her thin appearance
and shakiness, too, but also that he was operating under reasonable suspicion from the beginning
of the traffic stop, anyway. See Tr. at 63:14-65:20 (Martinez). C. Payne responded by first
conceding that the state and federal standards for probable cause and reasonable suspicion in this
regard were indistinguishable. See Tr. at 66:14-24 (Court, Garcia). The Court, then, asked C.
Payne “[w]hy is it, though, he’s got some evidence that she’s a meth user, and shaking, why isn’t

- 34 -

that enough to have reasonable suspicion to conduct the field sobriety test?” Tr. at 66:25-67:3
(Court). C. Payne argued that Wilder would still “have to do one more step and say are these
likely to have come from using methamphetamine, and [is she] presently under the effects of that
drug so that [her] driving is impaired to the slightest degree.” Tr. at 67:15-19 (Garcia). Wilder
next concluded his argument on the Fourth Amendment issue by stating:
Whether or not, whether the shaking was enough to allow the field sobriety test[,
u]nder qualified immunity[,] Deputy Wilder can be mistaken and still be entitled
to qualified immunity. So even if he’s mistaken as to why she’s shaking, when
you combine it with the other information that he gleaned through his
investigation, it would be reasonable for deputy Wilder to conduct that field
sobriety test.
Tr. at 69:8-15 (Martinez).
Wilder next discussed “count 2, [where] plaintiff asserts that deputy Wilder violated her
state rights under article 2, section 18 to the custody and visitation of her children.” Tr. at 69:1922 (Martinez).

The Court then confirmed that Article II, Section 18 of the New Mexico

Constitution was the counterpart to the federal substantive familial integrity due process claim, at
which point C. Payne conceded that she was not arguing that the New Mexico protections were
stronger than the federal protections. See Tr. at 70:3-5 (Court); id. at 70:15-16 (Garcia). Wilder
then turned to C. Payne’s allegations under “article 2, section 10 of the New Mexico Constitution
which is the analog to the Fourth Amendment.” Tr. at 70:22-71:5 (Martinez). Similarly, C.
Payne conceded that she was not arguing that the New Mexico protections were stronger than the
federal protections. See Tr. at 71:9 (Garcia). Wilder explained that the case was originally filed
in state court, making only the state claims, but that C. Payne ultimately amended to add the
federal claims, prompting removal. See Tr. at 71:18-23 (Martinez).
The Court then gave its inclination:
I’m probably going to analyze whether there was a constitutional violation of the
- 35 -

first two, the substantive due process and the procedural due process. So I
probably won’t skip to the clearly established. I’ll first decide whether there is a
violation. And I don’t have a good sense as to which way I’m going to go on that.
I need to make sure I understand fully these facts, but I am troubled by this link
between Wilder and Mr. Payne whether that’s enough to establish the children
were taken away. I’m skeptical that simply making these statements is enough.
But state authority ordered Mr. Payne to not let the children go back, that troubles
me, and I realize [the] argument that I shouldn’t attribute Mr. Payne’s actions to
Mr. Wilder. But I’m still troubled by a police officer stating that a citizen cannot
do something then saying that’s a third party so I’ll have to give that some
thought. I do think though that it’s probably going to fail on the clearly
established, I do think that on both these scores it’s going to fail so I’m inclined to
grant the summary judgment on the first two federal claims. On the Fourth
Amendment, I think that the law is probably clearly established in these traffic
stop incidents, and the fact patterns typically vary a little bit between traffic stop
to traffic stop, but I do think that probably in this case Officer Wilder had
reasonable suspicion to order the field sobriety test. I don’t think he had to have
probable cause. If that were the case he’d go ahead and arrest without going
through a field sobriety. So I don’t think he had probable cause but I do think he
had reasonable [suspicion], and therefore was authorized to engage in the field
sobriety test I’m inclined to think that the law is clearly established enough on
these traffic violation[s], even though there may be some factual differences from
case to case so I’m inclined to grant the motion there. As far as the state claims, it
seems to me depending upon what I do with Mr. Bucag, I may end up without any
federal claims and may be inclined to send it back to state court. On the other
hand if I’m going to leave anything with Mr. Bucag it may be that I need to go
ahead and dismiss the state claims so I’ll have to give that some thought and see
where it fits in at the time that we’re deciding the motion, whether I’m going to
leave any federal claims in the case or not.
Tr. at 72:7-74:5 (Court).
LAW REGARDING MOTIONS FOR SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The movant bears the
initial burden of ‘show[ing] that there is an absence of evidence to support the nonmoving
party’s case.’”

Herrera v. Santa Fe Pub. Sch., 956 F. Supp. 2d 1191, 1221 (D.N.M.

- 36 -

2013)(Browning, J.)(quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th
Cir. 1991)). See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Before the court can rule on a party’s motion for summary judgment, the moving
party must satisfy its burden of production in one of two ways: by putting
evidence into the record that affirmatively disproves an element of the nonmoving
party’s case, or by directing the court’s attention to the fact that the non-moving
party lacks evidence on an element of its claim, “since a complete failure of proof
concerning an essential element of the nonmoving party’s case necessarily renders
all other facts immaterial.” Celotex, 477 U.S. at 323-25. On those issues for
which it bears the burden of proof at trial, the nonmovant “must go beyond the
pleadings and designate specific facts to make a showing sufficient to establish
the existence of an element essential to his case in order to survive summary
judgment.” Cardoso v. Calbone, 490 F.3d 1194, 1197 (10th Cir. 2007).
Plustwik v. Voss of Norway ASA, 2013 WL 1945082, at *1 (D. Utah May 9, 2013)(Sam, J.)
(emphasis added). “If the moving party will bear the burden of persuasion at trial, that party
must support its motion with credible evidence -- using any of the materials specified in Rule
56(c) -- that would entitle it to a directed verdict if not controverted at trial.” Celotex Corp. v.
Catrett, 477 U.S. at 331 (Brennan, J., dissenting)(emphasis in original).13 Once the movant
meets this burden, rule 56 requires the nonmoving party to designate specific facts showing that
there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324; Anderson v.
Liberty Lobby, Inc., 477 U.S. at 256.
The party opposing a motion for summary judgment must “set forth specific facts
showing that there is a genuine issue for trial as to those dispositive matters for which it carries
the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238,

13

Although the Honorable William J. Brennan, Jr., Associate Justice of the Supreme Court of the
United States of America, dissented in Celotex Corp. v. Catrett, this sentence is widely
understood to be an accurate statement of the law. See 10A Charles Allen Wright & Arthur R.
Miller, Federal Practice and Procedure § 2727, at 470 (3d ed. 1998)(“Although the Court issued
a five-to-four decision, the majority and dissent both agreed as to how the summary-judgment
burden of proof operates; they disagreed as to how the standard was applied to the facts of the
case.”).
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1241 (10th Cir. 1990).

See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th

Cir. 1993)(“However, the nonmoving party may not rest on its pleadings but must set forth
specific facts showing that there is a genuine issue for trial as to those dispositive matters for
which it carries the burden of proof.”)(internal quotation marks omitted).

Rule 56(c)(1)

provides: “A party asserting that a fact . . . is genuinely disputed must support the assertion
by . . . citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made
for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed. R.
Civ. P. 56(c)(1). It is not enough for the party opposing a properly supported motion for
summary judgment to “rest on mere allegations or denials of his pleadings.” Anderson v.
Liberty Lobby, Inc., 477 U.S. at 256. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231
(10th Cir. 1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980)(“[O]nce a
properly supported summary judgment motion is made, the opposing party may not rest on the
allegations contained in his complaint, but must respond with specific facts showing the
existence of a genuine factual issue to be tried.” (citation omitted)(internal quotation marks
omitted)).
Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations
unsupported by specific facts, or speculation.”

Colony Nat’l Ins. Co. v. Omer, 2008 WL

2309005, at *1 (D. Kan. 2008)(Robinson, J.)(citing Argo v. Blue Cross & Blue Shield of Kan.,
Inc., 452 F.3d 1193, 1199 (10th Cir. 2006); Fed. R. Civ. P. 56(e)). “In responding to a motion
for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion
and may not escape summary judgment in the mere hope that something will turn up at trial.’”

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Colony Nat’l Ins. Co. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d
789, 794 (10th Cir. 1988)).
To deny a motion for summary judgment, genuine factual issues must exist that “can be
resolved only by a finder of fact because they may reasonably be resolved in favor of either
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 250. A mere “scintilla” of evidence will
not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. at 248). Rather, there must be sufficient evidence on which the
fact finder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc.,
477 U.S. at 251 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448
(1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539. “[T]here is no evidence for trial unless there is
sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If
the evidence is merely colorable . . . or is not significantly probative, . . . summary judgment may
be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249 (citations omitted). Where a
rational trier of fact, considering the record as a whole, could not find for the nonmoving party,
there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). See also Am. Mech. Sols., L.L.C. v. Northland Process Piping, Inc., 184
F. Supp. 3d 1030, 1061 (D.N.M. 2016)(Browning, J.)(considering the nuance of a motion for
summary judgment, and the interplay between state and federal law, and providing -- in part -that “New Mexico, along with other jurisdictions, has required expert testimony when the issue
of causation is presented in a context which is not a matter of common knowledge”).
When reviewing a motion for summary judgment, the court should keep in mind certain
principles. First, the court’s role is not to weigh the evidence, but to assess the threshold issue
whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty

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Lobby, Inc., 477 U.S. at 249. Second, the ultimate standard of proof is relevant for purposes of
ruling on a summary judgment, such that, when ruling on a summary judgment motion, the court
must “bear in mind the actual quantum and quality of proof necessary to support liability.”
Anderson v. Liberty Lobby, Inc., 477 U.S. at 254. Third, the court must resolve all reasonable
inferences and doubts in the nonmoving party’s favor, and construe all evidence in the light most
favorable to the nonmoving party.

See Hunt v. Cromartie, 526 U.S. 541, 550-55 (1999);

Anderson v. Liberty Lobby, Inc., 477 U.S. at 255 (“The evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.”). Fourth, the court cannot
decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255.
There are, however, limited circumstances in which the court may disregard a party’s
version of the facts. This doctrine developed most robustly in the qualified immunity arena. In
Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court concluded that summary judgment was
appropriate where video evidence “quite clearly contradicted” the plaintiff’s version of the facts.
550 U.S. at 378-81. The Supreme Court explained:
At the summary judgment stage, facts must be viewed in the light most
favorable to the nonmoving party only if there is a “genuine” dispute as to those
facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving
party has carried its burden under Rule 56(c), its opponent must do more than
simply show that there is some metaphysical doubt as to the material facts . . . .
Where the record taken as a whole could not lead a rational trier of fact to find for
the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec.
Industrial Co. v. Zenith Radio Corp., 475 U.S. [at] 586-587 . . . (footnote
omitted). “[T]he mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. [at] 247-248 . . . . When opposing
parties tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for summary judgment.
That was the case here with regard to the factual issue whether respondent
was driving in such fashion as to endanger human life. Respondent’s version of
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events is so utterly discredited by the record that no reasonable jury could have
believed him. The Court of Appeals should not have relied on such visible
fiction; it should have viewed the facts in the light depicted by the videotape.
Scott v. Harris, 550 U.S. at 380-81 (emphasis in original).
The United States Court of Appeals for the Tenth Circuit applied this doctrine in
Thomson v. Salt Lake County and explained:
[B]ecause at summary judgment we are beyond the pleading phase of the
litigation, a plaintiff’s version of the facts must find support in the record: more
specifically, “[a]s with any motion for summary judgment, when opposing parties
tell two different stories, one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not adopt that version of
the facts.” York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008)
(quoting Scott, 550 U.S. at 380); see also Estate of Larsen ex rel. Sturdivan v.
Murr, 511 F.3d 1255, 1258 (10th Cir. 2008).
Thomson v. Salt Lake Cty., 584 F.3d at 1312 (brackets omitted). “The Tenth Circuit, in Rhoads
v. Miller, [352 F. App’x 289 (10th Cir. 2009)(Tymkovich, J.)(unpublished),14] explained that the
blatant contradictions of the record must be supported by more than other witnesses’
testimony[.]” Lymon v. Aramark Corp., 728 F. Supp. 2d 1222, 1249 (D.N.M. 2010)(Browning,
J.)(citation omitted), aff’d, 499 F. App’x 771 (10th Cir. 2012).
In evaluating a motion for summary judgment based on qualified immunity, we
take the facts “in the light most favorable to the party asserting the injury.” Scott
14

Rhoads v. Miller is an unpublished opinion, but the Court can rely on an unpublished
opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th Cir. R.
32.1(A) (“Unpublished opinions are not precedential, but may be cited for their persuasive
value.”). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, . . . and we have
generally determined that citation to unpublished opinions is not favored.
However, if an unpublished opinion or order and judgment has persuasive value
with respect to a material issue in a case and would assist the court in its
disposition, we allow a citation to that decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005)(citations omitted). The Court
finds that Rhoads v. Miller has persuasive value with respect to material issues, and will assist
the Court in its preparation of this Memorandum Opinion and Order.
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v. Harris, 550 U.S. 372, 377 (2007). “[T]his usually means adopting . . . the
plaintiff’s version of the facts,” id. at 378, unless that version “is so utterly
discredited by the record that no reasonable jury could have believed him,” id. at
380. In Scott, the plaintiff’s testimony was discredited by a videotape that
completely contradicted his version of the events. 550 U.S. at 379. Here, there is
no videotape or similar evidence in the record to blatantly contradict Mr. Rhoads’
testimony. There is only other witnesses’ testimony to oppose his version of the
facts, and our judicial system leaves credibility determinations to the jury. And
given the undisputed fact of injury, Mr. Rhoads’ alcoholism and memory
problems go to the weight of his testimony, not its admissibility . . . . Mr. Rhoads
alleges that his injuries resulted from a beating rendered without resistance or
provocation. If believed by the jury, the events he describes are sufficient to
support a claim of violation of clearly established law under Graham v. Connor,
490 U.S. 386, 395-96 (1989), and this court’s precedent.
Rhoads v. Miller, 352 F. App’x at 291-92 (internal quotation marks omitted). See Lymon v.
Aramark Corp., 728 F. Supp. 2d at 1249-50 (quoting Rhoads v. Miller, 352 F. App’x at 291-92).
In a concurring opinion in Thomson v. Salt Lake County, the Honorable Jerome A. Holmes,
United States Circuit Judge for the Tenth Circuit, stated that courts must focus first on the legal
question of qualified immunity and “determine whether plaintiff’s factual allegations are
sufficiently grounded in the record such that they may permissibly comprise the universe of facts
that will serve as the foundation for answering the legal question before the court,” before
inquiring into whether there are genuine issues of material fact for resolution by the jury. 584
F.3d at 1326-27 (Holmes, J., concurring)(citing Goddard v. Urrea, 847 F.2d 765, 770 (11th Cir.
1988)(Johnson, J., dissenting))(observing that, even if factual disputes exist, “these disputes are
irrelevant to the qualified immunity analysis because that analysis assumes the validity of the
plaintiffs’ facts”).
LAW REGARDING LIABILITY FOR CONSTITUTIONAL VIOLATIONS UNDER 42
U.S.C. § 1983
Section 1983 of Title 42 of the United States Code provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia, subjects,
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or causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress, except that in
any action brought against a judicial officer for an act or omission taken in such
officer’s judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable. For the
purposes of this section, any Act of Congress applicable exclusively to the
District of Columbia shall be considered to be a statute of the District of
Columbia.
42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law.” West v. Atkins, 487
U.S. 42, 48 (1988). Individual, non-supervisory defendants may be liable if they knew or
reasonably should have known that their conduct would lead to the deprivation of a plaintiff’s
constitutional rights by others, and an unforeseeable intervening act has not terminated their
liability. See Martinez v. Carson, 697 F.3d 1252, 1255 (10th Cir. 2012)(“The requisite causal
connection is satisfied if [the defendants] set in motion a series of events that [the defendants]
knew or reasonably should have known would cause others to deprive [the plaintiffs] of [their]
constitutional rights.” (quoting Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir. 2006))). The
Supreme Court has made clear that there is no respondeat superior liability under 42 U.S.C. §
1983. See Ashcroft v. Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to
Bivens15 and § 1983 suits, a plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the Constitution.”); Bd. of Cnty.
Comm’rs v. Brown, 520 U.S. 397, 403 (1997). “An entity cannot be held liable solely on the

15

In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), the Supreme
Court held that a violation of the Fourth Amendment to the Constitution of the United States of
America “by a federal agent acting under color of his authority gives rise to a cause of action for
damages consequent upon his unconstitutional conduct.” 403 U.S. at 389.
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basis of the existence of an employer-employee relationship with an alleged tortfeasor.” Garcia
v. Casuas, No. CIV 11-0011 JB/RHS, 2011 WL 7444745, at *25 (D.N.M. Dec. 8,
2011)(Browning, J.)(citing Monell v. Dep’t of Soc. Servs., 436 U.S. at 689). Supervisors can be
held liable only for their own unconstitutional or illegal policies, and not for the employees’
tortious acts. See Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir. 1998).
1.

Color of State Law.

“Under Section 1983, liability attaches only to conduct occurring ‘under color of law.’”
Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995). The undercolor-of-state-law requirement is a “jurisdictional requisite for a § 1983 action, which . . .
furthers the fundamental goals of preserving an area of individual freedom by limiting the reach
of federal law . . . and avoiding imposing on the state, its agencies or officials, responsibility for
conduct for which they cannot fairly be blamed.” Jojola v. Chavez, 55 F.3d 488, 492 (10th Cir.
1995). “The traditional definition of acting under color of state law requires that the defendant in
a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law.’” West v. Atkins, 487 U.S. at
49 (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). “The authority with which the
defendant is allegedly ‘clothed’ may be either actual or apparent.” Jojola v. Chavez, 55 F.3d at
493. Accordingly, at a base level, to conclude that an action was taken under color of state law,
the court must determine that “‘the conduct allegedly causing the deprivation of a federal right’
must be ‘fairly attributable to the State.’” Gallagher v. Neil Young Freedom Concert, 49 F.3d at
1447 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)).
The Tenth Circuit has directed that, while “‘state employment is generally sufficient to
render the defendant a state actor . . . [,]’ at the same time, it is ‘well settled that an otherwise

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private tort is not committed under color of law simply because the tortfeasor is an employee of
the state.’” Jojola v. Chavez, 55 F.3d at 493 (quoting Lugar v. Edmondson Oil Co., 457 U.S. at
935-36 n.18; Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir. 1995)). Thus, “before
conduct may be fairly attributed to the state because it constitutes action ‘under color of state
law,’ there must be ‘a real nexus’ between the employee’s use or misuse of their authority as a
public employee, and the violation allegedly committed by the defendant.” Jojola v. Chavez, 55
F.3d at 493. What constitutes the required real nexus, however, is not completely clear. As the
Tenth Circuit has stated, whether there is a real nexus in a particular case depends on the
circumstances:
The under color of law determination rarely depends on a single, easily
identifiable fact, such as the officer’s attire, the location of the act, or whether or
not the officer acts in accordance with his or her duty. Instead one must examine
“the nature and circumstances of the officer’s conduct and the relationship of that
conduct to the performance of his official duties.”
David v. City & Cnty. of Denver, 101 F.3d 1344, 1353 (10th Cir. 1996)(citations omitted)
(quoting Martinez v. Colon, 54 F.3d 980, 986 (1st Cir. 1995)).
2.

Individual Liability.

Government actors may be liable for the constitutional violations that another committed,
if the actors “set in motion a series of events that the defendant knew or reasonably should have
known would cause others to deprive the plaintiff of her constitutional rights,” thus establishing
the “requisite causal connection” between the government actor’s conduct and a plaintiff’s
constitutional deprivations. Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir. 2006). The Tenth
Circuit has explained that § 1983 liability should be “‘read against the background of tort
liability that makes a man responsible for the natural consequences of his actions.’” Martinez v.
Carson, 697 F.3d at 1255 (quoting Monroe v. Pape, 365 U.S. 167, 187 (1961), overruled in part

- 45 -

by Monell v. Dep’t of Soc. Servs., 436 U.S. at 663). “Thus, Defendants are liable for the harm
proximately caused by their conduct.” Martinez v. Carson, 697 F.3d at 1255 (citing Trask v.
Franco, 446 F.3d at 1046). As the Court has previously concluded, “a plaintiff who establishes
liability for deprivations of constitutional rights actionable under 42 U.S.C. § 1983 is entitled to
recover compensatory damages for all injuries suffered as a consequence of those deprivations.
The recovery should be guided by common-law tort principles -- including principles of
causation . . . .” Train v. City of Albuquerque, 629 F. Supp. 2d 1243, 1251 (D.N.M. 2009)
(Browning, J.).16
The Tenth Circuit has found liability for those defendants who proximately caused an
injury alleged under § 1983 and stated that the fact that the “conduct of other people may have
concurrently caused the harm does not change the outcome as to [the defendant],” so long as
there was not a superseding-intervening cause of a plaintiff’s harm. Lippoldt v. Cole, 468 F.3d
1204, 1220 (10th Cir. 2006).
Even if a factfinder concludes that the residential search was unlawful, the
officers only “would be liable for the harm ‘proximately’ or ‘legally’ caused by
their tortious conduct.” Bodine v. Warwick, 72 F.3d 393, 400 (3d Cir. 1995).
“They would not, however, necessarily be liable for all of the harm caused in the
‘philosophic’ or but-for sense by the illegal entry.” 72 F.3d at 400. In civil rights
cases, a superseding cause, as we traditionally understand it in tort law, relieves a
defendant of liability. See, e.g., Warner v. Orange Cnty. Dep’t of Prob., 115 F.3d
1068, 1071 (2d Cir. 1997); Springer v. Seaman, 821 F.2d 871, 877 (1st Cir. 1987),
abrogated on other grounds by Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701
(1989).

16

The Court clarified in Herrera v. Santa Fe Public Schools, 41 F. Supp. 3d 1188 (D.N.M.
Aug. 29, 2014)(Browning, J.), that common-law causation standards do not necessarily hold in
the municipal-liability context, and, in fact, “the causation standard for municipal liability cases
is unclear in the Tenth Circuit.” 41 F. Supp. 3d at 1273. The Court applied a traditional
proximate cause analysis, and left open the possibility that there might be some greater,
undefined causation requirement. See Herrera v. Santa Fe Public Schools, 41 F. Supp. 3d at
1281.
- 46 -

Trask v. Franco, 446 F.3d at 1046. Thus, in the context of a claim under the Fourth Amendment,
the Tenth Circuit has held that government actors “may be held liable if the further unlawful
detention and arrest would not have occurred but for their conduct and if there were no
unforeseeable intervening acts superseding their liability.” Martinez v. Carson, 697 F.3d at
1255. The Tenth Circuit gave an example of a superseding-intervening cause, quoting the
Honorable Samuel J. Alito, then-United States Circuit Judge for the United States Court of
Appeals for the Third Circuit:
Suppose that three police officers go to a suspect’s house to execute an
arrest warrant and that they improperly enter without knocking and announcing
their presence. Once inside, they encounter the suspect, identify themselves,
show him the warrant, and tell him that they are placing him under arrest. The
suspect, however, breaks away, shoots and kills two of the officers, and is
preparing to shoot the third officer when that officer disarms the suspect and in
the process injures him. Is the third officer necessarily liable for the harm caused
to the suspect on the theory that the illegal entry without knocking and
announcing rendered any subsequent use of force unlawful? The obvious answer
is “no.” The suspect’s conduct would constitute a “superseding” cause, see
Restatement (Second) of Torts § 442 (1965), that would limit the officer’s
liability. See id. § 440.
Trask v. Franco, 446 F.3d at 1046 (quoting Bodine v. Warwick, 72 F.3d at 400). Additionally,
“[f]oreseeable intervening forces are within the scope of the original risk, and . . . will not
supersede the defendant’s responsibility.” Trask v. Franco, 446 F.3d at 1047 (quoting William
Lloyd Prosser et al., Prosser and Keeton on Torts § 44, at 303-04 (5th ed.1984)). If
the reasonable foreseeability of an intervening act’s occurrence is a factor in
determining whether the intervening act relieves the actor from liability for his
antecedent wrongful act, and under the undisputed facts there is room for
reasonable difference of opinion as to whether such act was wrongful or
foreseeable, the question should be left for the jury.
Trask v. Franco, 446 F.3d at 1047 (citing Restatement (Second) of Torts § 453 cmt.b (1965)).
3.

Supervisory Liability.

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The Tenth Circuit has held that supervisors are not liable under 42 U.S.C. § 1983 unless
there is “‘an affirmative link . . . between the constitutional deprivation and either the
supervisor’s personal participation, . . . exercise of control or direction, or . . . failure to
supervise.’” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009)(quoting Green v.
Branson, 108 F.3d 1296, 1302 (10th Cir. 1997))(alterations omitted). Because supervisors can be
held liable only for their own constitutional or illegal policies, and not for the torts that their
employees commit, supervisory liability requires a showing that such policies were a “deliberate
or conscious choice.” Barney v. Pulsipher, 143 F.3d at 1307-08 (citations and internal quotation
marks omitted). Cf. Bd. of Cnty. Comm’rs v. Brown, 520 U.S. at 404 (“[I]t is not enough for a
§ 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff
must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving
force’ behind the injury alleged.”)(emphasis in original).
The Tenth Circuit has recognized that Ashcroft v. Iqbal limited, but did not eliminate,
supervisory liability for government officials based on an employee’s or subordinate’s
constitutional violations. See Garcia v. Casuas, 2011 WL 7444745, at *25-26 (citing Dodds v.
Richardson, 614 F.3d 1185 (10th Cir. 2010)). The language that may have altered the landscape
for supervisory liability in Ashcroft v. Iqbal is as follows: “Because vicarious liability is
inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution.” Ashcroft
v. Iqbal, 556 U.S. at 676. The Tenth Circuit in Dodds v. Richardson held:
Whatever else can be said about Iqbal, and certainly much can be said, we
conclude the following basis of § 1983 liability survived it and ultimately resolves
this case: § 1983 allows a plaintiff to impose liability upon a defendant-supervisor
who creates, promulgates, implements, or in some other way possesses
responsibility for the continued operation of a policy the enforcement (by the
defendant-supervisor or her subordinates) of which “subjects, or causes to be
- 48 -

subjected” that plaintiff “to the deprivation of any rights . . . secured by the
Constitution . . . .”
Dodds v. Richardson, 614 F.3d at 1199. The Tenth Circuit noted that Ashcroft v. Iqbal “does not
purport to overrule existing Supreme Court precedent,” but stated that “Iqbal may very well have
abrogated § 1983 supervisory liability as we previously understood it in this circuit in ways we
do not need to address to resolve this case.” Dodds v. Richardson, 614 F.3d at 1200. It
concluded that Ashcroft v. Iqbal did not alter “the Supreme Court’s previously enunciated § 1983
causation and personal involvement analysis.” Dodds v. Richardson, 614 F.3d at 1200. The
Tenth Circuit, based on this conclusion, set forth a test for supervisory liability under § 1983
after Ashcroft v. Iqbal:
A plaintiff may . . . succeed in a § 1983 suit against a defendant-supervisor by
demonstrating: (1) the defendant promulgated, created, implemented or possessed
responsibility for the continued operation of a policy that (2) caused the
complained of constitutional harm, and (3) acted with the state of mind required
to establish the alleged constitutional deprivation.
Dodds v. Richardson, 614 F.3d at 1199-1200 (citing Summum v. City of Ogden, 297 F.3d 995,
1000 (10th Cir. 2002)). The Tenth Circuit noted, however: “We do not mean to imply that these
are distinct analytical prongs, never to be intertwined.” Dodds v. Richardson, 614 F.3d at 1200
n.8. Relying on the Supreme Court’s opinion in Board of County Commissioners v. Brown, the
Tenth Circuit reasoned that two of the prongs often, if not always, are sufficient proof that the
third prong has been met also:
Where a plaintiff claims that a particular municipal action itself violates federal
law, or directs an employee to do so, resolving these issues of fault and causation
is straightforward. Section 1983 itself contains no state-of-mind requirement
independent of that necessary to state a violation of the underlying federal right.
In any § 1983 suit, however, the plaintiff must establish the state of mind required
to prove the underlying violation. Accordingly, proof that a municipality’s
legislative body or authorized decisionmaker has intentionally deprived a plaintiff
of a federally protected right necessarily establishes that the municipality acted
culpably. Similarly, the conclusion that the action taken or directed by the
- 49 -

municipality or its authorized decisionmaker itself violates federal law will also
determine that the municipal action was the moving force behind the injury of
which the plaintiff complains.
Dodds v. Richardson, 614 F.3d at 1200 n.8 (quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S. at
404-05)(internal quotation marks omitted). The Tenth Circuit noted that “[w]e think the same
logic applies when the plaintiff sues a defendant-supervisor who promulgated, created,
implemented or possessed responsibility for the continued operation of a policy that itself
violates federal law.” Dodds v. Richardson, 614 F.3d at 1200 n.8. Thus, the Tenth Circuit
reduced the test to what can be seen as a two-part test for supervisor liability, requiring the
plaintiff to prove “an ‘affirmative’ link . . . between the unconstitutional acts by their
subordinates and their ‘adoption of any plan or policy . . . -- express or otherwise -- showing
their authorization or approval of such misconduct.’” Dodds v. Richardson, 614 F.3d at 1200-01
(quoting Rizzo v. Goode, 423 U.S. 362, 371 (1976)).
4.

Municipal Liability.

A municipality will not be held liable under § 1983 solely because its officers inflicted
injury. See Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006). Rather, to establish
municipal liability under § 1983, a plaintiff must demonstrate: (i) that an officer committed an
underlying constitutional violation; (ii) that a municipal policy or custom exists; and (iii) that
there is a direct causal link between the policy or custom, and the injury alleged. See Graves v.
Thomas, 450 F.3d at 1218. When a claim is brought against a municipality for failing to train its
officers adequately, the plaintiff must show that the municipality’s inaction was the result of
deliberate indifference to the rights of its inhabitants. See Graves v. Thomas, 450 F.3d at 1218.
LAW REGARDING SUBSTANTIVE DUE-PROCESS CLAIMS

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The Fourteenth Amendment’s Due Process Clause provides that “no State shall . . .
deprive any person of life, liberty, or property without due process of law.” U.S. Const. amend.
XIV, § 1. In general, state actors may be held liable under § 1983 only for their own affirmative
acts that violate a plaintiff’s due-process rights and not for third parties’ acts. See Robbins v.
Oklahoma, 519 F.3d at 1251 (citing DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489
U.S. 189, 197). “[N]othing in the language of the Due Process Clause itself requires the State to
protect the life, liberty and property of its citizens against invasion by private actors.” DeShaney
v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. at 195. The Due Process Clause is not a
guarantee of a minimal level of safety and security. See DeShaney v. Winnebago Cnty. Dep’t of
Soc. Servs., 489 U.S. at 195.
1.

Exceptions to the General Rule.

There are, however, two exceptions to this general rule. The first exception -- the
special-relationship doctrine -- arises when the state has a custodial relationship with the victim,
which triggers an affirmative duty to provide protection to that individual. See Christiansen v.
City of Tulsa, 332 F.3d 1270, 1280 (10th Cir. 2003); Graham v. Indep. Sch. Dist. No. 1-89, 22
F.3d 991, 994-95 (10th Cir. 1994). The second exception -- the danger-creation theory -provides that a state may also be liable for an individual’s safety “only when ‘a state actor
affirmatively acts to create, or increases a plaintiff’s vulnerability to, or danger from private
violence.’” Robbins v. Oklahoma, 519 F.3d at 1251 (quoting Currier v. Doran, 242 F.3d 905,
923 (10th Cir. 2001)). “If either the special-relationship or danger-creation exception applies,
the conduct of the state actor must go beyond negligence to the point of ‘shocking the
conscience.’”

Glover v. Gartman, 899 F. Supp. 2d 1115, 1135 (D.N.M. 2012)(Browning,

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J.)(citing Johnson ex rel. Estate of Cano v. Holmes, 455 F.3d 1133, 1142 (10th Cir. 2006)(“The
shocks the conscience standard applies to both types of suits.”)).
2.

Special-Relationship Exception.

The first exception to the general principle that a state’s negligent failure to protect an
individual cannot trigger liability under the due-process clause is the special-relationship
doctrine. A plaintiff must show that they were involuntarily committed to state custody to
establish a duty to protect under the special-relationship doctrine. See Liebson v. N.M. Corr.
Dep’t, 73 F.3d 274, 276 (10th Cir. 1996). “A special relationship exists when the state assumes
control over an individual sufficient to trigger an affirmative duty to provide protection to that
individual (e.g. when the individual is a prisoner or involuntarily committed mental patient).”
Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995).
3.

Danger-Creation Exception.

The Due Process Clause protects against “deliberately wrongful government decisions
rather than merely negligent government conduct.” Uhlrig v. Harder, 64 F.3d at 573. The
danger-creation exception to this rule applies only when “a state actor affirmatively acts to
create, or increases a plaintiff’s vulnerability to, or danger from private violence.” Currier v.
Doran, 242 F.3d 905, 923 (10th Cir. 2001). See Estate of B.I.C. v. Gillen, 702 F.3d 1182, 1187
(10th Cir. 2012)(“[S]tate officials can be liable for the acts of private parties where those
officials created the very danger that caused the harm.”). Under a danger-creation theory, there
is no § 1983 liability absent “an intent to harm” or “an intent to place a person unreasonably at
risk of harm.” Uhlrig v. Harder, 64 F.3d at 573. A plaintiff must show “sufficient[] ‘affirmative
conduct on the part of the state in placing the plaintiff in danger.’” Estate of B.I.C. v. Gillen, 702
F.3d at 1187 (quoting Gray v. Univ. Colo. Hosp. Auth., 672 F.3d 909, 916 (10th Cir. 2012)). To

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state a prima-facie case, the plaintiff must show that his or her danger-creation claim for
due-process violations meets a six-part test: (i) the state and individual actors must have created
the danger or increased plaintiff’s vulnerability to the danger in some way; (ii) the plaintiff must
be a member of a limited and specifically definable group; (iii) the defendant’s conduct must put
the plaintiff at substantial risk of serious, immediate, and proximate harm; (iv) the risk must be
obvious and known; and (v) the defendant must have acted recklessly in conscious disregard of
that risk. See Pena v. Greffet, 922 F. Supp. 2d 1187, 1227 (D.N.M. 2013)(Browning, J.)(citing
Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1126 (10th Cir. 2008)).
In determining whether the danger-creation exception applies, the Tenth Circuit has
focused on the deliberateness of the conduct in relation to the caused harm. See Christiansen v.
City of Tulsa, 332 F.3d at 1281. The defendant must recognize the unreasonableness of the risk
of the conduct and act “with an intent to place a person unreasonably at risk.” Medina v. City &
Cnty. of Denver, 960 F.2d at 1496. The intent to place a person unreasonably at risk is present
where the defendant “is aware of a known or obvious risk” creating a high probability that
serious harm will follow, and the defendant nonetheless proceeds with a “conscious and
unreasonable disregard of the consequences.” Medina v. City & Cnty. of Denver, 960 F.2d at
1496 (citations omitted).
4.

What Shocks the Conscience.

A government actor’s official conduct intended to injure in a way that cannot reasonably
be justified by any government interest most likely shocks the conscience.

See Cnty. of

Sacramento v. Lewis, 523 U.S. 833, 849 (1998)(“[C]onduct intended to injure in some way
unjustifiable by any government interest is the sort of official action most likely to rise to the
conscience-shocking level.”). “[A] plaintiff must do more than show that the government actor

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intentionally or recklessly caused injury to the plaintiff by abusing or misusing government
power.” Camuglia v. City of Albuquerque, 448 F.3d 1214, 1222 (10th Cir. 2006)(quoting Moore
v. Guthrie, 438 F.3d 1036, 1040 (10th Cir. 2006)(internal quotation marks omitted)). “The
plaintiff must demonstrate a degree of outrageousness and a magnitude of potential or actual
harm that is truly conscience shocking.” Camuglia v. City of Albuquerque, 448 F.3d at 1222-23
(quoting Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir. 1995))(internal quotation marks omitted).
Establishing these limits advances “three basic principles highlighted by the
Supreme Court in evaluating substantive due process claims: (1) the need for
restraint in defining their scope; (2) the concern that § 1983 not replace state tort
law; and (3) the need for deference to local policymaking bodies in making
decisions impacting upon public safety.”
Camuglia v. City of Albuquerque, 448 F.3d at 1223 (quoting Uhlrig v. Harder, 64 F.3d at 574).
“Whether the conduct shocks the conscience is an objective test, based on the
circumstances, rather than a subjective test based on the government actor’s knowledge.” Pena
v. Greffet, 922 F. Supp. 2d at 1227 (citing James v. Chavez, 830 F. Supp. 2d 1208, 1276
(D.N.M. 2011)(Browning, J.)(concluding that the use of deadly force did not shock the
conscience even if the suspect did not have an intent to harm the officer, because the officer “had
sufficient facts before him to conclude that there was a threat of serious physical harm” and the
“courts must evaluate a [government actor’s] conduct objectively”), aff’d, 511 F. App’x 742
(10th Cir. 2013)).
In Martinez v. Uphoff, 265 F.3d 1130 (10th Cir. 2001), the widow of a corrections officer
sued the director, deputy director, warden, and deputy wardens of the department of corrections,
alleging that the defendants deliberately failed to ensure proper training and supervision of
penitentiary personnel, failed to provide safe and adequate staffing, and failed to take corrective
action to protect her husband, all of which resulted in him being killed during the escape of three

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inmates. See 265 F.3d at 1132. The district court found that the plaintiff failed to state a § 1983
claim for violation of the Due Process Clause under a danger-creation theory, because the
defendants’ actions were “not of such a magnitude that the Court is able to conclude they shock
the conscience.”

265 F.3d at 1134.

The Tenth Circuit agreed with the district court’s

conclusion, stating: “[U]nder the circumstances of this case, inaction in the face of known
dangers or risks is not enough to satisfy the danger-creation theory’s conscience shocking
standard.” 265 F.3d at 1135.
In Schaefer v. Las Cruces Public School District, 716 F. Supp. 2d 1052 (D.N.M.
2010)(Browning, J.), the plaintiffs alleged that the defendants -- the school district,
superintendent, principal, and vice principal of a middle school -- violated the plaintiffs’
substantive due-process rights when they did not take sufficient action to prevent a student at the
school from “racking”17 the plaintiffs’ son. 716 F. Supp. 2d at 1072-73. The Court concluded
that the defendants’ conduct did not shock the conscience. See 716 F. Supp. 2d at 1074-75. The
Court explained:
Assuming the absolute worst from the Schaefers’ alleged facts, the
Defendants were aware of three instances of an unknown eighth-grade student
racking various sixth-grade students within the span of a month, and failed to
implement policies to improve hallway monitoring and stop this conduct from
occurring in time to prevent [the plaintiffs’ son] from falling victim to the same
fate. Further, the Defendants indicated to the sixth graders that it had policies in
place to punish individuals that assaulted other students but did not, in fact, have
such policies.
While such behavior may be worthy of remedy under tort law, and
perhaps worthy of punishment in the form of punitive damages, the Court’s
conscience is not shocked . . . .

17

The parties in Schaefer v. Las Cruces Public School District defined being “racked” as
being “kicked and/or punched in the testicles.” 716 F. Supp. 2d at 1059 n.2 (citations
omitted)(internal quotation marks omitted).
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Any number of actions by the Defendants might have remedied the
problem, but the Court’s conscience is not shocked by the Defendants’ failure to
consider or implement such a policy. Even if the Defendants knew that students
frequently -- more than three times per month -- attacked other students in the
halls and declined to implement safety measures to minimize that conduct, the
Court is not convinced that it would rise to the level of shocking the conscience.
716 F. Supp. 2d at 1074-75.
LAW REGARDING PROCEDURAL DUE PROCESS
The Fourteenth Amendment states: “No State shall . . . deprive any person of life, liberty,
or property, without due process of law.” U.S. Const. amend. XIV.

The Due Process Clause

encompasses two distinct forms of protection: (i) procedural due process, which requires a state
to employ fair procedures when depriving a person of a protected interest; and (ii) substantive
due process, which guarantees that a state cannot deprive a person of a protected interest for
certain reasons. See Reid v. Paulter, No. CIV 13-0337 JB/KBM, 2013 WL 3845042, at *50
(D.N.M. July 31, 2014)(Browning, J.)(citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 84546 (1998)). “Under either form of protection, however, a person must have a protected interest
in either life, liberty, or property.” Chavez-Rodriguez v. City of Santa Fe, No. CIV 07-0633,
2008 WL 5992271, at *6 (D.N.M. Oct. 9, 2008)(Browning, J.). The Tenth Circuit prescribes a
two-step inquiry in determining whether an individual’s procedural due-process rights are
violated: (i) “Did the individual possess a protected property interest to which due process
protection was applicable?”; and (ii) “Was the individual afforded an appropriate level of
process?” Camuglia v. City of Albuquerque, 448 F.3d 1214, 1219 (10th Cir. 2006)(quoting
Clark v. City of Draper, 168 F.3d 1185, 1189 (10th Cir. 1999)(internal quotation marks
omitted)).
“The Constitution does not create or define the contours of ‘liberty’ or ‘property,’ the
‘broad and majestic terms’ enshrined in the Fourteenth Amendment.” Farthing v. City of
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Shawnee, Kan., 39 F.3d 1131, 1135 (10th Cir. 1994)(quoting Bd. of Regents of State Colls. v.
Roth, 408 U.S. 564, 571 (1972)). “To have a property interest in a benefit, a person clearly must
have more than an abstract need or desire for it. He must have more than a unilateral expectation
of it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents of State
Colls. v. Roth, 408 U.S. at 577. “Such an interest arises not from the Due Process Clause of the
Constitution itself, but is created by independent sources such as a state or federal statute, a
municipal charter or ordinance, or an implied or express contract.” Teigen v. Renfrow, 511 F.3d
1072, 1079 (10th Cir. 2007). See Paul v. Davis, 424 U.S. 693, 710 (1976)(“[Liberty and
property] interests attain . . . constitutional status by virtue of the fact that they have been initially
recognized and protected by state law.”). “Property interests, of course, are not created by the
Constitution. Rather they are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law -- rules or understandings
that secure certain benefits and that support claims of entitlement to those benefits.” Bd. of
Regents of State Colls. v. Roth, 408 U.S. at 577. See Farthing v. City of Shawnee, Kan., 39 F.3d
at 1135 (“Rather, property interests, which are the subject of the present litigation, ‘are created
and their dimensions are defined by existing rules or understandings that stem from an
independent source such as state law.’”)(quoting Bd. of Regents of State Colls. v. Roth, 408 U.S.
at 577).
“[O]nce it is determined that the Due Process Clause applies, the question remains what
process is due.”

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985)(citing

Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). “An essential principle of due process is that a
deprivation of life, liberty, or property be preceded by notice and opportunity for hearing
appropriate to the nature of the case.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542

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(citation omitted). “[D]ue process is flexible and calls for such procedural protections as the
particular situation demands.” Mathews v. Eldridge, 424 U.S. 319, 334 (1976). The Supreme
Court has explained that
the root requirement of the Due Process Clause as being that an individual be
given an opportunity for a hearing before he is deprived of any significant
property interest. This principle requires some kind of a hearing prior to the
discharge of an employee who has a constitutionally protected property interest in
his employment.
....
[T]he pretermination hearing, though necessary, need not be elaborate. We have
pointed out that [t]he formality and procedural requisites for the hearing can vary,
depending upon the importance of the interests involved and the nature of the
subsequent proceedings. In general, something less than a full evidentiary hearing
is sufficient prior to adverse administrative action.
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542, 545 (footnote, citations, and internal
quotation marks omitted).
The United States Court of Appeals for the Second Circuit has stated:
The Supreme Court . . . explained that procedural due process is a flexible
standard that can vary in different circumstances depending on “‘the private
interest that will be affected by the official action’” as compared to “the
Government’s asserted interest, ‘including the function involved’ and the burdens
the Government would face in providing greater process.” Hamdi v. Rumsfeld,
542 U.S. 507, [529] (2004)(quoting Mathews v. Eldridge, 424 U.S. at 335). A
court must carefully balance these competing concerns, analyzing “‘the risk of an
erroneous deprivation’ of the private interest if the process were reduced and the
‘probable value, if any, of additional or substitute safeguards.’” Id. (quoting
Mathews v. Eldridge, 424 U.S. at 335).
United States v. Abuhamra, 389 F.3d 309, 318 (2d Cir. 2004). The hearing required depends on:
(i) the nature of the private interest at stake; (ii) the risk of erroneous deprivation given the
procedures already guaranteed, and whether additional procedural safeguards would prove
valuable; and (iii) the government’s interest and the burdens that additional procedures might
impose. See Mathews v. Eldridge, 424 U.S. at 335. For example, “[w]here . . . the state must act
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quickly, a meaningful postdeprivation hearing is adequate.” Clark v. City of Draper, 168 F.3d at
1189. See Spielman v. Hildebrand, 873 F.2d 1377, 1385 (10th Cir. 1989)(holding that removal
of a child from parents’ custody requires predeprivation hearing “except for extraordinary
situations where some valid governmental interest is at stake that justifies postponing the hearing
until after the event”).
LAW REGARDING FOURTH AMENDMENT SEIZURES
For purposes of analyzing Fourth Amendment seizures, the Tenth Circuit has divided
interactions between police and citizens into three categories: (i) consensual encounters;
(ii) investigative stops; and (iii) arrests.

See Oliver v. Woods, 209 F.3d 1179, 1186 (10th

Cir. 2000). A consensual encounter occurs when a police officer approaches a person to ask
questions under circumstances where a reasonable person would feel free to refuse to answer and
to end the encounter. See Oliver v. Woods, 209 F.3d at 1186. For example, officers generally
may “go to a person’s home to interview him,” United States v. Daoust, 916 F.2d 757, 758 (1st
Cir. 1990), because “[i]t is not improper for a police officer to call at a particular house and seek
admission for the purpose of investigating a complaint or conducting other official business,” 1
W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.3(b), at 475 (3d ed.
1996).

Such encounters generally “are not seizures within the meaning of the Fourth

Amendment, and need not be supported by suspicion of criminal wrongdoing.” Oliver v. Woods,
209 F.3d at 1186.
1.

Investigative Detentions and Reasonable Suspicion.

An encounter that is not consensual may nevertheless be justified as an investigative
detention. See Dorato v. Smith, 108 F. Supp. 3d. 1064, 1118 (D.N.M. 2015)(Browning, J.). An
investigative detention occurs when an officer stops and briefly detains a person “in order to

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determine his identity or to maintain the status quo momentarily while obtaining more
information.” Oliver v. Woods, 209 F.3d at 1186 (quoting Adams v. Williams, 407 U.S. 143, 146
(1972)). Inasmuch as such brief investigative detentions are not consensual, they constitute a
seizure and must meet two distinct requirements to be “reasonable” under the Fourth
Amendment. Dorato v. Smith, 108 F. Supp. 3d. at 1118. First, the officer “must have a
particularized and objective basis for suspecting the particular person stopped of criminal
activity.” Oliver v. Woods, 209 F.3d at 1186 (quoting United States v. Cortez, 449 U.S. 411, 41718 (1981)). Second, the investigative detention that follows the stop must be “reasonably related
in scope to the circumstances” which justified the stop in the first place, Terry v. Ohio, 392 U.S.
1, 20 (1968), because the Fourth Amendment imposes “limitations on both the length of the
detention and the manner in which it is carried out,” United States v. Holt, 264 F.3d 1215, 1229
(10th Cir. 2001)(en banc), overruled on other grounds as recognized in United States v. Stewart,
473 F.3d 1265 (10th Cir. 2007).
“For reasonable suspicion to exist, an officer ‘need not rule out the possibility of innocent
conduct’; he or she simply must possess ‘some minimal level of objective justification’ for
making the stop.” United States v. Winder, 557 F.3d 1129, 1134 (10th Cir. 2009)(quoting United
States v. Vercher, 358 F.3d 1257, 1261 (10th Cir. 2004)). Information “falling ‘considerably
short’ of a preponderance standard” will meet the standard for reasonable suspicion. United
States v. Winder, 557 F.3d at 1134. See Illinois v. Wardlow, 528 U.S. 119, 123 (2000)(noting that
“‘reasonable suspicion’ is a less demanding standard than probable cause and requires a showing
considerably less than preponderance of the evidence”). A police-citizen encounter that goes
beyond the limits of a stop under Terry v. Ohio is an arrest, which probable cause or consent
must support to be valid. See United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir. 1993)(“An

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encounter between police and an individual which goes beyond the limits of a Terry stop,
however, may be constitutionally justified only by probable cause or consent.”).
An officer may “stop and frisk” an individual under the Fourth Amendment if a
reasonably prudent person “in the circumstances would be warranted in the belief that his safety
or that of others was in danger.” Terry v. Ohio, 392 U.S. at 27. “The officer need not be
absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in
the circumstances would be warranted in the belief that his safety or that of others was in
danger.” Terry v. Ohio, 392 U.S. at 27. A frisk “must . . . be confined in scope to an intrusion
reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault
of the police officer.”

Terry v. Ohio, 392 U.S. at 29.

In evaluating the validity of the

stop-and-frisk, the totality of the circumstances must be considered. See Florida v. Bostick, 501
U.S. 429, 436 (1991).
The Tenth Circuit has recognized the doctrine in Terry v. Ohio of an investigative
detention -- a “stop” -- and of a protective search -- a “frisk.”
Terry has come to stand for two distinct propositions -- an investigative detention
(“stop”) in which a police officer, for the purpose of investigation, may briefly
detain a person on less than probable cause, . . . and a protective search (“frisk”)
which permits an officer, in the course of an investigative detention, to conduct a
limited search for weapons for his or her own protection.
United States v. King, 990 F.2d 1552, 1557 (10th Cir. 1997)(citations omitted)). The legal
standard is whether a “stop and frisk” is reasonable under the Fourth Amendment. United States
v. King, 990 F.2d at 1557.
In United States v. Johnson, 364 F.3d 1185 (10th Cir. 2004), the Tenth Circuit held that an
officer had reasonable suspicion to continue questioning and to frisk a suspect after: (i) the
officer had responded to a call from a citizen who gave his telephone number, and gave a

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detailed and accurate description of possible criminal activity and of the suspect; (ii) the contact
occurred in Albuquerque’s highest-crime area; and (iii) the suspect displayed nervous behavior.
See 364 F.3d at 1194. The Tenth Circuit noted that the officer’s experience and training allowed
him to make inferences, based on a combination of the surrounding circumstances, that criminal
activity was afoot. See 364 F.3d at 1194 (“His suspicions were particularized to [the suspect],
and were based on how his training and experience taught him to interpret a number of
objectively reasonable details.”). While many of the factors that the Tenth Circuit considered
would not, without more, have given rise to reasonable suspicion, the combination of
circumstances was sufficient. See 364 F.3d at 1193 (noting that the district court had erred,
because “[a]ll of these factors, mitigating and aggravating, should have been analyzed as part of
the totality of the circumstances faced by [the officer] at the inception of the detention”).
In United States v. Ceballos, 355 F. App’x 226 (10th Cir. 2009)(unpublished), the police
officer observed a young girl walking down the street at night. See 355 F. App’x at 227-28. A
truck pulled up alongside the girl, the driver of the truck and the girl spoke briefly, then the truck
drove ahead, and the girl continued on her walk. See 355 F. App’x at 228. Rather than leave,
however, the truck drove ahead and parked with its lights off at a dark spot on the road by which
the girl would have to walk. See 355 F. App’x at 228. The officer spoke to the girl, who seemed
unconcerned and told him that the man in the truck had asked only if she needed a ride; she had
refused. See 355 F. App’x at 228. Not investigating any particular crime or suspected crime, and
admittedly acting on a “hunch,” the officer turned on his emergency lights and pulled up behind
the truck. 355 F. App’x at 228, 229. Upon talking to the truck’s driver, Ceballos, the officer
discovered that Ceballos’ breath smelled of alcohol, he did not have a driver’s license, and he
had a gun and other items in his vehicle. See 355 F. App’x at 227-29. The Tenth Circuit found

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that the facts available to the officer would have led a reasonable officer to conclude that
reasonable suspicion existed and that the officer’s “subjective characterization of his actions is
irrelevant.” 355 F. App’x at 229. The Tenth Circuit explained, in an opinion that the Honorable
Michael R. Murphy, United States Circuit Judge for the Tenth Circuit, wrote and Judges Briscoe
and McWilliams joined:
A review of the totality of the circumstances shows Gallegos was not acting on an
unparticularized hunch; during his testimony he articulated specific facts that
caused him to suspect Ceballos intended to assault or abduct the teenage
pedestrian. Specifically, at the time Gallegos initiated the traffic stop, he had
observed Ceballos slow his vehicle as he passed a teenage girl walking alone late
at night. He then observed Ceballos alter his route by making a U-turn and
following the girl down a narrow, nearly deserted residential street. Ceballos
pulled alongside the girl, who he did not know, and asked her if she wanted a ride.
She refused, telling him she lived up the street. Ceballos then drove further down
the road, pulled into a driveway as if to turn around and return to the main road,
but instead backed out and drove a few feet further east, in the same direction the
girl was walking. He parked in a dark location and turned off his lights.
....
We agree with the Government that Officer Gallegos had reasonable suspicion to
stop and detain Ceballos. Ceballos showed an interest in a teenage girl he did not
know, to the point that he changed his route to follow her down a dark street,
offered her a ride, and then parked where the girl would be required to walk past
him as she continued to her home. The facts found by the district court, viewed in
totality, amply support the constitutionality of the investigative detention.
355 F. App’x at 229. The Tenth Circuit did not require the officer to identify the particular crime
of which the officer had reasonable suspicion or even to acknowledge having reasonable
suspicion. See 355 F. App’x at 229. The Tenth Circuit was content to find that a reasonable
officer would have reasonable suspicion that “Ceballos intended to assault or abduct the teenage
pedestrian.” 355 F. App’x at 229. The Tenth Circuit demanded only that an officer have facts
from which a reasonable officer could form a reasonable suspicion that criminal conduct was
occurring or was about to occur. See 355 F. App’x at 229.

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In United States v. Aragones, 483 F. App’x 415 (10th Cir. 2012)(unpublished), the Tenth
Circuit found reasonable suspicion based upon an officer’s knowledge of the defendant’s
(1) gang tattoo; (2) presence in a high crime area; (3) abrupt move away from the
officer as soon as [the defendant] saw [the officer]; (4) glancing about in a manner
consistent with an attempt to find a route to flee; and, (5) approach to [a private]
home’s back door without conversing with the residents visible inside.
483 F. App’x at 417. At the district court level, in ruling on the motion to suppress, the
Honorable Martha A. Vazquez, United States District Court Judge for the District of New
Mexico, had concluded that, because the defendant’s conduct in standing outside a private
residence and looking in “was consistent with the most benign of conduct, including a visit to a
friend’s house or calling upon a neighbor for assistance,” the officer did not have reasonable
suspicion at the time of the stop and should have waited longer to rule out innocent conduct. 483
F. App’x at 418 (quoting District Court Opinion at 19). The Tenth Circuit disagreed, however,
stating: “The problem is that conduct giving rise to reasonable suspicion sufficient to support an
investigative detention can be -- and often is -- consistent with innocent behavior.” 483 F. App’x
at 418. The Tenth Circuit noted that, moreover, the defendant’s conduct was not necessarily
innocent, because an Albuquerque public ordinance prohibits “[e]ntering upon any private
property and looking into any occupied dwelling without the consent of the occupant or owner of
the dwelling.” 483 F. App’x at 417 (quoting Albuquerque Ord. § 12-2-21(B)). The Tenth
Circuit, thus, reversed Judge Vazquez’ decision, disagreeing with her conclusion that the officer
lacked reasonable suspicion of unlawful activity, and concluded that “a reasonable officer could
have suspected that [the defendant] wasn’t a welcome guest and did not have consent to look into
the home.” 483 F. App’x at 417.

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2.

Arrests.

A seizure that exceeds the investigative detention’s limited scope or duration may
nevertheless be justified as an arrest. An arrest is a seizure that is “characterized by highly
intrusive or lengthy search or detention.” Oliver v. Woods, 209 F.3d at 1186 (quoting United
States v. Cooper, 733 F.2d 1360, 1363 (10th Cir. 1984)). The general rule is that “the use of
firearms, handcuffs, and other forceful techniques” is sufficiently intrusive to signal that a person
has been placed under arrest. United States v. Melendez-Garcia, 28 F.3d 1046, 1052-53 (10th
Cir. 1994). See Florida v. Royer, 460 U.S. 491, 499 (1983). The use of handcuffs, however,
does not always elevate a detention into an arrest. See United States v. Albert, 579 F.3d 1188,
1195 (10th Cir. 2009)(“[W]e have approved the use of handcuffs in the context of a Terry stop.”);
United States v. Reyes-Vencomo, 866 F. Supp. 2d 1304, 1330 (D.N.M. 2012)(Browning J.)(“The
use of handcuffs . . . does not always elevate a detention into an arrest.”); Pierre-Louis v. Schake,
No. CIV 12-0527 JB/RHS, 2014 WL 1954783, at *44-49 (D.N.M. Apr. 30, 2014)
(Browning, J.)(concluding that the defendant police officer acted reasonably in handcuffing the
plaintiff, whom he suspected had recently assaulted a person on the side of the road by
threatening him with a gun). “Inasmuch as an arrest exceeds an investigative stop’s limited
scope or duration, it must be supported by probable cause.” United States v. Rodriguez, 836
F. Supp. 2d 1258, 1288 (D.N.M. 2011)(Browning, J.). See Wilson v. Jara, 866 F. Supp. 2d 1270,
1292 (D.N.M. 2011)(Browning, J.)(“Probable cause must support an arrest, ‘characterized by
highly intrusive or lengthy search or detention.’” )(quoting Oliver v. Woods, 209 F.3d at 1185),
aff’d, 512 F. App’x 841 (10th Cir. 2013).
“Probable cause to arrest exists only when the ‘facts and circumstances within the
officers’ knowledge, and of which they have reasonably trustworthy information, are sufficient in

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themselves to warrant a man of reasonable caution in the belief that an offense has been or is
being committed.’” United States v. Valenzuela, 365 F.3d 892, 896-97 (10th Cir. 2004)(quoting
United States v. Edwards, 242 F.3d 928, 934 (10th Cir. 2001))(citing Draper v. United States, 358
U.S. 307, 313 (1959)). Although “[p]robable cause does not require facts sufficient for a finding
of guilt . . . , it does require more than mere suspicion.” United States v. Morris, 247 F.3d 1080,
1088 (10th Cir. 2001)(internal quotation marks omitted). The Supreme Court has made the
following distinction between reasonable suspicion, which is sufficient for an investigatory stop
under Terry v. Ohio, and probable cause, which is required before an arrest can be made:
Reasonable suspicion is a less demanding standard than probable cause not only in the
sense that reasonable suspicion can be established with information that is different in
quantity or content than that required to establish probable cause, but also in the sense
that reasonable suspicion can arise from information that is less reliable than that required
to show probable cause.
Alabama v. White, 496 U.S. 325, 330 (1990).
Probable cause is measured against an objective standard. See Beck v. Ohio, 379 U.S.
89, 96 (1964). “The subjective belief of an individual officer as to whether there was probable
cause for making an arrest is not dispositive.” United States v. Valenzuela, 365 F.3d at 896-97
(citing Florida v. Royer, 460 U.S. 491, 507 (1983); United States. v. Treto-Haro, 287 F.3d 1000,
1006 (10th Cir. 2002)). Thus, the primary consideration is “whether a reasonable officer would
have believed that probable cause existed to arrest the defendant based on the information
possessed by the arresting officer.” Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th
Cir. 2002)(alterations and internal quotation marks omitted).
3.

When a Detention Becomes an Arrest.

The Tenth Circuit has held that a police-citizen encounter which goes beyond an
investigative stop’s limits is an arrest that probable cause or consent must support to be valid.

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See United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir. 1993)(“An encounter between police
and an individual which goes beyond the limits of a Terry stop, however, may be constitutionally
justified only by probable cause or consent.”). “Terry stops must be limited in scope to the
justification for the stop . . . [and] the intrusiveness of a search or seizure will be upheld if it was
reasonable under the totality of the circumstances.” United States v. Perdue, 8 F.3d at 1462.
“The government has the burden of demonstrating ‘that the seizure it seeks to justify on the basis
of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions
of an investigative seizure.’” United States v. Perdue, 8 F.3d at 1462 (quoting Florida v. Royer,
460 U.S. 491, 500 (1983)).
This Court has also engaged in the balancing act of deciding when a detention becomes
an arrest. In United States v. Perea, 374 F. Supp. 2d 961 (D.N.M. 2005)(Browning, J.), aff’d sub
nom, United States v. Burciaga-Burciaga, 147 F. App’x 725 (10th Cir. 2005)(unpublished), the
Court had to determine whether the police involved transformed the investigative detention into
an arrest by drawing their weapons on the suspect, handcuffing him, and placing him in the back
of a police car. See United States v. Perea, 374 F. Supp. 2d at 976. In that case, the Court
determined that such measures were appropriate and did not elevate the investigative detention to
the level of an arrest. See 374 F. Supp. 2d at 976. The Court recognized that, “[i]n ‘most
scenarios,’ when officers effectuate what would otherwise be considered a Terry stop by pointing
guns at a suspect, that stop is elevated to an arrest, which requires probable cause.” 374 F. Supp.
2d at 974. See United States v. Burciaga-Burciaga, 147 F. App’x at 730 (affirming the Court’s
determination in United States v. Perea that the officers had reasonable suspicion to believe that
the suspect might be armed and dangerous, justifying the officers’ use of firearms and not
transforming the vehicle stop into a formal arrest requiring probable cause); United States v.

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Gama-Bastidas, 142 F.3d 1233, 1240 (10th Cir. 1998)(“[T]he use of firearms, handcuffs, and
other forceful techniques are justified only by probable cause or when ‘the circumstances
reasonably warrant such measures.’”).
There “exist[s], however, a limited set of circumstances in which officers may draw their
guns at a suspect without transforming the stop into an arrest. ‘The use of guns in connection
with a stop is permissible where the police reasonably believe the weapons are necessary for
their protection.’” United States v. Perea, 374 F. Supp. 2d at 974. See United States v. Merkley,
988 F.2d 1062, 1064 (10th Cir. 1993)(upholding reasonableness of stop when officers detained
the defendant at gunpoint and placed him in handcuffs where suspect had threatened to kill
someone and was pounding interior of truck with his fists); United States v. Lechuga, 925 F.2d
1035, 1040 (7th Cir. 1991)(holding that the officer’s “drawing his gun but keeping it pointed to
the street” was not “unreasonably intrusive”); United States v. Alexander, 907 F.2d 269, 272-73
(2d Cir. 1990)(holding that the law enforcement officers did not convert the stop into an arrest by
“unholstering their guns and frisking” the defendant when they suspected that the defendant had
“just completed a narcotics purchase,” there were a number of “innocent bystanders on the
crowded city street,” and stopping a vehicle “is especially hazardous and supports the need for
added safeguards”). Similarly, there are circumstances in which a seizure is not an arrest merely
because the subject of the detention is placed in handcuffs. See United States v. Merkley, 988
F.2d at 1064; United States v. Miller, 974 F.2d 953, 957 (8th Cir. 1992)(“Numerous cases have
held that a police officer’s use of handcuffs can be a reasonable precaution during a Terry stop.”);
United States v. Hastamorir, 881 F.2d 1551, 1557 (11th Cir. 1989)(“The handcuffing of
Hastamorir constituted a Terry stop, and was a reasonable action designed to provide for the
safety of the agents.”). United States v. Perea was one of those unique cases, because the police

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had reasonable cause to believe that the person whom they were detaining was the suspect whom
they sought to arrest -- a man wanted for murder whom, it was believed, might be armed and
dangerous. See 374 F. Supp. 2d at 976. The Tenth Circuit affirmed the Court’s determination
that the stop was not an arrest:
The officers’ conduct during the felony stop was appropriate in relation to the
perceived threat. The measures taken during a Terry stop must be reasonably
related in scope to the circumstances which justified the interference in the first
place and may not go beyond what is necessary for officer safety. The felony stop
was justified by suspicion that someone in the Escalade might have a gun, or at
least was dangerous. The officers displayed their weapons only as long as
necessary to ensure that the vehicle and its occupants posed no threat. The
officers put their guns away as soon as they handcuffed Mr. Burciaga, placed him
in the back of a police car, and confirmed that no one else was in the car.
United States v. Burciaga-Burciaga, 147 F. App’x at 730 (citations and internal quotation marks
omitted).
4.

Officers Have a Duty to Investigate Easily Accessible Evidence Before
Making an Arrest.

“[T]he Fourth Amendment requires officers to reasonably interview witnesses readily
available at the scene, investigate basic evidence, or otherwise inquire if a crime has been
committed at all before invoking the power of warrantless arrest and detention.” Romero v. Fay,
45 F.3d 1472, 1476-77 (10th Cir. 1995). Police officers “may not ignore easily accessible
evidence and thereby delegate their duty to investigate [to others].” Baptiste v. J.C. Penney Co.,
147 F.3d 1252, 1259 (10th Cir. 1998). However, “[o]nce probable cause is established, an officer
is not required to continue to investigate for exculpatory evidence before arresting a suspect.”
Garcia v. Casuas, 2011 WL 7444745, at *49 (citing Cortez v. McCauley, 478 F.3d 1108, 1121
n.18 (10th Cir. 2007)(en banc)).
The Tenth Circuit confronted the issue when an officer must conduct further investigation
before arresting an individual in Romero v. Fay.
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In that case, law enforcement officers

interviewed two individuals -- Stella Gutierrez and Manuel Duran -- who implicated the plaintiff
in a murder. See 45 F.3d at 1474. Approximately four hours later, without conducting additional
investigation or obtaining a warrant, an officer arrested the plaintiff for murder. See 45 F.3d
at 1474. After he was taken into custody, the plaintiff told the officer that he was innocent and
that he had an alibi. See 45 F.3d at 1474. The plaintiff stated that three individuals would
establish that he was asleep at home when the murder occurred. See 45 F.3d at 1474. The
officer refused the plaintiff’s offer of names of alibi witnesses and said that the witnesses “were
of little significance because they would lie to protect” the plaintiff. 45 F.3d at 1474. The officer
never interviewed the alibi witnesses. See 45 F.3d at 1474. The plaintiff was incarcerated for
three months before the government dismissed the case and he was released. See 45 F.3d at
1474.
The plaintiff brought a § 1983 action for, among other things, violations of his Fourth
Amendment rights. See Romero v. Fay, 45 F.3d at 1474. The plaintiff argued that, regardless
whether the officers’ interviews of Gutierrez and Duran established probable cause, under clearly
established law, a reasonable officer would have investigated his alibi witnesses before arresting
him. See 45 F.3d at 1476. The Tenth Circuit disagreed, in an opinion that the Honorable Bobby
R. Baldock, United States Circuit Judge for the Tenth Circuit, authored, and Judges Tacha and
McKay joined. See 45 F.3d at 1476. The Tenth Circuit stated that the Fourth Amendment
requires officers to only “reasonably interview witnesses readily available at the scene,
investigate basic evidence, or otherwise inquire if a crime has been committed at all before
invoking the power of warrantless detention.” 45 F.3d at 1476-77. The Tenth Circuit determined
that,
[o]nce [the defendant] concluded based on the facts and information known to
him that probable cause existed to arrest Plaintiff for the murder of David
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Douglas, his failure to question Plaintiff’s alibi witnesses prior to the arrest did
not negate probable cause. Thus, [the defendant’s] failure to investigate
Plaintiff’s alibi witnesses prior to arrest did not constitute a constitutional
violation.
45 F.3d at 1478.
In Baptiste v. J.C. Penney Co., officers arrested the plaintiff for shoplifting after:
(i) receiving reports from store security guards that they witnessed her shoplifting on store
surveillance; and (ii) watching a video of the surveillance footage on which the security officers
relied in reaching their conclusion -- which supported the plaintiff’s story that she had not stolen
anything. See 147 F.3d at 1254-55. The Tenth Circuit, in an opinion that the Honorable
Michael R. Murphy, United States Circuit Judge for the Tenth Circuit, authored, and Judges
Anderson and Logan joined, concluded that qualified immunity did not apply. See 147 F.3d
at 1257-59. The Tenth Circuit asserted that the security guards’ allegations were based solely on
the plaintiff’s conduct, “which was memorialized in its entirety on the videotape.” 147 F.3d
at 1257. The Tenth Circuit stated that the police officers “viewed the very same conduct on the
videotape, which this court has concluded failed to establish probable cause.” 147 F.3d at 1257.
The Tenth Circuit held that, consequently, “it was . . . not reasonable for the officers to rely on
the security guards’ allegations.” 147 F.3d at 1257. The Tenth Circuit added that
police officers may not ignore easily accessible evidence and thereby delegate
their duty to investigate and make an independent probable cause determination
based on that investigation. . . . Here, [the defendants] did conduct some
investigation by viewing the videotape and questioning [the plaintiff]. They
argue, however, that they should be allowed to rely on the statement of the guards
for probable cause to arrest. Because the officers knew that the allegations of the
guards were based on observations of conduct captured and preserved on an
available videotape, to credit this argument would allow a wholesale delegation of
police officers’ duty to investigate and make an independent probable cause
determination.
Baptiste v. J.C. Penney Co., 147 F.3d at 1259.

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In Cortez v. McCauley, officers responded to a call from a nurse stating that a woman had
brought her two-year-old daughter to the hospital asserting that the child had complained that her
babysitter’s boyfriend had molested her.

See 478 F.3d at 1113 (internal quotation marks

omitted). Without (i) interviewing the girl, her mother, the nurse, or the attending physician;
(ii) inspecting the girl’s clothing for signs of sexual assault; or (iii) waiting for the results of the
child’s medical examination, the officers arrested the boyfriend. See 478 F.3d at 1113. The
Tenth Circuit, in an en banc opinion that Judge Kelly authored, explained that,
whether we view it as a need for more pre-arrest investigation because of
insufficient information, . . . or inadequate corroboration, what the officers had
fell short of reasonably trustworthy information indicating that a crime had been
committed by [the defendant]. See BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir.
1986)(“A police officer may not close her or his eyes to facts that would help
clarify the circumstances of an arrest. Reasonable avenues of investigation must
be pursued especially when, as here, it is unclear whether a crime had even taken
place.”). Based on the facts above, [the defendant] was arrested without probable
cause.
478 F.3d at 1116 (footnotes and citations omitted). The Tenth Circuit further held that
it was established law that “the probable cause standard of the Fourth Amendment
requires officers to reasonably interview witnesses readily available at the scene,
investigate basic evidence, or otherwise inquire if a crime has been committed at
all before invoking the power of warrantless arrest and detention.” Romero, 45
F.3d at 1476-77 (footnote omitted); see also Baptiste v. J.C. Penney, Co., 147
F.3d . . . 1259 . . . (“[P]olice officers may not ignore easily accessible evidence
and thereby delegate their duty to investigate and make an independent probable
cause determination based on that investigation.”). In the present case, witnesses
were readily available for interviews, physical evidence was available, and a
medical diagnosis was forthcoming. Defendants, however, . . . conducted no
investigation. Instead, the Defendants relied on the flimsiest of information
conveyed by a telephone call.
Cortez v. McCauley, 478 F.3d at 1117-18 (footnotes and citations omitted). The Tenth Circuit
concluded, therefore, that qualified immunity did not apply. See 478 F.3d at 1118-22.
In Garcia v. Casuas, a detective with the City of Rio Rancho, New Mexico -- Monica
Casuas -- arrested the plaintiff, Mitchell Garcia, for sexual penetration of a minor. See 2011 WL
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7444745, at *8. The plaintiff was ultimately exonerated, and subsequently filed a § 1983 claim
against the arresting officer and the City of Rio Rancho for, among other things, unlawfully
arresting him in violation of his Fourth Amendment rights. See 2011 WL 7444745, at *12. The
Court found that the officer had probable cause to arrest the plaintiff based on information
gleaned from other officers’ interviews of the plaintiff, the victim -- K.J., the victim’s mother -Audrey Odom, and a witness at the scene on the night of the incident -- Jennifer Katz. See 2011
WL 7444745, at *43-46. Garcia argued that, by failing to re-interview Odom and Katz, and
instead choosing to rely on the other officers’ interviews of them, Casuas “fail[ed] to interview
readily accessible witnesses.” 2011 WL 7444745, at *15. Garcia contended that, moreover,
Casuas should have known that failing to personally interview him, Odom, Katz, K.J., and Katz’
neighbors before arresting him violated his constitutional rights. See 2011 WL 7444745, at *15.
Garcia argued that, had Casuas interviewed him before arresting him, she would have discovered
Katz’ and Odom’s motivations to lie. See 2011 WL 7444745, at *15.
Finding that the defendant’s failure to conduct further investigation before arresting the
plaintiff did not constitute a Fourth Amendment violation, the Court explained:
Although Garcia cites Romero v. Fay and cases from several other circuits
for the general proposition that officers must interview witnesses at the scene,
Garcia points to no case law which would establish that, after the officers at the
scene have interviewed witnesses, the Constitution requires the investigating
detective to interview those witnesses again. . . . Here, the responding police
officers . . . interviewed every adult alleged to be involved in the incident and
briefly spoke with K.J. . . .
Garcia also states that, if Casuas had investigated further, she would have
known that there was no semen on the bedding, and she would have discovered
Katz’ and Odom’s motivation if she spoke to him. . . . The Tenth Circuit’s
discussion of probable cause in Romero v. Fay also undercuts Garcia’s assertion
that Casuas was required to do more after [K.J.’s interview] solidified the
existence of probable cause. In Romero v. Fay, the Tenth Circuit held:

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Plaintiff contends that regardless of whether the statements by Duran and
Guiterrez supplied probable cause for Defendant Fay to arrest Plaintiff,
under clearly established law a reasonable police officer would have
investigated his alibi witnesses before arresting him, and the exculpatory
information possessed by them would have negated the probable cause to
arrest. We disagree.
45 F.3d at 1466. In Baptiste v. J.C. Penney Co., the Tenth Circuit also recognized
that “officers are not required to conduct full investigations before making an
arrest.” 147 F.3d at 1257 n.8.
....
These cases establish that Casuas was not required to speak to [Katz’
neighbors], because they did not appear to be material witnesses. Garcia has
made no allegations and presented no facts suggesting that the neighbors were
ever around K.J. Garcia has also not presented any facts demonstrating that [the
neighbors] have shed light on the motivations of Katz or Odom. Garcia only
speculates that Casuas might have found something. An officer is not required to
exhaust every possible lead to satisfy the Fourth Amendment. In Romero v. Fay,
the Tenth Circuit held:
Once Defendant Fay concluded based on the facts and information known
to him that probable cause existed to arrest Plaintiff for the murder of
David Douglas, his failure to question Plaintiff’s alibi witnesses prior to
the arrest did not negate probable cause. Thus, Defendant Fay’s failure to
investigation Plaintiff’s alibi witnesses prior to arrest did not constitute a
constitutional violation.
45 F.3d at 1478.
....
Furthermore, Garcia’s other statements belie the fact that, if Casuas had
interviewed him before his arrest, he would have explained that Katz and Odom
were biased or trying to frame him. When [another officer] interviewed Garcia on
the night of the incident, he asked Garcia whether Katz and Odom had a reason to
beat him up, and informed him that he was being accused of choking K.J. . . .
Garcia responded that Katz and Odom had no reason to beat him up, and denied
hurting K.J., never mentioning that Katz and Odom might have beat him up or
encouraged K.J. to accuse him because they were romantically interested in
him. . . . . During his interrogation after his arrest, Garcia never mentioned that
Katz and Odom might have improper motives. The cases that Garcia cites
establish only that the police may not ignore available material witnesses. Here,
Thacker spoke with Garcia; Garcia denied doing wrong and never related that he
may have been framed. Garcia presents no cases, and the Court could find none,
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suggesting that Casuas was required to repeat the steps other officers had already
taken and re-interview all witnesses. . . . Finally, waiting for the laboratory
results would not have substantially altered the probable-cause determination,
because, while the New Mexico Department of Public Safety Forensic Laboratory
found no semen, it does not have the capabilities to detect the presence of urine in
or on a substance . . . .
Once probable cause is established, an officer is not required to continue
to investigate for exculpatory evidence before arresting a suspect. See Cortez v.
McCauley, 478 F.3d at 1121 n.18 (citing Baker v. McCollan, 443 U.S. 137,
145-46 (1979)). The Court has already determined that Casuas had probable
cause to arrest Garcia and that there was a substantial basis for the issuance of the
arrest warrant after the safe-house interview. Casuas was not required to
investigate further after that determination.
Garcia v. Casuas, 2011 WL 7444745, at *47-49.
5.

Traffic Stops.

“‘A traffic stop is a ‘seizure’ within the meaning of the Fourth Amendment . . . .’”
United States v. Holt, 264 F.3d at 1220. “For the duration of a traffic stop, . . . a police officer
effectively seizes everyone in the vehicle, the driver and all passengers.” United States v. White,
584 F.3d 935, 945 (10th Cir. 2009)(quoting Arizona v. Johnson, 555 U.S. 323, 327 (2009)).
“This seizure implicates a passenger’s Fourth Amendment interests to the same degree as the
driver’s.” United States v. Wilson, 96 F. App’x 640, 643 (10th Cir. 2004)(unpublished)(citing
United States v. Erwin, 875 F.2d 268, 270 (10th Cir. 1989)). “Therefore, both the driver and
passenger have standing to challenge the constitutionality of the initial stop.” United States v.
White, 584 F.3d at 945.

Passengers may challenge their detention during traffic stops. See

United States v. Wilson, 96 F. App’x at 643 (“Wilson does not assert any such interest in the
truck or its contents[;] [n]evertheless, Wilson may, as he does here, ‘contest the lawfulness of his
own detention and seek to suppress evidence found in the vehicle as the fruit of the illegal
detention.’”)(quoting United States v. Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir. 2000), and
citing United States v. Gama-Bastidas, 142 F.3d 1233, 1239 (10th Cir. 1998); United States v.
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Shareef, 100 F.3d at 1500). The Tenth Circuit “reject[s] any notion that a vehicular stop detains
for Fourth Amendment purposes only the driver simply because the passenger may be free to
depart.” United States v. Erwin, 875 F.2d at 270.
“[B]ecause ‘the ultimate touchstone of the Fourth Amendment is reasonableness,’”
Kentucky v. King, 131 S. Ct. 1849, 1856 (2011)(quoting Brigham City v. Stuart, 547 U.S. 398,
403 (2006)), courts
assess the reasonableness of a routine traffic stop under the principles laid out for
investigative detentions in Terry v. Ohio, 392 U.S. 1 (1968), considering “whether the
officer’s action was justified at its inception, and whether it was reasonably related in
scope to the circumstances which justified the interference in the first place.”
United States v. Wilson, 96 F. App’x at 643 (quoting United States v. Holt, 264 F.3d at 1220
(quoting Terry v. Ohio, 392 U.S. at 20)). “A traffic stop is justified at its inception if an officer
has . . . reasonable articulable suspicion that a particular motorist has violated any of the traffic . .
. regulations of the jurisdiction.” United States v. Winder, 557 F.3d 1129, 1134 (10th Cir. 2009).
“[A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic
violation . . . .” United States v. Williams, 403 F.3d 1203, 1206 (10th Cir. 2005)(citation and
internal quotation marks omitted).
The Terry v. Ohio framework applies whether the traffic stop is based on probable cause
or reasonable suspicion.18 See United States v. Holt, 264 F.3d at 1230. A court must examine

18

The Tenth Circuit in United States v. King, 990 F.2d 1552 (10th Cir. 1997), noted:
“Terry was the first case to recognize that ‘the Fourth Amendment governs ‘seizures’ of the
person . . . [other than] arrests’ and created a ‘narrowly drawn’ exception to the probable cause
requirement for lesser government intrusions into an individual’s liberty.” 990 F.2d at 1557
(internal citations omitted)(quoting Terry v. Ohio, 392 U.S. at 16, 27). Thus, Terry v. Ohio
has come to stand for two distinct propositions -- an investigative detention
(“stop”) in which a police officer, for the purpose of investigation, may briefly
detain a person on less than probable cause, and a protective search (“frisk”)
which permits an officer, in the course of an investigative detention, to conduct a
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“both the length of the detention and the manner in which it is carried out,” United States v. Holt,
264 F.3d at 1230, “keeping in mind that an officer may extend the duration and scope of the
initial detention based on ‘an objectively reasonable and articulable suspicion that illegal activity
has occurred or is occurring,’” United States v. Wilson, 96 F. App’x at 643 (quoting United
States v. Caro, 248 F.3d 1240, 1244 (10th Cir. 2001)). “When the stop is extended based on
reasonable suspicion, the further detention must, like the original traffic stop, ‘be temporary,
lasting no longer than necessary to effectuate the purpose of the [further detention], and the
scope of the [further] detention must be carefully tailored to its underlying justification.’”
United States v. Wilson, 96 F. App’x at 644 (quoting United States v. Wood, 106 F.3d 942, 945
(10th Cir. 1997)).
“A traffic stop is justified at its inception if an officer has . . . reasonable articulable
suspicion that a particular motorist has violated any of the traffic . . . regulations of the
jurisdiction.” United States v. Winder, 557 F.3d 1129, 1134 (10th Cir. 2009). “[A] traffic stop is
valid under the Fourth Amendment if the stop is based on an observed traffic violation . . . .”
United States v. Williams, 403 F.3d 1203, 1206 (10th Cir. 2005)(citation and internal quotation
marks omitted).
LAW REGARDING QUALIFIED IMMUNITY
Qualified immunity recognizes the “need to protect officials who are required to exercise
their discretion and the related public interest in encouraging the vigorous exercise of official
authority.” Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). “Qualified immunity protects

limited search for weapons for his or her own protection.
United States v. King, 990 F.2d at 1557 (internal citations omitted)(citing United States v.
Sokolow, 490 U.S. at 7; Adams v. Williams, 407 U.S. 143, 147-48 (1972)).
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federal and state officials from liability for discretionary functions, and from ‘the unwarranted
demands customarily imposed upon those defending a long drawn-out lawsuit.’” Roybal v. City
of Albuquerque, No. CIV 08-0181 JB/LFG, 2009 WL 1329834, at *10 (D.N.M. Apr. 28,
2009)(Browning, J.)(quoting Siegert v. Gilley, 500 U.S. 226, 232 (1991)). The Supreme Court
deems it “untenable to draw a distinction for purposes of immunity law between suits brought
against state officials under § 1983 and suits brought directly under the Constitution against
federal officials.” Butz v. Economou, 438 U.S. 478, 504 (1978). “The qualified immunity
analysis is the same whether the claims are brought under Bivens or pursuant to the post-Civil
War Civil Rights Acts.” Breidenbach v. Bolish, 126 F.3d 1288, 1291 (10th Cir. 1997), overruled
on other grounds as recognized in Currier v. Doran, 242 F.3d 905 (10th Cir. 2001).
Under § 1983 (invoked in this case) and Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388 . . . (1971), a plaintiff may seek money damages from
government officials who have violated her constitutional or statutory rights. But
to ensure that fear of liability will not “unduly inhibit officials in the discharge of
their duties,” Anderson v. Creighton, 483 U.S. 635, 638 . . . (1987), the officials
may claim qualified immunity; so long as they have not violated a “clearly
established” right, they are shielded from personal liability, Harlow v. Fitzgerald,
457 U.S. 800, 818 . . . (1982). That means a court can often avoid ruling on the
plaintiff’s claim that a particular right exists. If prior case law has not clearly
settled the right, and so given officials fair notice of it, the court can simply
dismiss the claim for money damages. The court need never decide whether the
plaintiff’s claim, even though novel or otherwise unsettled, in fact has merit.
Camreta v. Greene, 563 U.S. 692, 705 (2011).
Issues of qualified immunity are best resolved at the “earliest possible stage in litigation.”
Pearson v. Callahan, 555 U.S. 223, 232 (2009)(quoting Hunter v. Bryant, 502 U.S. 224, 227
(1991)(per curiam)). “If qualified immunity is to mean anything, it must mean that public
employees who are just doing their jobs are generally immune from suit.” Lewis v. Tripp, 604
F.3d 1221, 1230 (10th Cir. 2010).
Qualified immunity shields government officials from liability where “their conduct does
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not violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” Pearson v. Callahan, 555 U.S. at 231 (quoting Harlow v. Fitzgerald, 457
U.S. at 818). Qualified immunity also shields officers who have “reasonable, but mistaken
beliefs,” and operates to protect officers from the sometimes “hazy border[s]” of the law.
Saucier v. Katz, 533 U.S. 194, 205 (2001). When a defendant asserts qualified immunity, the
plaintiff must demonstrate: (i) that the defendant’s actions violated his or her constitutional or
statutory rights; and (ii) that the right was clearly established at the time of the alleged
misconduct. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009).
1.

Procedural Approach to Qualified Immunity.

The Supreme Court recently revisited the proper procedure for lower courts to evaluate a
qualified immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts
“should be permitted to exercise their sound discretion in deciding which of the two prongs of
the qualified immunity analysis should be addressed first in light of the circumstances of the
particular case at hand.” 555 U.S. at 236. The Supreme Court also noted that, while no longer
mandatory, the protocol that Saucier v. Katz outlined -- by which a court first decides if the
defendant’s actions violated the Constitution, and then the court determines if the right violated
was clearly established -- will often be beneficial. See Pearson v. Callahan, 555 U.S. at 241. In
rejecting the prior mandatory approach, the Supreme Court recognized that “[t]here are cases in
which it is plain that a constitutional right is not clearly established but far from obvious whether
in fact there is such a right,” and that such an approach burdens district court and courts of
appeals with “what may seem to be an essentially academic exercise.” 555 U.S. at 237. The
Supreme Court also recognized that the prior mandatory approach “departs from the general rule
of constitutional avoidance and runs counter to the older, wiser judicial counsel not to pass on

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questions of constitutionality unless such adjudication is unavoidable.”

555 U.S. at 241

(alterations omitted)(internal quotation marks omitted). See Reichle v. Howards, 132 S. Ct.
2088, 2093 (2012)(affirming Pearson v. Callahan’s procedure and noting that deciding qualified
immunity issues on the basis of a right being not “clearly established” by prior case law
“comports with our usual reluctance to decide constitutional questions unnecessarily”). Once the
plaintiff establishes an inference that the defendant’s conduct violated a clearly established
constitutional right, a qualified immunity defense generally fails. See Cannon v. City & Cty. of
Denver, 998 F.2d 867, 870-71 (10th Cir. 1993).
The Supreme Court recognizes seven circumstances where district courts should proceed
directly to and “should address only” the clearly established prong of the qualified immunity
analysis: when (i) the first, constitutional violation question “is so factbound that the decision
provides little guidance for future cases”; (ii) “it appears that the question will soon be decided
by a higher court”; (iii) deciding the constitutional question requires “an uncertain interpretation
of state law”; (iv) “qualified immunity is asserted at the pleading stage,” and “the precise factual
basis for the . . . claim . . . may be hard to identify”; (v) tackling the first element “may create a
risk of bad decisionmaking,” because of inadequate briefing; (vi) discussing both elements risks
“bad decisionmaking,” because the court is firmly convinced the law is not clearly established
and is thus inclined to give little thought to the existence of the constitutional right; or (vii) the
doctrine of “constitutional avoidance” suggests the wisdom of passing on the first constitutional
question when “it is plain that a constitutional right is not clearly established but far from
obvious whether in fact there is such a right.” Kerns v. Bader, 663 F.3d 1173, 1180-81 (10th Cir.
2011)(quoting Pearson v. Callahan, 555 U.S. at 236-42). Regarding the last of these seven
circumstances, the Supreme Court has clarified that courts may “avoid avoidance” and address

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the first prong before the second prong in cases involving a recurring fact pattern, where
guidance on the constitutionality of the challenged conduct is necessary, and the conduct is likely
only to face challenges in the qualified immunity context. Camreta v. Greene, 563 U.S. at 706707. See Kerns v. Bader, 663 F.3d at 1181.19 “Courts should think carefully before expending

19

In Kerns v. Bader, the Tenth Circuit reversed the Court’s decision that an officer was
not entitled to qualified immunity, noting that the Court “analyzed both aspects of the qualified
immunity test before agreeing” with the plaintiff that the qualified immunity defense did not
protect the officer. 663 F.3d at 1183. In reversing, the Tenth Circuit stated:
Because we agree with Sheriff White on the latter (clearly established law)
question, we reverse without addressing the former (constitutional violation)
question. And we pursue this course because doing so allows us to avoid
rendering a decision on important and contentious questions of constitutional law
with the attendant needless (entirely avoidable) risk of reaching an improvident
decision on these vital questions.
663 F.3d at 1183-84. The Tenth Circuit did not analyze whether the officer violated the
plaintiff’s constitutional rights and stated that guidance on the particular constitutional issue
would be more appropriate in a case not involving qualified immunity: “Neither do we doubt that
the scope of the Constitution’s protection for a patient’s hospital records can be adequately
decided in future cases where the qualified immunity overlay isn’t in play (e.g., through motions
to suppress wrongly seized records or claims for injunctive or declaratory relief).” 663 F.3d at
1187 n.5. On remand, the Court stated:
While the Court must faithfully follow the Tenth Circuit’s decisions and opinions,
the Court is troubled by this statement and the recent trend of the Supreme
Court’s hesitancy in § 1983 actions to address constitutional violations. A
Reconstruction Congress, after the Civil War, passed § 1983 to provide a civil
remedy for constitutional violations. See Mitchum v. Foster, 407 U.S. 225, 23839 (1972). In Mitchum v. Foster, the Supreme Court explained:
Section 1983 was originally § 1 of the Civil Rights Act of 1871 . . .
and was enacted for the express purpose of “enforc(ing) the
Provisions of the Fourteenth Amendment.” . . . The predecessor of
§ 1983 was thus an important part of the basic alteration in our
federal system wrought in the Reconstruction era through federal
legislation and constitutional amendment.
407 U.S. at 238-39. Congress did not say it would remedy only violations of
“clearly established” law, but that

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[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought against a
judicial officer for an act or omission taken in such officer’s
judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was
unavailable.
42 U.S.C. § 1983 (emphasis added). The Supreme Court established the qualified
immunity defense in Pierson v. Ray, 386 U.S. 547 (1967), and held that officials
were not liable for constitutional violations where they reasonably believed that
their conduct was constitutional. See E. Clarke, Safford Unified Sch. Dist. No. 1
v. Redding: Why Qualified Immunity is a Poor Fit in Fourth Amendment School
Search Cases, 24 B.Y.U. J. Pub. L. 313, 329 (2010). The Supreme Court first
introduced the “clearly established” prong in reference to an officer’s good faith
and held that a compensatory award would only be appropriate if an officer “acted
with such an impermissible motivation or with such disregard of the [individual’s]
clearly established constitutional rights that his action cannot reasonably be
characterized as being in good faith.” Wood v. Strickland, 420 U.S. 308, 322
(1975). In Harlow v. Fitzgerald, when the Supreme Court moved to an objective
test, the clearly established prong became a part of the qualified immunity test.
See 457 U.S. at 818 (“We therefore hold that government officials performing
discretionary functions generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established statutory or
constitutional rights.”). It seems ironic that the federal courts would restrict a
congressionally mandated remedy for constitutional violations -- presumably the
rights of innocent people -- and discourage case law development on the civil side
-- and restrict case law development to motions to suppress, which reward only
the guilty and is a judicially created, rather than legislatively created, remedy.
Commentators have noted that, “[o]ver the past three decades, the Supreme Court
has drastically limited the availability of remedies for constitutional violations in”
exclusionary rule litigation in a criminal case, habeas corpus challenges, and civil
litigation under § 1983. J. Marceau, The Fourth Amendment at a Three-Way
Stop, 62 Ala. L. Rev. 687, 687 (2011). Some commentators have also encouraged
the courts to drop the suppression remedy and the legislature to provide more -not less -- civil remedies for constitutional violations. See Christopher Slobogin,
Why Liberals Should Chuck the Exclusionary Rule, 1999 U. Ill. L. Rev. 363, 39091 (1999)(“Behavioral theory suggests that the exclusionary rule is not very
effective in scaring police into behaving . . . . These theories also suggest that a
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‘scarce judicial resources’ to resolve difficult and novel questions of constitutional or statutory
interpretation that will ‘have no effect on the outcome of the case.’” Ashcroft v. al-Kidd, 563
U.S. 731, 735 (2011)(quoting Pearson v. Callahan, 555 U.S. at 236-37). See Camreta v. Greene,
563 U.S. at 707 (“In general, courts should think hard, and then think hard again, before turning
small cases into large ones.”).20 The Tenth Circuit will remand a case to the district court for

judicially administered damages regime . . . would fare significantly better at
changing behavior at an officer level.”); Hon. Malcolm R. Wilkey, Constitutional
Alternatives to the Exclusionary Rule, 23 S. Tex. L.J. 531, 539 (1982)(criticizing
the exclusionary rule and recommending alternatives). In Hudson v. Michigan,
547 U.S. 586 (2006), the Supreme Court noted that civil remedies were a viable
alternative to a motion to suppress when it held that the exclusionary rule was
inapplicable to cases in which police officers violate the Fourth Amendment when
they fail to knock and announce their presence before entering. See 547 U.S. at
596-97. Rather than being a poor or discouraged means of developing
constitutional law, § 1983 seems the better and preferable alternative to a motion
to suppress. It is interesting that the current Supreme Court and Tenth Circuit
appear more willing to suppress evidence and let criminal defendants go free, than
have police pay damages for violations of innocent citizens’ civil rights. It is odd
that the Supreme Court has not adopted a clearly established prong for
suppression claims; it seems strange to punish society for police violating unclear
law in criminal cases, but protect municipalities from damages in § 1983 cases.
Kerns v. Bd. of Comm’rs, 888 F. Supp. 2d 1176, 1224 n.36 (D.N.M. 2012)(Browning, J.),
abrogated on other grounds as recognized in Ysasi v. Brown, No. CIV 13-0183 JB/CG, 2014 WL
936835, at *9 n.24 (D.N.M. Feb. 28, 2014)(Browning, J.). See Richard E. Myers, Fourth
Amendment Small Claims Court, 10 OHIO ST. J. CRIM. L. 571, 590-97 (2013)(arguing that
municipalities should establish small-claims courts to adjudicate police officers’ Fourth
Amendment violations and award monetary judgments).
20

In Kerns v. Board of Commissioners, the Court expressed concern with Justice Elena
Kagan’s comments about “large” and “small” cases:
While the Court is, of course, obligated to follow faithfully the Supreme Court’s
decisions and opinions, the Court has always been unenlightened and even
troubled by Justice Elena Kagan’s comments in Camreta v. Greene about “large”
and “small” cases. [563 U.S. at 707]. As a trial judge, the Court has tried
assiduously to avoid thinking about or categorizing some cases as “large” and
some as “small.” It usually is not mentally healthy for a judge to put all his or her
energy into “large” cases and slight “small cases”; to the litigants, their case is the
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most important case on the Court’s docket, and it is usually wise for the judge to
treat each case on which he or she is working -- at that moment -- as the most
important case at that moment. Getting the decision “right,” i.e. getting the law
and facts correct and accurate, is obviously important, but getting it right is only
one-half of a judge’s task, particularly a trial judge’s job. The other half of
dispensing justice is the appearance of justice -- did the Court listen to the
litigant’s arguments, wrestle with those arguments, and deal with them in an
intellectually honest way. Americans are pretty good about accepting a judicial
decision -- even an adverse one -- and cease obsessing over an issue, if they are
convinced that an authority figure has dressed up, taken them seriously, listened
patiently and politely, wrestled with the arguments, addressed them, and
accurately stated the facts. The Court believes that, if it starts looking at some
cases before it as “large” and some as “small,” it begins a slippery slope that does
not accomplish both halves of the task of dispensing justice. The justice system
depends so much on the nation respecting and accepting the courts’ proceedings
and decisions, because courts have very little “power” that does not depend on
that acceptance. Thus, Justice Kagan’s comments are not only not self-defining,
but they are disturbing.
If, perhaps, a “large” case is a Supreme Court case or one that comes from the
East Coast or California, rather than one in a district court in New Mexico, then it
helps to look at what cases the Supreme Court has decided for the plaintiff. The
three most recent qualified immunity cases, the Supreme Court dealt with are: (i)
Reichle v. Howards, 132 S. Ct. 2088 (2012); (ii) Filarksy v. Delia, 132 S. Ct.
1657 (2012); and (iii) Messerschmidt v. Millender, 132 S. Ct. 1235 (2012). In
Reichle v. Howards, the Supreme Court determined that secret service agents
were entitled to qualified immunity for arresting a protestor who touched the Vice
President and held that it was not clearly established that an arrest supported by
probable cause could give rise to a First Amendment violation. See 132 S. Ct. at
2092, 2097. In Filarsky v. Delia, the Supreme Court held that a private individual
that the government hires to do its work, an internal affairs review, is entitled to
seek qualified immunity for Fourth and Fourteenth Amendment violations. See
132 S. Ct. at 1660, 1668. In Messerschmidt v. Millender, the Supreme Court held
that police officers in Los Angeles, California were entitled to qualified immunity
when they relied on an invalid warrant to search a home, because a reasonable
officer would not have realized the error. See 132 S. Ct. at 1241, 1250. The
Supreme Court has not denied qualified immunity since 2004 in Groh v. Ramirez,
540 U.S. 551 (2004), where it held that an officer unreasonably relied on a
deficient warrant. See 540 U.S. at 565. The Court does not think those
presumably “large” cases (they are Supreme Court cases, after all) are any
different -- substantively, legally, or factually -- than this case involving the
search of a citizen’s home after someone shot down a police helicopter and then
detained that suspect for nine months until the United States realized that J. Kerns
could not have shot down the helicopter.
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further consideration when the district court has given cursory treatment to the clearly
established prong of the qualified immunity analysis. See Kerns v. Bader, 663 F.3d at 1182.
2.

Clearly Established Rights in the Qualified Immunity Analysis.

To determine whether a right was clearly established, a court must consider whether the
right was sufficiently clear that a reasonable government employee in the defendant’s shoes
would understand that what he or she did violated that right. See Casey v. W. Las Vegas Indep.
Sch. Dist., 473 F.3d 1323, 1327 (10th Cir. 2007). “A clearly established right is generally
defined as a right so thoroughly developed and consistently recognized under the law of the
jurisdiction as to be ‘indisputable’ and ‘unquestioned.’” Lobozzo v. Colo. Dep’t of Corr., 429 F.
App’x 707, 710 (10th Cir. 2011)(unpublished)(quoting Zweibon v. Mitchell, 720 F.2d 162, 17273 (D.C. Cir. 1983)).
“Ordinarily, in order for the law to be clearly established, there must be a Supreme Court
or Tenth Circuit decision on point, or the clearly established weight of authority from other
courts must have found the law to be as the plaintiff maintains.” Currier v. Doran, 242 F.3d 905,
923 (10th Cir. 2001). On the other hand, the Supreme Court has observed that it is generally not
necessary to find a controlling decision declaring the “very action in question . . . unlawful.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987). “In determining whether the right was
‘clearly established,’ the court assesses the objective legal reasonableness of the action at the

On the flip side, treating large cases like they are large cases can create an
appearance problem to the public and to the litigants -- that only big cases deserve
the Court’s attention. A trial judge can overwork a “large” case. It is better to
treat even “large” cases like every other case; large cases and their litigants need
to know and appreciate that they are not the only case on the court’s docket, and
realize that the scarcity of judicial resources applies to them too.
Kerns v. Bd. of Comm’rs, 888 F. Supp. 2d at 1222 n.35.
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time of the alleged violation and asks whether ‘the contours of the right [were] sufficiently clear
that a reasonable official would understand that what he is doing violates that right.’” Holland
ex rel. Overdorff v. Harrington, 268 F.3d at 1186 (alteration in original)(quoting Saucier v. Katz,
533 U.S. at 202). A court should inquire “whether the law put officials on fair notice that the
described conduct was unconstitutional” rather than engage in “a scavenger hunt for cases with
precisely the same facts.” Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004).
The Supreme Court has clarified that the clearly established prong of the qualified
immunity test is a very high burden for the plaintiff: “A Government official’s conduct violates
clearly established law when, at the time of the challenged conduct, the contours of a right are
sufficiently clear that every reasonable official would have understood that what he is doing
violates that right.” Ashcroft v. al-Kidd, 563 U.S. at 741. “In other words, ‘existing precedent
must have placed the statutory or constitutional question beyond debate.’” Reichle v. Howards,
132 S. Ct. at 2093 (quoting Ashcroft v. al-Kidd, 563 U.S. at 741). “The operation of this
standard, however, depends substantially upon the level of generality at which the relevant ‘legal
rule’ is to be identified.” Anderson v. Creighton, 483 U.S. at 639. “The general proposition, for
example, that an unreasonable search or seizure violates the Fourth Amendment is of little help
in determining whether the violative nature of particular conduct is clearly established.”
Ashcroft v. al-Kidd, 563 U.S. at 742. The level of generality at which the legal rule is defined is
important, because qualified immunity shields officers who have “reasonable, but mistaken
beliefs” as to the application of law to facts and operates to protect officers from the sometimes
“hazy border[s]” of the law. Saucier v. Katz, 533 U.S. at 205.
The Tenth Circuit held in Kerns v. Bader that, although “a case on point isn’t required if
the impropriety of the defendant’s conduct is clear from existing case law,” the law is not clearly

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established where “a distinction might make a constitutional difference.” 663 F.3d at 1188
(emphasis in original). In Kerns v. Bader, dealing with the search of a home, the Tenth Circuit
explained that the relevant question “wasn’t whether we all have some general privacy interest in
our home,” but “whether it was beyond debate in 2005 that the officers’ entry and search lacked
legal justification.” 663 F.3d at 1183 (emphasis added). Earlier Tenth Circuit cases, clarifying
the level of generality at which a legal rule must be defined, applied a sliding scale to determine
when the law is clearly established. See Casey v. City of Fed. Heights, 509 F.3d 1278, 1284
(10th Cir. 2007)(“The more obviously egregious the conduct in light of prevailing constitutional
principles, the less specificity is required from prior case law to clearly establish the violation.”).
“[W]hen an officer’s violation . . . is particularly clear . . . , [the Tenth Circuit] does not require a
second decision with greater specificity to clearly establish the law.” Casey v. City of Fed.
Heights, 509 F.3d at 1284. Furthermore, “general statements of the law are not inherently
incapable of giving fair and clear warning . . . .” Hope v. Pelzer, 536 U.S. 730, 741 (2002).
LAW REGARDING SUPPLEMENTAL JURISDICTION
It is a fundamental precept of American law that the federal courts are “courts of limited
jurisdiction.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). Federal
courts “possess only that power authorized by [the] Constitution and statute . . . .” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Among the powers that Congress has
bestowed upon the courts is the power to hear controversies arising under federal law -- federalquestion jurisdiction -- and controversies arising between citizens of different states -- diversity
jurisdiction. See 28 U.S.C. §§ 1331-32.
1.

Supplemental Jurisdiction.

Although a statutory basis is necessary for federal courts to exercise jurisdiction over a

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controversy, “it is well established -- in certain classes of cases -- that, once a court has original
jurisdiction over some claims in the action, it may exercise supplemental jurisdiction over
additional claims that are part of the same case or controversy.”

Exxon Mobil Corp. v.

Allapattah Servs., Inc., 545 U.S. at 552. The Supreme Court has long subscribed to the concept
of supplemental jurisdiction recognized in two common-law doctrines -- pendent and ancillary
jurisdiction.21 “Historically, courts tended to use the term ‘pendent’ to refer to non-federal, nondiversity claims asserted by the plaintiff in a federal question case. And they tended to use
‘ancillary’ to refer to non-federal, non-diversity claims asserted in a diversity of citizenship case
by parties other than the plaintiff.” 13 Charles Alan Wright, Arthur R. Miller, Edward H.
Cooper, & Richard D. Freer, Federal Practice and Procedure § 3523, at 155-56 (3d ed.
2008)(emphasis in original)(footnote omitted). Federal courts may exercise pendent jurisdiction
over state law claims when “state and federal claims . . . derive from a common nucleus of
operative fact.”

United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966).

Ancillary

jurisdiction gives federal courts the flexibility to “entertain[] a non-federal, non-diversity claim
asserted by a party other than the plaintiff, usually in a diversity of citizenship case,” although
occasionally in admiralty cases as well. 13 Wright et. al., supra, § 3523, at 173 & n.45 (3d ed.
2008).
In 1988, Chief Justice William H. Rehnquist created the Federal Courts Study Committee
to analyze the federal court system and to recommend reforms. See James v. Chavez, No. CIV
09-0540 JB/CG, 2011 WL 6013547, at * 5 (D.N.M. 2011)(Browning, J.)(citing 16 Moore’s
21

The Tenth Circuit has noted that Congress’ intent in passing 28 U.S.C. § 1367 was to
supersede the common-law doctrine of pendent jurisdiction: “Effective December 1, 1990,
Congress enacted legislation, codified at 28 U.S.C. § 1367 (1976 & Supp. 1992), which
supersedes the common law pendent jurisdiction doctrine.” Baker v. Bd. of Regents of State of
Kan., 991 F.2d 628, 634 (10th Cir. 1993)(citing Whalen v. Carter, 954 F.2d 1087, 1097 (5th Cir.
1992), and Aschinger v. Columbus Showcase Co., 934 F.2d 1402 (6th Cir. 1991)).
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Federal Practice § 106.04[5], at 106-22 (Matthew Bender 3d ed. 2013)). In response to the
Committee’s findings regarding pendent and ancillary jurisdiction, Congress codified the
application of the two doctrines when it passed the Judicial Improvements Act of 1990:
[I]n any civil action of which the district courts have original jurisdiction, the
district courts shall have supplemental jurisdiction over all other claims that are so
related to claims in the action within such original jurisdiction that they form part
of the same case or controversy under Article III of the United States
Constitution. Such supplemental jurisdiction shall include claims that involve the
joinder or intervention of additional parties.
28 U.S.C. § 1367(a). In enacting 28 U.S.C. § 1367, Congress conferred upon federal district
courts “supplemental forms of jurisdiction . . . [that] enable them to take full advantage of the
rules on claim and party joinder to deal economically -- in single rather than multiple litigation -with matters arising from the same transaction or occurrence.” Report of the Federal Courts
Study Committee, Part II.2.B.2.b. (April 2, 1990), reprinted in 22 Conn. L. Rev. 733, 787 (1990).
Congress codified both ancillary and pendent jurisdiction “under the generic rubric
‘supplemental’ jurisdiction” in 28 U.S.C. § 1367, although “courts and lawyers routinely
continue to use ‘ancillary’ and ‘pendent’ as well as ‘supplemental’ interchangeably to refer to
any situation in which a federal court entertains a claim or proceeding that by itself would not
invoke an independent basis of federal subject matter jurisdiction.” 13 Wright et. al., supra,
§ 3523, at 156 (emphasis in original).
2.

District Court Discretion.

The Tenth Circuit has followed the Supreme Court’s lead in classifying supplemental
jurisdiction not as a litigant’s right, but as a matter of judicial discretion.

See Estate of

Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d 1161, 1165 (10th Cir. 2004)(citing
City of Chi. v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997)). In circumstances where the
supplemental jurisdiction statute may support supplemental jurisdiction, the district court retains
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discretion to decline to exercise that jurisdiction. The traditional analysis, based on the Supreme
Court’s opinion in United Mine Workers v. Gibbs, compelled courts to consider “judicial
economy, convenience and fairness to litigants” when deciding whether to exercise supplemental
jurisdiction. 383 U.S. at 726. Similarly, Congress’ supplemental jurisdiction statute enumerates
four factors that the court should consider:
(1)

the claim raises a novel or complex issue of State law,

(2)

the claim substantially predominates over the claim or claims over which
the district court has original jurisdiction,

(3)

the district court has dismissed all claims over which it has original
jurisdiction, or

(4)

in exceptional circumstances, there are other compelling reasons for
declining jurisdiction.

28 U.S.C. § 1367(c).

In applying these factors, district courts should seek to exercise

supplemental jurisdiction in an effort to “vindicate values of economy, convenience, fairness,
and comity . . . .” Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d at 1164.
Numerous courts have acknowledged that 28 U.S.C. § 1367(c) necessarily changed the
district courts’ supplemental jurisdiction discretion analysis and that, unless one of the conditions
of 28 U.S.C. § 1367(c) exists, courts are not free to decline jurisdiction. See Itar-Tass Russian
News Agency v. Russian Kurier, Inc., 140 F.3d 442, 447 (2d Cir. 1998)(“[S]ection 1367 has
indeed altered Gibbs’ discretionary analysis.”); McLaurin v. Prater, 30 F.3d 982, 985 (8th Cir.
1994)(“The statute plainly allows the district court to reject jurisdiction over supplemental claims
only in the four instances described therein.”); Executive Software N. Am. v. U.S. Dist. Court,
24 F. 3d 1545, 1557 (9th Cir. 1994)(“By codifying preexisting applications of Gibbs in
subsections (c)(1)-(3), however, it is clear that Congress intended the exercise of discretion to be
triggered by the court’s identification of a factual predicate that corresponds to one of the section
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1367(c) categories.”), overruled on other grounds by Cal. Dep’t of Water Res. v. Powerex Corp.,
533 F.3d 1087 (9th Cir. 2008); Palmer v. Hosp. Auth., 22 F.3d 1559, 1569 (11th Cir.
1994)(“[S]upplemental jurisdiction must be exercised in the absence of any of the four factors of
section 1367(c) . . . .”)(emphasis in original); Bonadeo v. Lujan, No. CIV 08-0812 JB/ACT,
2009 WL 1324119, at *8 (D.N.M. April 30, 2009)(Browning, J.)(“28 U.S.C. § 1367(c) changed
the district courts’ supplemental jurisdiction discretion analysis to prohibit courts from declining
jurisdiction unless one of the conditions of 28 U.S.C. § 1367(c) exists.”); Gudenkauf v. Stauffer
Commc’ns, Inc., 896 F. Supp. 1082, 1084 (D. Kan. 1995)(Crow, J.)(“[A]ny exercise of
discretion declining jurisdiction over pendent claims or parties cannot occur until ‘triggered’ by
the existence of one of the four conditions enumerated.”).
The Tenth Circuit has held that district courts should generally decline jurisdiction over
state claims when federal claims no longer remain: “When all federal claims have been
dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining
state claims.” Koch v. City of Del City, 660 F.3d 1228, 1248 (10th Cir. 2011)(Ebel, J.)(quoting
Smith v. City of Enid ex rel. Enid City Comm’n, 149 F.3d 1151, 1156 (10th Cir. 1998)). The
Supreme Court has also recognized:
Needless decisions of state law should be avoided both as a matter of comity and
to promote justice between the parties, by procuring for them a surer-footed
reading of applicable law. Certainly, if the federal claims are dismissed before
trial, even though not insubstantial in a jurisdictional sense, the state claims
should be dismissed as well.
United Mine Workers of Amer. v. Gibbs, 383 U.S. at 726. The Court has previously stated that
the Supreme Court and the Tenth Circuit have indicated that a district court should usually
decline to exercise supplemental jurisdiction when 28 U.S.C. § 1367(c) applies. See Armijo v.
New Mexico, No. CIV 08-0336, 2009 WL 3672828, at *4 (D.N.M. September 30,

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2009)(Browning, J.)(“The Supreme Court and the Tenth Circuit have not only acknowledged
such a result, they have encouraged it.”). The Tenth Circuit has recognized that a district court
does not “abuse [its] discretion” when it declines to exercise supplemental jurisdiction over a
claim “under 28 U.S.C. § 1367(c)(3) . . . where it ‘has dismissed all claims over which it has
original

jurisdiction[.]’”

Muller

v.

Culbertson,

408

F.

App’x

194,

197

(10th

Cir. 2011)(unpublished).
ANALYSIS
C. Payne’s Count I alleges that Wilder violated her substantive and procedural due
process rights under the United States Constitution by depriving her of custody and visitation of
her children. See Complaint ¶¶ 22-28, at 4-6. C. Payne also alleges that Wilder has violated her
right to be free from search and seizure under the United States Constitution by subjecting her to
the “prolonged . . . traffic stop and . . . field sobriety tests when he lacked reasonable suspicion . .
. .” Complaint ¶¶ 22-28, at 4-6. C. Payne bases her allegations in Count II on that same conduct,
but brings Count II under Article II, Sections 10 and 18 of the Constitution of the State of New
Mexico, the state’s analogs to the Fourth and Fourteenth Amendments. See Complaint ¶¶ 26-32,
at 6-7. Wilder asserts qualified immunity, and moves for summary judgment in his favor on both
Counts I and II. See MSJ at 1. The Court concludes that Wilder is entitled to qualified
immunity from liability for his conduct that C. Payne alleges violated her federal constitutional
rights to substantive due process, procedural due process, and to be free from unreasonable
search and seizure, and will thus grant the MSJ as to Wilder and Count I. The Court further
concludes that Wilder is entitled to summary judgment as to C. Payne’s claims sounding in New
Mexico substantive due process and unreasonable search and seizure, because this record of
undisputed material facts demonstrates that Wilder did not commit such state constitutional

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violations in the course of his alleged conduct. The Court concludes, however, that this record of
undisputed material facts does not entitle Wilder to summary judgment as to C. Payne’s claims
sounding in New Mexico’s protections of procedural due process, because C. Payne has asserted
facts creating a genuine dispute whether Wilder’s conduct resulted in a state-deprivation of her
custody over her children without meaningful process before -- or after -- the deprivation.
Accordingly, the Court grants in part and denies in part Wilder’s MSJ as to Count II.
In essence, Wilder’s MSJ as to Count I contends that C. Payne has not alleged that he
violated any of her clearly established constitutional rights.

Qualified immunity shields

government officials from liability where “their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.” Pearson v.
Callahan, 555 U.S. at 231 (quoting Harlow v. Fitzgerald, 457 U.S. at 818). Qualified immunity
also shields officers who have “reasonable, but mistaken beliefs,” and operates to protect officers
from the sometimes “hazy border[s]” of the law. Saucier v. Katz, 533 U.S. at 205. When a
defendant asserts qualified immunity, the plaintiff must demonstrate: (i) that the defendant’s
actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly
established at the time of the alleged misconduct. See Riggins v. Goodman, 572 F.3d at 1107.
The Court will take each of C. Payne’s allegations and consider whether the undisputed facts
establish that Wilder is entitled to qualified immunity, because, either (i) Wilder did not commit
a violation of C. Payne’s rights; or (ii) the rights Wilder violated were not clearly established at
the time of Wilder’s conduct. Taking the facts in the light most favorable to C. Payne, Wilder
did not violate a clearly-established right.

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I.

WILDER DID NOT VIOLATE C. PAYNE’S CLEARLY ESTABLISHED RIGHTS
TO SUBSTANTIVE DUE PROCESS.
C. Payne’s relevant allegations against Wilder are that his conduct over the course of his

child-abuse investigation -- particularly his conduct during his traffic stop of C. Payne, where he
cited her for driving with a suspended license, and he and Bucag’s instruction to R. Payne not to
let C. Payne take the children from R. Payne’s home -- violated her substantive due-process right
to a familial relationship with her children. See Response at 6-7. Put differently, according to C.
Payne, Wilder “virtually terminated” her access to her children, violating her substantive dueprocess rights. Response at 7. Wilder moves for summary judgment by arguing that his “actions
are consistent with Plaintiff’s Fourteenth Amendment Due Process rights under the Constitution
because he did not interfere with Plaintiff’s parental rights[; t]herefore, his conduct did not
violate clearly established law and he is entitled to qualified immunity.” MSJ at 8. Wilder
asserts that “[n]either the United States Supreme Court nor the Tenth Circuit have articulated any
specific prohibition against a public official’s statement about a parent’s custody rights during a
child abuse or neglect investigation.” MSJ at 8. In that regard, Wilder maintains that Wilder
afforded C. Payne “all rights pursuant to her substantive due process right to have control and
custody over her children,” and that, consequently, she has not shown that his conduct violated a
constitutional right. MSJ at 8.
The Fourteenth Amendment’s Due Process Clause provides that “no State shall . . .
deprive any person of life, liberty, or property without due process of law.” U.S. Const. amend.
XIV, § 1. Children have a constitutionally protected liberty interest in a relationship with their
parents, and vice versa.
[C]hoices to enter into and maintain certain familial human relationships must be
secured against undue intrusion by the State because of the role of such
relationships in safeguarding the individual freedom that is central to our
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constitutional scheme. In this respect, freedom of association receives protection
as a fundamental element of personal liberty.
Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18 (1984). See Trujillo v. Bd. of County Comm’rs,
768 F.2d 1186, 1189 (10th Cir. 1985)(holding that a parental relationship is a constitutionally
protected liberty interest). “‘Th[e] right to familial association is grounded in the Fourteenth
Amendment’s Due Process Clause.’”

Cordova v. City. of Albuquerque, 816 F.3d at 654

(quoting Lowery v. City of Riley, 522 F.3d 1086, 1092 (10th Cir. 2008)).
To prevail on a familial-association claim, a plaintiff must make two showings:
(1) that the defendants intended to deprive [him or her] of [his or her] protected
relationship,” and (2) that balancing the individual’s interest in the protected
familial relationship against the state’s interests in its actions, defendants either
“unduly burdened plaintiff[’s] protected relationship, or effected an unwarranted
intrusion into that relationship.”
Cordova v. City. of Albuquerque, 816 F.3d at 654-55 (quoting Thomas v. Kaven, 765 F.3d 1183,
1196 (10th Cir. 2014))(alterations added). The Tenth Circuit has held, however, that “not every
statement or act that results in an interference with the right of familial association is actionable.
The conduct or statement must be directed at the familial relationship with knowledge that the
statements or conduct will adversely affect that relationship.” Cordova v. City. of Albuquerque,
816 F.3d at 654-55 (internal quotation marks and citation omitted). To satisfy the first prong of
the familial-association substantive due-process test, then, a plaintiff must allege the defendant
had the “intent to interfere” with a particular protected relationship.

Cordova v. City. of

Albuquerque, 816 F.3d at 654-55 (internal quotation marks and citation omitted). As to the
balancing analysis that the second prong requires, “‘the court will consider, among other things,
the severity of the infringement on the protected relationship, the need for defendants’ conduct,
and possible alternative courses of action.’” Cordova v. City. of Albuquerque, 816 F.3d at 65455 (quoting Thomas v. Kaven, 765 F.3d at 1196).

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To determine whether a person’s familial association rights have been violated in
this factual setting, we must weigh two factors: the state’s interests in
investigating reports of child abuse, . . . [and] [the plaintiff’s] interests in . . .
familial right of association. Initially, we examine these factors objectively, that
is, outside of the facts or subjective positions of the parties. Nonetheless, we do
not evaluate constitutional rights in a vacuum. Ultimately, we must examine the
parties’ interests in light of the facts of this particular case.
Griffin v. Strong, 983 F.2d 1544, 1547 (10th Cir. 1993).
As to whether there was a constitutional violation, Wilder maintains that he did not “act
with knowledge or intent, even if his words interfered with plaintiff’s parental rights,” because:
(i) he “acted pursuant to another entity’s directive,” -- which was a “referral from CYFD
requiring that he follow up on an anonymous tip”; (ii) he did “not interfere with Plaintiff’s access
to her children” and only informed her that she would be prevented from seeing her children
until the investigation was complete; (iii) any of his “interference was justified by facts
amounting to reasonable suspicion that the children faced imminent threats to their safety”; and
(iv) he “only intended to pursue the investigation.” MSJ at 11. According to Wilder, these
actions do not show the “requisite knowledge or intent amounting to a substantive due process
violation.” MSJ at 10-11 (citing J.B. v. Wash. Cnty., 127 F.3d at 922, 927-28)(considering a
child abuse investigation where county officials removed a child for eighteen hours but
eventually concluded that, through the course of their investigation, there was no evidence of
child abuse, and holding that, although removal of the child for eighteen hours practically
interfered with her parent’s rights of familial association, the officials committed no substantive
due-process violation). Wilder further avers that he did not, at any point, “exercise[] any
authority to prevent Plaintiff from the control and custody over her children,” and that he only
investigated the report of child abuse as it was his duty. MSJ at 11-12. Wilder also contends
that, should his words to C. Payne constitute interference, that interference is “minimal and

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outweighed by the risks described in the anonymous tip.” MSJ at 12. Wilder requests that the
Court balance the interests at stake and conclude: “Plainly, Deputy Wilder did not violate
Plaintiff’s substantive due process rights and any intrusion was justified by the need to assure the
children’s safety and well-being,” because his only intent was to “pursue the investigation and
assure the children’s safety, not to sever or obstruct Plaintiff’s relationship with her children.”
MSJ at 12-13. C. Payne disagrees, arguing that Wilder “virtually terminated” her rights to her
children by prohibiting her “from having physical custody of her children until she allowed a
search of the home in which she was housesitting” and that Wilder based this prohibition upon
an unreliable anonymous tip. Response at 6.
The undisputed facts first establish that, “[o]n July 8, 2015, Deputy Wilder received a
referral from CYFD and Intake Report as part of an investigation into an anonymous tip alleging
child abuse and neglect of Plaintiff Cara Payne’s two children.” MSJ ¶ 3, at 3. See Response ¶
3, at 1. Next, Wilder began investigating the anonymous tip by running a background check on
R. Payne, C. Payne, and C. Payne’s partner, Herndon, at which point he discovered C. Payne’s
driver’s license was suspended. See MSJ ¶ 4, at 3; Response ¶ 4, at 1. Wilder next visited R.
Payne in an attempt to corroborate the anonymous tip’s allegations against C. Payne, which R.
Payne confirmed. See MSJ ¶ 6, at 3-4; Response ¶ 7, at 1. When Wilder attended C. Payne’s
residence that the anonymous tip described -- 10 Coyote Lane -- C. Payne was not there, but
Wilder encountered her vehicle later that day, at which point he executed a traffic stop. See MSJ
¶¶ 8-9, at 4; Response ¶¶ 8-9, at 1-2. During the traffic stop, in relevant part, Wilder informed C.
Payne that “she could not see her children if she did not cooperate with the CYFD investigation,”
and that, because of the open child abuse investigation, he needed to conduct an investigation of
the home at 10 Coyote Run before he could allow the children there. MSJ ¶ 11, at 4; Response ¶

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11, at 2; id. ¶ 2, at 3. Accordingly, “[f]rom July 8, 2015 until December 25, 2015, Plaintiff was
only allowed to see her kids at her ex-husband’s house on two occasions.” Response ¶ 5, at 3.
The Court also notes that, in its review of the record, Wilder testified that he and Bucag
subsequently met with R. Payne, at which point Wilder “told him not to give her the children.
And if she tries to contact him contact me and I will then contact Ms. Payne and advise her of
what I had already told her at the traffic stop in reference to the cooperation of the child abuse
investigation.” Wilder Depo. at 24:8-12.
At that point I just wanted to make sure that the kids were in a safe place. They
were with him anyway, it was his week. I wanted to make sure that Ms. Payne
didn’t come and try and pick up the kids early or give him some type of a deal to
pick up the kids early, ’cause I wanted him to know that this was an open
investigation and we needed to insure that the environment at 10 Coyote Run was
safe for kids to go back to. . . . When you say take the kids[,] I think there’s a
misconception here that we picked them up, took them and transported them
somewhere. They were already with their father who is the legal guardian and
custodian of them. We just said, hey listen we’d like for you to keep the kids
here. He said there’s no reason for him to turn them over. I said, yeah, but if she
comes here saying that she wants to take the kids these are the allegations. We
want to make sure that wherever she’s staying is a safe environment for the kids.
That was the extent of the conversation. . . . We obviously didn’t deny the fact
that she could come over to the house. I told him that’s totally up to you. You
have a custody agreement. If you want to allow her into the house to visit the kids
that’s totally on you. And in conversations with him I guess that has happened. . .
. There was also a conversation with Mr. Payne that he understood that that’s a
civil order between them. And that what we’re basically doing at that point is
interrupting the civil order while we’re conducting basically a criminal
investigation.
Wilder Depo at 27:23-29:6. “When a defendant asserts qualified immunity at the summary
judgment stage, the burden shifts to the plaintiff, who must” demonstrate that “(1) the defendant
violated a constitutional right, and (2) the right was clearly established at the time of the alleged
unlawful activity.” Lundstrom v. Romero, 616 F.3d 1108, 1118 (10th Cir. 2010). Here, C.
Payne has not attempted to dispute Wilder’s account of his interaction with R. Payne, but instead
is arguing that Wilder’s conduct in speaking to R. Payne “virtually terminated” her rights to
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familial association. Response at 6. The Court, then, credits Wilder’s account of the nature of
his instruction to R. Payne as being undisputed evidence on this record. See Response passim
(not disputing or proffering alternative evidence regarding Wilder’s discussions with R. Payne,
and, generally, only proffering as evidence in support of the Response by attaching the C. Payne
Aff.).
Turning, then, to the two-pronged familial-association substantive due-process test, the
Court concludes that the undisputed facts entitle Wilder to qualified immunity, because C. Payne
has not established that Wilder’s conduct in this case constituted an “undue burden” on C.
Payne’s associational interests. Griffin v. Strong, 983 F.2d at 1547. See Cordova v. City. of
Albuquerque, 816 F.3d at 654-55. First, it is important to note at the outset that C. Payne argues
that Wilder “virtually terminated” her rights to familial association by prohibiting her “from
having physical custody of her children until she allowed a search of the home in which she was
housesitting” and that Wilder based this prohibition upon an unreliable anonymous tip.
Response at 6. C. Payne does not allege that Wilder’s conduct resulted in her inability to visit
with the children while the investigation was ongoing. Cf. Response at 6 (asserting she saw the
children twice). In that regard, the undisputed facts establish that C. Payne was not separated
completely from her children, and that the allegedly unconstitutional conduct concerns Wilder’s
statements to C. Payne during the traffic stop about how he needed to search 10 Coyote Lane
before the children could go there and Wilder’s statements to R. Payne requesting he not allow
C. Payne take the children away from his home; there is no allegation of a direct, physical state
intervention by removal of the children from C. Payne. See Complaint, passim; Response at 6.
Nonetheless, in the context of R. Payne and C. Payne’s custody agreement, Wilder’s conduct
ultimately resulted in C. Payne’s inability to have physical custody of her children at her home.

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See Response at 6. The Court also notes that, at the time when Wilder told R. Payne not to let C.
Payne take the children, Wilder’s statement was an empty directive, because it was not C.
Payne’s turn to have the children anyway; moreover, the undisputed record facts reflect that C.
Payne did not take physical custody of her children from “[f]rom July 8, 2015 until December
25, 2015 . . . .” Response ¶ 5, at 3. C. Payne accomplished visitation of her children during that
time period, and she has not alleged that Wilder interfered with her ability in that regard, but that
was not the strictures of her custody agreement. See Response ¶ 5, at 3. Nonetheless, in light of
these facts, the Court concludes that Wilder interfered with C. Payne and her children’s normal,
everyday familial association, and that “it is evident that there was interference with plaintiff’s
rights of familial association,” leaving the Court to determine whether the interference is
actionable under the prongs of the familial-association substantive due-process test. J.B. v.
Washington Cnty., 905 F. Supp. 979, 988 (D. Utah 1995)(Greene, J.). See Cordova v. City of
Albuquerque, 816 F.3d at 654 (“[N]ot every statement or act that results in an interference with
the right of familial association is actionable. The conduct or statement must be directed at the
familial relationship with knowledge that the statements or conduct will adversely affect that
relationship.”)(internal quotation marks and citation omitted)).
Concerning the first prong, the Court concludes that Wilder had the requisite intent to
interfere with C. Payne’s rights to familial association. Indeed, as to the alleged unconstitutional
conduct, the Court can discern no other intent on Wilder’s behalf, because his conduct was
directed at ensuring that some modicum of C. Payne’s rights to familial association were ceded
during his investigation of the child abuse allegations. Cf. J.B. v. Washington Cnty., 905 F.
Supp. at 988 (concluding that an eighteen-hour removal of the child from parents’ physical
custody, for an interrogation regarding allegations of sexual abuse, was interference with

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plaintiffs’ rights of familial association). Wilder maintains that his intent was only to investigate
the child abuse allegations and not to interfere with C. Payne’s associational rights, see MSJ at
11, but the Court is not persuaded that Wilder’s statements did not accomplish both the
furtherance of his investigation and an intentional attempt to interfere with C. Payne’s
associational rights. Wilder primarily relies on J.B. v. Washington Cnty., 127 F.3d at 927-28,
where the Tenth Circuit provided:
Plaintiffs recognize that the County officials had a duty to investigate the
report of child sexual abuse. They do not allege that the officials were motivated
by any other purpose apart from investigation. Rather, they claim that the
officials failed to use the least disruptive procedure to interview the child.
We agree with the district court that while the County’s “objectives might
have been accomplished within a shorter period, there is no evidence that [the
County officials] intended or directed their conduct in this matter at the familial
relationship of L.B. and J.B. with knowledge that such conduct would adversely
affect the relationship as required by [this court].” [J.B. v. Washington Cnty.,]
905 F. Supp. at 988 (citing Griffin [v. Strong], 983 F.2d at 1546, 1548). “Absent
such evidence of wilfulness or intent,” the district court appropriately determined
that no genuine issue of material fact exists as to plaintiffs' substantive due
process claims. Id. We similarly conclude that the County officials’ conduct did
not impermissibly interfere with plaintiffs’ right of familial association.
J.B. v. Washington Cnty., 127 F.3d at 927-28 (quoting J.B. v. Washington Cnty., 905 F. Supp. at
988). The Court notes, however, that, in the preceding paragraphs, the Tenth Circuit also
provided:
In evaluating these competing interests, we have observed that “[n]ot
every statement or act that results in an interference with the rights of intimate
association is actionable.” Griffin, 983 F.2d at 1548. The conduct or statement
must be directed “at the intimate relationship with knowledge that the statements
or conduct will adversely affect that relationship.” Id.
Here, plaintiffs have sounded a constitutional claim by alleging that the
conduct of the County officials was directed at the family relationship with
knowledge that it would adversely affect that relationship. “[I]t is evident that
there was interference with plaintiffs’ rights of familial association” because
“L.B. was physically removed from her home and from her parents for a period of
almost 18 hours,” which “included an overnight stay in a pre-arranged shelter
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home.” 905 F. Supp. at 988. Therefore, we proceed to “examine the evidence to
determine the severity of the alleged infringement, the need for the defendant’s
conduct, and any possible alternatives.” Griffin, 983 F.2d at 1548.
J.B. v. Washington Cnty., 127 F.3d at 927 (quoting Griffin v. Strong, 983 F.2d at 1548). In
essence, then, the Court concludes that the Tenth Circuit, in J.B. v. Washington Cnty., primarily
premised its holding in its analysis of the second prong of the familial-association substantive
due-process test, which entails a balancing of all of the competing interests at stake in the case.
The Court’s review of Griffin v. Strong, a case upon which Wilder heavily relies for its
statements of the law, bolsters this conclusion. In Griffin v. Strong, the Tenth Circuit considered
allegations by a married couple against a detective who used allegedly coercive tactics to obtain
a confession of sexual abuse from the father, resulting in his incarceration and separation from
his wife and daughter. See Griffin v. Strong, 739 F. Supp. 1496, 1498 (D. Utah 1990)(Greene,
J.). The Tenth Circuit overturned the verdict against the defendant for violating the plaintiff’s
substantive due-process rights, and held that “the infringement of familial rights of association in
this case is slight,” but, in the process also cited a case called Trujillo v. Bd. of Cty. Comm’rs of
Santa Fe Cnty., 768 F.2d 1186, 1190 (10th Cir. 1985), for the proposition that, “to rise to the
level of a constitutional claim, the defendant must direct his or her statements or conduct at the
intimate relationship with knowledge that the statements or conduct will adversely affect that
relationship.” Griffin v. Strong, 983 F.2d at 1548. The context of that proposition is important
in guiding the Court’s analysis of this first prong, because, when the Tenth Circuit in Trujillo v.
Bd. of Cty. Comm’rs of Santa Fe Cnty. held that “an allegation of intent to interfere with a
particular relationship protected by the freedom of familial association is required to state a claim
under section 1983,” it was considering an inapposite scenario where the family of a deceased
inmate at the Santa Fe County Jail brought their lawsuit for a deprivation “of their constitutional

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right of familial association under the First and Fourteenth Amendments.” Trujillo v. Bd. of Cty.
Comm’rs of Santa Fe Cnty., 768 F.2d at 1187. The first prong of the familial-association
substantive due-process test is met in this case, because Wilder intended to interfere with C.
Payne’s right and did not merely interfere with that right as a byproduct of, for example, causing
the negligent death of C. Payne’s family member. Cf. Trujillo v. Bd. of Cty. Comm’rs of Santa
Fe Cnty., 768 F.2d at 1187. The Court, accordingly, must proceed to the second prong, and
consider, “among other things, the severity of the infringement on the protected relationship, the
need for defendants’ conduct, and possible alternative courses of action,’” Cordova v. City. of
Albuquerque, 816 F.3d at 654-55 (quoting Thomas v. Kaven, 765 F.3d at 1196), to “ascertain
whether a defendant’s conduct constitutes an undue burden on the plaintiff’s associational
rights,” PJ ex rel. Jensen v. Wagner, 603 F.3d 1182, 1199 (10th Cir. 2010)(citing Griffin v.
Strong, 983 F.2d at 1547).
The undisputed facts establish that Wilder was investigating an allegation of child abuse
against C. Payne. In the course of his investigation, Wilder explained to C. Payne that he would
need to search 10 Coyote Lane so that he could ascertain whether the allegations of an unsafe
living environment were accurate. He alerted C. Payne that, should the allegations be untrue, the
investigation would close and that he would no longer have an interest in keeping the children
out of her home. At no point did Wilder tell C. Payne that she could not otherwise challenge the
allegations with CYFD or discourage her from filing the lawsuits she ultimately filed. Indeed, at
all times, it appears that Wilder’s conduct in interfering with C. Payne’s rights to familial
association was narrowly focused on completing his investigation before C. Payne took physical
custody of her children from R. Payne in accordance with their custody agreement. Further,
unlike in J.B. v. Washington Cnty., where the Tenth Circuit concluded that an eighteen-hour

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removal of parents’ child to interrogate that child about potential occasions of sexual abuse did
not unduly burden the parents’ substantive due-process rights, Wilder did not even physically
remove C. Payne’s children from her personal custody.

See 127 F.3d at 927-28.

The

infringement’s severity, then, is not as serious as the actual physical removal in J.B. v.
Washington Cnty., because C. Payne had the opportunity to comply with Wilder’s investigation,
and, nonetheless, still had access to visit her children at R. Payne’s home during the
investigation.
Ultimately, Wilder’s conduct appears to be the imposition of some restrictions in
accordance with what he perceived was the proper path for investigating the allegations against
C. Payne. In that regard, the Court is persuaded by its analysis of the “need for defendants’
conduct, and possible alternative courses of action,” Cordova v. City. of Albuquerque, 816 F.3d
at 654-55, that these factors weigh in favor of Wilder’s conduct, particularly where C. Payne has
not attempted to proffer any alternative courses of action. As to the necessity of Wilder’s
conduct, the Court notes that the state of New Mexico has a strong interest in investigating
allegations of child abuse, and that the undisputed facts here do not otherwise indicate that
Wilder had some motive besides investigating the present allegation of child abuse. See Griffin
v. Strong, 983 F.2d at 1547

The Tenth Circuit, similarly, in PJ ex rel. Jensen v. Wagner

addressed a parents’ lawsuit against a doctor who diagnosed their child with cancer. See 603
F.3d at 1190. In short, a juvenile court ordered the child be taken into state custody for
chemotherapy treatment, because the parents refused. See 603 F.3d at 1190-91. After a lengthy
series of events, the state ultimately decided “that the state’s interest in the case had shifted such
that attempting to force chemotherapy treatment and placing the [parents] in jail would no longer
be in P.J.’s best interest.” 603 F.3d at 1192. The Tenth Circuit considered the parents’ lawsuit

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alleging a deprivation of their rights to familial association, and, in balancing the interests at
stake, held:
First, the [parents’] interest in associating with P.J. is unquestionably of
paramount importance. . . . Second, as discussed above, the state’s interest in
protecting and safeguarding P.J.’s life is also significant. Finally, given these
countervailing interests, the record demonstrates that the actual burden on the
[parents]’ right to associate with P.J. was minimal in this case. The [parents]
correctly point out that the forced separation of parent from child, even for a short
time, represents a serious impingement. . . . In this case, however, P.J. was never
physically removed from the[ir] custody and the state afforded the[m] numerous
opportunities to obtain treatment for P.J. before it even sought to remove him
from their custody. Under these circumstances, the [parents] fail to show that any
defendant imposed an undue burden on their relationship with P.J. and therefore
fail to show a violation of their associational rights.
603 F.3d at 1199 (internal quotation marks and citations omitted)(emphasis added).22 C. Payne
similarly does not show that Wilder imposed an undue burden on her relationship with her
children, because he never physically removed the children from her custody, and his minimal
interference in her relationship with the children -- by suggesting to her and R. Payne that she
could not take the children to 10 Coyote Lane until he had searched that residence and closed his
investigation -- was not unaccompanied by opportunities to comply or challenge the
investigation. The Court concludes that, on balance, the infringement of familial rights of
association in this case is thus slight, resulting only in a minor disruption in C. Payne and her
children’s lives. Again, the right of intimate association is not absolute, and, viewed in the
context of the minimal infringement indicated by this record, the Court concludes that Wilder’s
conduct did not unduly interfere with C. Payne’s right of familial association with her children.
Consequently, C. Payne has not demonstrated a constitutional violation of her substantive due-

22

The Court notes that, in the absence of the Tenth Circuit caselaw which squarely
controls the Court’s analysis in this case, the Court is uncertain it would reach the same
conclusion that it reaches today in determining that there was no substantive due-process
violation on these facts.
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process rights to familial association, and has thus not met her burden in responding to Wilder’s
MSJ -- wherein he asserts his qualified immunity to her claims -- because on these undisputed
facts Wilder is entitled to qualified immunity as a matter of law.
The Court, accordingly, need not rely upon the clearly established prong of the qualified
immunity analysis to grant Wilder’s MSJ as to C. Payne’s substantive due-process claims. The
Court notes, however, that there is no clearly established law making Wilder’s conduct unlawful.
“Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or
Tenth Circuit decision on point, or the clearly established weight of authority from other courts
must have found the law to be as the plaintiff maintains.” Currier v. Doran, 242 F.3d at 923. “In
determining whether the right was ‘clearly established,’ the court assesses the objective legal
reasonableness of the action at the time of the alleged violation and asks whether ‘the contours of
the right [were] sufficiently clear that a reasonable official would understand that what he is
doing violates that right.’” Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1186 (alteration
in original)(quoting Saucier v. Katz, 533 U.S. at 202). A court should inquire “whether the law
put officials on fair notice that the described conduct was unconstitutional” rather than engage in
“a scavenger hunt for cases with precisely the same facts.” Pierce v. Gilchrist, 359 F.3d at 1298.
The issue then is whether Wilder was on fair notice that, in his investigation of the child abuse
allegations against C. Payne, his “described conduct was unconstitutional.” Pierce v. Gilchrist,
359 F.3d at 1298. In answering that question, it is important to note that the clearly established
prong of the qualified immunity test is a very high burden for C. Payne: “A Government
official’s conduct violates clearly established law when, at the time of the challenged conduct,
the contours of a right are sufficiently clear that every reasonable official would have understood
that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. at 741. “In other words,

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‘existing precedent must have placed the statutory or constitutional question beyond debate.’”
Reichle v. Howards, 132 S. Ct. at 2093 (quoting Ashcroft v. al-Kidd, 563 U.S. at 741). “The
operation of this standard, however, depends substantially upon the level of generality at which
the relevant ‘legal rule’ is to be identified.” Anderson v. Creighton, 483 U.S. at 639. “The
general proposition, for example, that an unreasonable search or seizure violates the Fourth
Amendment is of little help in determining whether the violative nature of particular conduct is
clearly established.” Ashcroft v. al-Kidd, 563 U.S. at 742. The level of generality at which the
legal rule is defined is important, because qualified immunity shields officers who have
“reasonable, but mistaken beliefs” as to the application of law to facts and operates to protect
officers from the sometimes “hazy border[s]” of the law. Saucier v. Katz, 533 U.S. at 205. In
this substantive due-process/familial association context, the “[c]ourts have recognized that the
constitutional right to familial integrity is amorphous and always must be balanced against the
governmental interest involved.” Martinez v. Mafchir, 35 F.3d at 1490. Indeed, the substantive
due-process right to familial association “has never been deemed absolute or unqualified.”
Starkey v. Boulder Cnty. Soc. Servs., 569 F.3d at 1253 (quoting Martinez v. Mafchir, 35 F.3d at
1490).
C. Payne has not alerted the Court -- or attempted to alert the Court -- in her Response, to
a case or statute which qualifies in relevant fashion the amorphous right which she alleges
Wilder has violated.

See Response passim.

Accordingly, although the Court has already

concluded that Wilder did not commit a constitutional violation of C. Payne’s constitutional
rights, the right of which she complains was violated is nonetheless not clearly established;
Wilder is entitled to qualified immunity regardless of which prong it analyzes. The Court grants
the MSJ and concludes that Wilder is entitled to qualified immunity from C. Payne’s claims

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sounding in substantive due process.
II.

WILDER VIOLATED C. PAYNE’S RIGHTS TO PROCEDURAL DUE
PROCESS, BUT THOSE RIGHTS WERE NOT CLEARLY ESTABLISHED IN
THIS CONTEXT.
C. Payne also alleges that Wilder violated her procedural due-process rights by depriving

her of custody of her children without notice or any opportunity to be heard. See Complaint ¶
25, at 8. Wilder moves for summary judgment on this claim, because he “did not interfere with
any right to challenge the terms of the CYFD investigation and he could not have violated
Plaintiff’s procedural due process rights.” MSJ at 14. Wilder concedes that states may take
children from parents only after fair process, but asserts that he “never interfered with that right,
much less her procedural right to contest any related intrusion.” MSJ at 15. Essentially, Wilder
maintains that C. Payne could have, and should have, contacted CYFD about the anonymous tip
and subsequent investigation, should she have wanted process. See MSJ at 15. Regardless,
Wilder further argues that, even if he controlled the procedures of which C. Payne argues he
deprived her, “he never removed or interfered with Plaintiff’s control or custody over her
children.” MSJ at 15. Wilder also contends that, “[i]f he had removed the children with a prior
hearing, he would have been justified by reasonable suspicion based upon 1) the information in
the anonymous tip; 2) Mr. Payne’s corroboration of those facts; and 3) Deputy Wilder’s
awareness of Ms. Payne’s association with methamphetamine users.” MSJ at 15. In sum,
Wilder reiterates that no “reasonable officer would know that mere words violate a plaintiff’s
procedural due process rights . . . or could have known that sharing misinformation about a
plaintiff’s parental rights interferes with the right to contest the deprivation.” MSJ at 16. In her
Response, C. Payne confronts only Wilder’s arguments regarding procedural due process by

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stating she has pursued her case in state court and that she has thus not disavailed herself of
“process” to regain custody. Response at 6-7.
The Tenth Circuit prescribes a two-step inquiry in determining whether an individual’s
procedural due-process rights are violated: (i) “Did the individual possess a protected property
interest to which due process protection was applicable?”; and (ii) “Was the individual afforded
an appropriate level of process?” Camuglia v. City of Albuquerque, 448 F.3d at 1219 (quoting
Clark v. City of Draper, 168 F.3d at 1189 (internal quotation marks omitted)). Child custody,
care, and control is an established, protected interest under the first step of the inquiry, see
Spielman v. Hildebrand, 873 F.2d at 1385, and the state may thereby take children from parents
only after fair process, which in context requires “prior notice and a hearing, except in
extraordinary situations where some valid governmental interest is at stake that justifies
postponing the hearing until after the event,” Gomes v. Woods, 451 F.3d at 1128. “These
extraordinary situations include emergency circumstances which pose an immediate threat to the
safety of a child.”

451 F.3d at 1128 (internal quotation marks and alterations omitted).

Regarding application of this principle, the Tenth Circuit has held:
In our view, the reasonable suspicion standard appropriately balances the interests
of the parents, the child, and the state. The failure to act when a child is in danger
may have “unthinkable consequence[s].” Jordan v. Jackson, 15 F.3d 333, 350
(4th Cir. 1994). As a result, social workers should be afforded some discretion
when they seek to protect a child whose safety may be at risk. . . . Following the
majority approach, we conclude that state officials may remove a child from the
home without prior notice and a hearing when they have a reasonable suspicion of
an immediate threat to the safety of the child if he or she is allowed to remain
there. We emphasize again that even in these instances in which emergency
removal is justified, the state must afford the parents a prompt post-removal
hearing.
Gomes v. Woods, 451 F.3d at 1130. Reasonable suspicion, the Court notes, does not include the
mere possibility of danger. See Roska v. Peterson, 328 F.3d at 1245. Under that standard, state

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officials must have “‘evidence giving rise to a reasonable and articulable suspicion that the child
has been abused or is in imminent peril of abuse.’” Gomes v. Woods, 451 F.3d at 1129 (quoting
Hatch v. Dep’t for Children, Youth & Their Families, 274 F.3d 12, 20 (1st Cir. 2001)). Further,
when an agency removes a child before a hearing, the state remains obligated to provide a
hearing post-removal. See Gomes v. Woods, 451 F.3d at 1128.
Accordingly, the Court must determine whether Wilder’s statements to C. Payne at the
traffic stop and his subsequent statements to R. Payne, about C. Payne’s inability to have the
children in her home while the investigation was pending constitute a clearly established
violation of her procedural due process rights. At the outset, the Court notes that C. Payne does
not argue that the children were formally removed from her custody and control without process;
she instead argues that her children were “virtually removed” from her custody and control
without process, because Wilder’s statements effectively barred her from custody, because R.
Payne did not let her have them subsequent to Wilder’s conduct. Response at 6. The Court is
not persuaded that the deprivation C. Payne endured is the same as a full-fledged state removal
of her children without process; indeed, even looking at the applicable law’s language, the
present scenario is not comparable to that in Gomes v. Wood, where the Tenth Circuit held that
“state officials may remove a child from the home without prior notice and a hearing when they
have a reasonable suspicion of an immediate threat to the safety of the child if he or she is
allowed to remain there,” because the children were not at 10 Coyote Lane when Wilder made
his statements. Of course, the statements appear to have had an enduring effect, as C. Payne -before CYFD closed their investigation -- relied upon Wilder’s authority and only visited the
children at R. Payne’s home twice in the relevant time frame, and did not apparently attempt to
take them with her to 10 Coyote Lane in contravention of what Wilder had directed. See

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Response ¶ 5, at 3. See also Jojola v. Chavez, 55 F.3d at 493 (“The authority with which the
defendant is allegedly ‘clothed’ may be either actual or apparent.”). The Court does not have
information about R. Payne and C. Payne’s custody agreement, and only knows that it is
undisputed that it exists. See MSJ ¶ 15, at 5. C. Payne does not tender to the Court the times
when she was entitled to the children’s physical custody. See Response, passim. There was no
actual, formal state deprivation of C. Payne’s parental custody, distinguishing this case from the
typical procedural due-process analyses where a state has physically removed children from an
allegedly abusive living situation. See Gomes v. Woods, 451 F.3d at 1129 (quoting Hatch v.
Dep’t for Children, Youth & Their Families, 274 F.3d at 20).
What C. Payne essentially requests is process at some point during the pendency of the
investigation regarding Wilder’s informal interference with her physical custody over her
children, unless and until she complied with the investigation and a search of her residence. The
Court must, therefore, first consider whether these statements constituted a deprivation subject to
due-process procedural protections. There do not appear to be, in the Court’s review, any Tenth
Circuit cases addressing circumstances such as those present here, where the State has not
physically taken the child away from a parent, but otherwise gained the child’s custody by, say,
“refusing to release him or her after the parent has voluntarily granted temporary custody to the
government or a third party. Such situations unquestionably also implicate the parent and child’s
procedural due process rights.” Kia P. v. McIntyre, 235 F.3d 749, 760 (2d Cir. 2000)(citing
Cecere v. City of N.Y., 967 F.2d 826, 830 (2d Cir. 1992)(holding that, when a parent voluntarily
leaves a child with a third party, and the third party later refuses to return the child to the parent
on basis of State authority, the parent is deprived of constitutionally protected liberty interest in
the custody of her child at the moment of refusal to return that child); Duchesne v. Sugarman,

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566 F.2d 817, 822-23, 828 (2d Cir. 1977)(holding that, even though a mother voluntarily left her
children with a neighbor, when State officials assumed custody of the children from the neighbor
and refused to return the children to the mother, the officials were required to initiate postdeprivation proceeding). Cf. Joyner by Lowry v. Dumpson, 712 F.2d 770, 782-83 (holding that
parents who voluntarily relinquished their children to the State nonetheless possessed substantive
due process rights with respect to the State’s later refusal to return the children and the State’s
practice of “strictly controlling visitation, thereby isolating the child and straining familial
bonds”)). The Second Circuit, in that regard, has developed a small body of caselaw providing
guidance which the Court finds persuasive, and which that circuit readily follows. For example,
in Sundbye v. Oqunleye, 3 F. Supp. 2d 254 (E.D.N.Y. 1998)(Gleeson, J.), the district judge
concluded that even where there was not an actual deprivation of the parent’s liberty interest in
the custody and care of their child through a legal change in custody -- the parent believed that a
written agreement she had signed allowing her daughter to live with family members was legally
binding in the same way a voluntary placement instrument would have been -- the parent’s mere
reasonable belief of deprivation was sufficient to implicate her liberty interests. See 3 F. Supp.
2d 254. The district judge also concluded that the investigating agency’s delay in filing a
petition in Family Court did not meet due-process requirements, citing the Second Circuit
decision in Gottlieb v. County of Orange, 84 F.3d 511, 520 (2d Cir. 1996). Accordingly, the
Court concludes that C. Payne suffered a deprivation of her custody rights, because she was
effectively deprived of those rights when Wilder -- an authority figure acting on behalf of the
state -- made it apparent to C. Payne and R. Payne that the children could not return to 10 Coyote
Lane until C. Payne submitted to a search of the home and ended the pending investigation. C.
Payne and R. Payne reasonably believed there would be legal repercussions should she take the

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children. As to Wilder’s argument that C. Payne could have taken the kids, the Court notes that
Wilder testified that he told both C. Payne and R. Payne that C. Payne could not have the
children until Wilder had searched 10 Coyote Lane, and that Wilder also testified that he had
knowledge of the custody agreement, which signals to the Court that C. Payne was not somehow
on notice that Wilder did not have the authority to cancel her civil custody agreement. The Court
concludes that, as did the district judge in Sundbye v. Oqunleye, C. Payne effectively suffered a
deprivation, albeit not a formal custody removal, at Wilder’s hands.
Wilder nonetheless advances that the undisputed facts of this case indicate that he was
operating upon what he perceived to be reasonable grounds that, until he cleared 10 Coyote Lane
by a safety search, the evidence he had gathered suggested that C. Payne’s children were at an
imminent risk of abuse should they continue to live at 10 Coyote Lane. The Court disagrees with
Wilder that the undisputed facts upon which Wilder acted objectively establish reasonable
articulable suspicion that the children would be subject to abusive neglect and inadequate living
conditions -- living conditions that, should they be true, had inspired Wilder’s assignment of this
investigation -- while the children were in C. Payne’s custody at 10 Coyote Lane. The Court
first recognizes that, in New Mexico, a police officer like Wilder may hold or take a child into
custody if they have
evidence giving rise to reasonable grounds to believe that the child is abused or
neglected and that there is an immediate threat to the child’s safety; provided that
the law enforcement officer contacts the department to enable the department to
conduct an on-site safety assessment to determine whether it is appropriate to take
the child into immediate custody, except that a child may be taken into custody by
a law enforcement officer without a protective services assessment being
conducted if:
(a) the child’s parent, guardian or custodian has attempted,
conspired to cause or caused great bodily harm to the child or
great bodily harm or death to the child’s sibling;

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(b) the child’s parent, guardian or custodian has attempted,
conspired to cause or caused great bodily harm or death to
another parent, guardian or custodian of the child;
(c) the child has been abandoned;
(d) the child is in need of emergency medical care;
(e) the department is not available to conduct a safety assessment
in a timely manner; or
(f) the child is in imminent risk of abuse . . . .
N.M. Stat. Ann. § 32A-4-6(A)(1). In New Mexico, “[e]vidence that demonstrates that a child
has been knowingly and intentionally exposed to the use of methamphetamine shall be deemed
prima facie evidence of abuse of the child.” N.M. Stat. Ann. § 30-6-1(J). Thus, at the times
when Wilder made his statements, he contends that there was no violation of C. Payne’s
procedural due-process rights in light of the undisputed facts in this case, because C. Payne was
not entitled to any additional predeprivation process from Wilder given that he was acting upon
“‘evidence giving rise to a reasonable and articulable suspicion that the child has been abused or
is in imminent peril of abuse,’” Gomes v. Woods, 451 F.3d at 1129 (quoting Hatch v. Dep’t for
Children, Youth & Their Families, 274 F.3d at 20), with that evidence being, in New Mexico
pursuant to N.M. Stat. Ann. § 30-6-1(J), “prima facie evidence of abuse.” The evidence upon
which Wilder acted was: (i) the information in the anonymous tip alleging C. Payne’s drug use
and cohabitation with a wanted felon at 10 Coyote Lane, see MSJ ¶ 6, at 3-4; (ii) R. Payne’s
corroboration of the allegations in the anonymous tip; and (iii) Wilder’s impressions of C.
Payne’s association with methamphetamine use during and after his traffic stop, see MSJ at 15.
By these items of evidence, the Court concludes that there was insufficient evidence to establish
“‘a reasonable and articulable suspicion that the child has been abused or is in imminent peril of
abuse.’” Gomes v. Woods, 451 F.3d at 1129 (quoting Hatch v. Dep’t for Children, Youth &
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Their Families, 274 F.3d at 20). The Court first recognizes that, generally, Tenth Circuit cases
involving reasonable and articulable suspicion that the child has been abused or is in imminent
peril of abuse tend to be cases where, for example, children presented in hospitals with visible,
physical injuries. See Gomes v. Woods, 451 F.3d at 1137. The Court does not read the Gomes
v. Woods standard to be that exclusive, however:
Accordingly, we conclude that in determining whether state officials have a
reasonable suspicion of an immediate threat to the safety of the child, we must
consider all relevant circumstances, including the state’s reasonableness in
responding to a perceived danger, as well as the objective nature, likelihood, and
immediacy of danger to the child. Ordinarily, the question of whether state
officials had time to seek and obtain judicial authorization for the removal without
jeopardizing the safety of the child will be an important consideration, and the
failure to establish that judicial authorization was impracticable will undermine
the contention that emergency circumstances existed. However, neither this
factor, nor any other single factor, is necessarily dispositive.
Gomes v. Wood, 451 F.3d at 1131 (internal quotation marks and citation omitted). There is,
then, a colorable argument that “[e]vidence that demonstrates that a child has been knowingly
and intentionally exposed to the use of methamphetamine shall be deemed prima facie evidence
of abuse of the child,” N.M. Stat. Ann. § 30-6-1(J), could satisfy the Gomes v. Woods standard
for imminent peril of abuse. The problem here, though, is that Wilder merely had evidence
which suggested that C. Payne used methamphetamine, with no spatial or temporal
qualifications. See MSJ ¶ 6, at 3-4; id. at 15. The Court cannot conclude that such evidence of
alleged drug use -- particularly where the Court can contemplate times where C. Payne might use
methamphetamine when she did not have the children’s custody, but might not comport herself
in that fashion whilst having custody -- satisfies the Gomes v. Wood standard. To conclude
otherwise would give the state carte blanche authority to effect deprivations of child custody,
without any predeprivation process, upon mere allegations of drug use while also being a parent.
Accordingly, the Court concludes that C. Payne was owed predprivation process under these
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circumstances before Wilder took steps to effectuate deprivation of her children’s custody, and
that, in its consideration of Wilder’s entitlement to qualified immunity, there was a constitutional
violation of C. Payne’s procedural due process. The Court next turns to analysis of the clearly
established prong.
The Supreme Court has resolved that the clearly established prong of the qualified
immunity test is a very high burden for the plaintiff: “A Government official’s conduct violates
clearly established law when, at the time of the challenged conduct, the contours of a right are
sufficiently clear that every reasonable official would have understood that what he is doing
violates that right.” Ashcroft v. al-Kidd, 563 U.S. at 741. “In other words, ‘existing precedent
must have placed the statutory or constitutional question beyond debate.’” Reichle v. Howards,
132 S. Ct. at 2093 (quoting Ashcroft v. al-Kidd, 563 U.S. at 741). To determine whether C.
Payne’s right in this context was clearly established, the Court must consider whether the right
was sufficiently clear that a reasonable government employee in the defendant’s shoes would
understand that what he or she did violated that right. See Casey v. W. Las Vegas Indep. Sch.
Dist., 473 F.3d 1323, 1327 (10th Cir. 2007). The Tenth Circuit has held that the law is not
clearly established where “a distinction might make a constitutional difference.” Kerns v. Bader,
663 F.3d at 1186-87 (emphasis in original).
Wilder contends that he operated under reasonable suspicion that, on the basis of the
anonymous tip and his interaction with C. Payne, the children were under imminent threat of
child abuse, because C. Payne was allegedly using methamphetamine at 10 Coyote Lane. The
Court has already concluded that this evidence does not suffice the Gomes v. Wood standard for
negating predeprivation process in these circumstances, but the Court cannot further conclude
that the Supreme Court or the Tenth Circuit has clearly established C. Payne’s rights in these

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unique circumstances. Indeed, C. Payne has not cited any cases in her favor which suggest that it
is clearly established that Wilder’s conduct in this case of effectuating the deprivation of C.
Payne’s custody over her children was procedurally unconstitutional. See Response at 6 (making
no argument regarding the clearly established prong and her claims alleging violations of her
procedural due process rights). Indeed, it appears that Wilder considered himself to have the
authority to handle this issue in the manner in which he did, and CYFD and Bucag’s presence at
the meeting with R. Payne, where he made the most significant deprivation of C. Payne’s
procedural due-process rights, bolsters this conclusion. To borrow Kerns v. Bader’s language,
the Court must consider “whether it was beyond debate” that Wilder’s conduct in the course of
his investigation “lacked legal justification.” 663 F.3d at 1183. Qualified immunity shields
officers who have “reasonable, but mistaken beliefs” as to the application of law to facts and
operates to protect officers from the sometimes “hazy border[s]” of the law. Saucier v. Katz, 533
U.S. at 205. The Court concludes that Wilder made a “reasonable, but mistaken belief[]” in the
course of his child abuse investigation which resulted in a violation of C. Payne’s procedural due
process rights. Accordingly, because the law on these precise facts -- involving the proper
strictures of Wilder’s child abuse investigation and the means available to him to conduct his
investigation -- was not clearly established at the time of Wilder’s violation, the Court will afford
Wilder qualified immunity to C. Payne’s claims alleging a procedural due-process violation.
The Court also notes, for clarity, that the undisputed facts indicate that Wilder did not
continue to instruct R. Payne to withhold custody from C. Payne, and that, on balance, the
undisputed facts suggest that Wilder’s role in the investigation was diminished as CYFD became
more heavily involved. See Response ¶¶ 3-4, at 3.

Instead, the undisputed facts indicate that,

upon evidence giving Wilder what he considered “‘a reasonable and articulable suspicion that

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the child has been abused or is in imminent peril of abuse,’” Wilder made statements to C. Payne
and to R. Payne, the effect of which appears to have persisted beyond that period of time which
R. Payne was, in accordance with his and C. Payne’s custody agreement, entitled to custody over
the children. Response ¶ 5, at 3 (stating that “[f]rom July 8, 2015 until December 25, 2015,” C.
Payne only visited with her children). The Court also notes that Wilder was clear with C. Payne
that his investigation was going to require him to search 10 Coyote Lane to ensure the allegations
in the anonymous tip were not true and that C. Payne did not comply with Wilder’s wish to
investigate the anonymous tip. See Response ¶ 5, at 3 (stating that “[f]rom July 8, 2015 until
December 25, 2015,” C. Payne only visited with her children).

Wilder also appears to have

followed up with C. Payne on a couple occasions, to no avail, in an attempt to complete what he
considered to be a lawful safety search of 10 Coyote Lane. In that regard, it appears that
Wilder’s role in this investigation and C. Payne’s continued deprivation of her children ended
after he made his statements to her and R. Payne, because the investigation ceased and on
December 25, 2015, CYFD apparently ended the investigation. Cf. Response ¶ 5, at 3 (stating
that “[f]rom July 8, 2015 until December 25, 2015,” C. Payne only visited with her children).
Wilder’s de minimis role, in comparison to CYFD, is a further factor in assessing the
reasonableness of Wilder’s mistake, in light of the unestablished law on this matter, and the
Court accordingly takes note of those facts.
III.

WILDER DID NOT VIOLATE C. PAYNE’S CLEARLY ESTABLISHED RIGHTS
UNDER THE FOURTH AMENDMENT.
C. Payne also challenges Wilder’s traffic stop, generally, under the Fourth Amendment.

C. Payne, specifically, contends that Wilder “lacked any reasonable information to support
reasonable suspicion” that she was impaired before he required her to perform field sobriety
tests. Response at 5-6. The Court concludes that the undisputed facts in this case entitle Wilder
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to qualified immunity, because Wilder did not commit a Fourth Amendment violation when he
stopped C. Payne and extended his traffic stop to include a field sobriety test. The undisputed
facts support his contention that he had reasonable suspicion that C. Payne was operating her
vehicle with a suspended driver’s license and that she was operating the vehicle while under the
influence. Generally, an encounter that is not consensual may nevertheless be justified as an
investigative detention. See Dorato v. Smith, 108 F. Supp. 3d. at 1118. An investigative
detention occurs when an officer stops and briefly detains a person “in order to determine his
identity or to maintain the status quo momentarily while obtaining more information.” Oliver v.
Woods, 209 F.3d at 1186 (quoting Adams v. Williams, 407 U.S. at 146). Inasmuch as such brief
investigative detentions are not consensual, they constitute a seizure and must meet two distinct
requirements to be “reasonable” under the Fourth Amendment. Dorato v. Smith, 108 F. Supp.
3d. at 1118. First, the officer “must have a particularized and objective basis for suspecting the
particular person stopped of criminal activity.” Oliver v. Woods, 209 F.3d at 1186 (quoting
United States v. Cortez, 449 U.S. at 417-18). Second, the investigative detention that follows the
stop must be “reasonably related in scope to the circumstances” which justified the stop in the
first place, Terry v. Ohio, 392 U.S. at 20, because the Fourth Amendment imposes “limitations on
both the length of the detention and the manner in which it is carried out,” United States v. Holt,
264 F.3d at 1229, overruled on other grounds as recognized in United States v. Stewart, 473 F.3d
at 1265.
“For reasonable suspicion to exist, an officer ‘need not rule out the possibility of innocent
conduct’; he or she simply must possess ‘some minimal level of objective justification’ for
making the stop.” United States v. Winder, 557 F.3d at 1134 (quoting United States v. Vercher,
358 F.3d at 1261). Information “falling ‘considerably short’ of a preponderance standard” will

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meet the standard for reasonable suspicion. United States v. Winder, 557 F.3d at 1134. See
Illinois v. Wardlow, 528 U.S. 119, 123 (2000)(noting that “‘reasonable suspicion’ is a less
demanding standard than probable cause and requires a showing considerably less than
preponderance of the evidence”). A police-citizen encounter that goes beyond the limits of a stop
under Terry v. Ohio is an arrest, which probable cause or consent must support, to be valid. See
United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir. 1993)(“An encounter between police and
an individual which goes beyond the limits of a Terry stop, however, may be constitutionally
justified only by probable cause or consent.”).
A court must examine “both the length of the detention and the manner in which it is
carried out,” United States v. Holt, 264 F.3d at 1230, “keeping in mind that an officer may
extend the duration and scope of the initial detention based on ‘an objectively reasonable and
articulable suspicion that illegal activity has occurred or is occurring,’” United States v. Wilson,
96 F. App’x at 643 (quoting United States v. Caro, 248 F.3d 1240, 1244 (10th Cir. 2001)).
“When the stop is extended based on reasonable suspicion, the further detention must, like the
original traffic stop, ‘be temporary, lasting no longer than necessary to effectuate the purpose of
the [further detention], and the scope of the [further] detention must be carefully tailored to its
underlying justification.’” United States v. Wilson, 96 F. App’x at 644 (quoting United States v.
Wood, 106 F.3d 942, 945 (10th Cir. 1997)).
“‘A traffic stop is a ‘seizure’ within the meaning of the Fourth Amendment . . . .’”
United States v. Holt, 264 F.3d at 1220. “For the duration of a traffic stop, . . . a police officer
effectively seizes everyone in the vehicle, the driver and all passengers.” United States v. White,
584 F.3d at 945 (quoting Arizona v. Johnson, 555 U.S. at 327). “[B]ecause ‘the ultimate
touchstone of the Fourth Amendment is reasonableness,’” Kentucky v. King, 131 S. Ct. at 1856

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(quoting Brigham City v. Stuart, 547 U.S. at 403), courts
assess the reasonableness of a routine traffic stop under the principles laid out for
investigative detentions in Terry v. Ohio, 392 U.S. 1 (1968), considering “whether the
officer’s action was justified at its inception, and whether it was reasonably related in
scope to the circumstances which justified the interference in the first place.”
United States v. Wilson, 96 F. App’x at 643 (quoting United States v. Holt, 264 F.3d at 1220
(quoting Terry v. Ohio, 392 U.S. at 20)). “A traffic stop is justified at its inception if an officer
has . . . reasonable articulable suspicion that a particular motorist has violated any of the traffic . .
. regulations of the jurisdiction.” United States v. Winder, 557 F.3d at 1134. “[A] traffic stop is
valid under the Fourth Amendment if the stop is based on an observed traffic violation . . . .”
United States v. Williams, 403 F.3d 1203, 1206 (10th Cir. 2005)(citation and internal quotation
marks omitted).
Wilder had reasonable suspicion to stop C. Payne’s vehicle; the undisputed facts indicate
that Wilder had performed a background investigation on C. Payne and had discovered that her
driver’s license was suspended. See MSJ ¶ 9, at 4; Response ¶ 9, at 2. “A traffic stop is justified
at its inception if an officer has . . . reasonable articulable suspicion that a particular motorist has
violated any of the traffic . . . regulations of the jurisdiction.” United States v. Winder, 557 F.3d
at 1134. There is also a question, however, whether Wilder had reasonable suspicion that C.
Payne was operating her vehicle while under the influence of methamphetamine. See United
States v. Wilson, 96 F. App’x at 643-44. See also United States v. Winder, 557 F.3d at 1134.
Wilder was operating against the backdrop of an anonymous tip and R. Payne’s corroborative
suspicions that C. Payne uses methamphetamine. This evidence, combined with the undisputed
fact that C. Payne “appeared covered in scabs, shaking, and extremely thin consistent with
methamphetamine usage,” suggests to the Court that Wilder had reasonable suspicion that C.
Payne was committing a second traffic violation by operating her vehicle under the influence of
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methamphetamine. MSJ ¶ 10, at 4. When Wilder executed the traffic stop, he thus came to have
reasonable suspicion that, given C. Payne’s behavior during the stop, she might have been
operating the vehicle under the influence of methamphetamine and with a suspended license.
See United States v. Wilson, 96 F. App’x at 643-44. Without the contemporaneous shaking, the
Court would not make such a conclusion, but with the shaking, and the other facts, there is
sufficient evidence to cross the line for reasonable suspicion.23

In the course of Wilder’s

administration of the field sobriety test, he determined that she was not operating her vehicle
under the influence and then issued her the citation only for driving with a suspended license.
See United States v. Wilson, 96 F. App’x at 643-44. The Court concludes that Wilder did not
unreasonably extend the stop and that Wilder did not commit a constitutional violation of C.
Payne’s Fourth Amendment rights in the course of the traffic stop. See United States v. Wilson,
96 F. App’x at 643-44.
The Court also notes that, regarding the law which it applies to determine that no
constitutional violation occurred on these undisputed facts, that law is not clearly established in
this context of methamphetamine usage and reasonable suspicion. Cf. Barrow v. Okla. Ex rel.
Dept. of Public Safety, 2017 WL 303312 (10th Cir. 2017)(holding that reasonable suspicion of
intoxication existed where suspect smelled of alcohol, was overly talkative, and was slurring
speech); United States v. Luginbyhl, 321 F. App’x 780, 784 (10th Cir. 2009)(finding reasonable
suspicion to support an investigatory stop upon reports a defendant was “acting crazy” and may
have been stumbling around before the officer arrived). Here, the Court identifies C. Payne’s
shaking at the time of the traffic stop as being the factor which convinces the Court that Wilder
23

According to the Center for Substance Abuse Research at the University of Maryland, a
common short-term effect of methamphetamine ingestion is the user’s experience of tremors.
See Methamphetamine, University of Maryland Center for Substance Abuse Research,
http://www.cesar.umd.edu/cesar/drugs/meth.asp (last accessed August 14, 2017).
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satisfactorily gained reasonable suspicion of C. Payne’s contemporaneous methamphetamine
usage and operation of her vehicle. The Tenth Circuit has held that the law is not clearly
established where “a distinction might make a constitutional difference,” and the Court,
therefore, also concludes that the law is not clearly established in this regard. Kerns v. Bader,
663 F.3d at 1186-87 (emphasis in original). Neither the Tenth Circuit nor the Supreme Court has
expressly established the law of reasonable suspicion for these circumstances, where the officer
is charged with not having reasonable suspicion of methamphetamine usage. In sum, the Court
concludes that Wilder did not violate C. Payne’s Fourth Amendment rights on these undisputed
facts, and that, further, it was not clearly established that, on these undisputed facts -- where C.
Payne presented shaking and covered in scabs -- Wilder could not have reasonable suspicion of
contemporaneous methamphetamine usage or intoxication.
IV.

WILDER DID NOT VIOLATE C. PAYNE’S SUBSTANTIVE DUE-PROCESS
RIGHTS, OR HER RIGHT TO BE FREE FROM UNREASONABLE SEARCHES
AND SEIZURES UNDER THE NEW MEXICO CONSTITUTION, BUT, TAKING
THE FACTS IN THE MOST FAVORABLE LIGHT TO C. PAYNE, THE COURT
CONCLUDES THAT WILDER IS NOT ENTITLED TO SUMMARY
JUDGMENT ON C. PAYNE’S ALLEGATIONS SOUNDING IN PROCEDURAL
DUE PROCESS UNDER THE NEW MEXICO CONSTITUTION.
C. Payne, by Count II, also makes claims against Wilder pursuant to the New Mexico

Constitution. Specifically, C. Payne alleges:
At all times material hereto, the New Mexico Constitution guaranteed Plaintiff the
right to the custody and visitation of her children as well as to be free from
unreasonable seizures. . . . Defendant Wilder violated Plaintiff’s rights when he
deprived her of the custody and visitation of her children and when he forced
Plaintiff to perform field sobriety tests without reasonable suspicion.
Complaint ¶¶ 30-31, at 6. Because Count II realleges that “Wilder and Bucag’s decision to take
away Plaintiff’s custody and visitation of her children was made without notice to Plaintiff,
without any opportunity to be heard by Plaintiff, and in violation of Plaintiff rights to procedural

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and substantive due process,” the Court reads Count II as making allegations that Wilder violated
her procedural and substantive due process rights -- as Article II, Section 18 of the New Mexico
Constitution affords -- in addition to allegations that the traffic stop violated her right to be free
from unreasonable searches and seizures under Article II, Section 10 of the New Mexico
Constitution.

Accordingly, Wilder moves for summary judgment on C. Payne’s state

constitutional claims, arguing, first, that he “did not violate Plaintiff’s Search and Seizure rights
pursuant to Article II, Section 10 of the New Mexico Constitution,” and, second, that he “did not
violate Plaintiff’s Procedural Due Process rights pursuant to Article II, Section 18 of the New
Mexico Constitution,” thereby entitling him to summary judgment. MSJ at 19-23. In his MSJ’s
argument, Wilder also addresses the state substantive due-process claim, despite the imprecise
language of his introduction to the argument which leads the reader to believe he is only
addressing procedural due process. C. Payne, in the Response, makes no mention of her state
constitutional claims under Article II, Section 18, seemingly relying only upon her arguments
regarding the federal Fourteenth Amendment claims which share similar principles of law. See
Response, passim. The Court also notes that C. Payne conceded at the hearing that, on these
undisputed facts, she is not purporting to argue that the New Mexico Constitution provides
greater protections than its relevant federal analogs in the Fourth and Fourteenth Amendments.
See Tr. at 70:3-5 (Court); id. at 70:15-16 (Garcia); id. at 71:9 (Garcia). In that regard, the
Court’s inquiry into Count II as it pertains to C. Payne’s allegations sounding in substantive due
process and unreasonable search and seizure end here, because under New Mexico’s interstitial
approach those allegations lack further force after it concluded, supra, that Wilder committed no
federal constitutional violation of C. Payne’s substantive due process rights or her Fourth
Amendment rights. See State v. Gomez, 1997-NMSC-006, ¶¶ 21, 932 P.2d 1, 7-8. Cf. Kerns v.

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Bd. Of Comm’rs. of Bernalillo Cnty., 2015 WL 7873783, at *15 (D.N.M. 2015)(Browning,
J.)(“In conclusion, probable-cause standards are the same under federal and state law, and the
Tenth Circuit has already concluded that the Defendants had probable cause under federal law.”);
E. Spire Communications, Inc. v. Baca, 269 F. Supp. 2d 1310, 1324 (D.N.M. 2003)(Smith,
M.J.)(concluding that a plaintiff failed to present any authority that the standard for substantive
due process under the New Mexico Constitution differs from the standard for substantive due
process under the United States Constitution). To that extent, the Court -- uncovering no
contrary authority on its own suggesting that, in this context, the New Mexico Constitution
provides broader protections than its federal counterparts -- will similarly grant the MSJ as to
Count II, because the undisputed facts demonstrate that Wilder has not committed the requisite
constitutional violations.
The Court’s task is somewhat different when considering C. Payne’s allegations under
Article II, Section 18, with respect to her rights to procedural due process, particularly because
the Court has already concluded that C. Payne has, on this record, alleged a violation of her
federal due-process rights but is nonetheless entitled to qualified immunity. See State v. Gomez,
1997-NMSC-006, ¶¶ 21, 932 P.2d 1, 7-8. The first issue that the Court must address, however,
is C. Payne’s apparent failure to have specifically supported her New Mexico procedural dueprocess allegations in her Response. See Reply at 10-11. The Court is at a crossroads, because
C. Payne ostensibly addresses the principles which underlie Article II, Section 18, in her
arguments regarding the Fourteenth Amendment. See Response passim. Accordingly, the Court
will credit her arguments as to principles of federal procedural due process, and consider the
undisputed facts against that backdrop of law in its analysis of her New Mexico procedural due-

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process claim.24
At the outset, because C. Payne does not argue that “federal [due process] law is flawed,”
and concedes that she does not seek broader protections under the New Mexico Constitution, the
Court will reiterate its conclusion supra that Wilder’s conduct in his investigation violated C.
Payne’s federal procedural due-process rights. Montoya ex rel. S.M. v. Espanola Pub. Sch. Dist.
Bd. of Educ., 968 F. Supp. 2d 1117, 1120 (D.N.M. 2013)(Johnson, J)(“The Court concludes that
Plaintiffs have not shown that Article II, § 18 provides greater protection than its federal
constitutional counterpart. Thus, Plaintiffs’ claims . . . asserted as violations of the New Mexico
state constitution in Article II, § 18 will be analyzed under its federal counterpart.”). For clarity,
in New Mexico, “[n]o person shall be deprived of life, liberty or property without due process of
law; nor shall any person be denied equal protection of the laws. Equality of rights under law
shall not be denied on account of the sex of any person.” N.M. Const. art. II, § 18. In this
context, the Court of Appeals of New Mexico has stated:
As observed by our Supreme Court in Oldfield v. Benavidez, 116 N.M. 785, 791,
867 P.2d 1167, 1173 (1994), “[t]he government has a compelling interest in the
welfare of children, and the relationship between parents and their children may
be investigated and terminated by the state, provided constitutionally adequate
procedures are followed. Santosky v. Kramer, 455 U.S. 745, 766 [102 S. Ct.
24

The Court notes that, although C. Payne’s New Mexico constitutional claims against
Wilder are encompassed by the New Mexico Tort Claims Act’s waiver of state sovereign
immunity, see N.M. Stat. Ann. § 41-4-12 (“The immunity granted . . . does not apply to liability
for personal injury . . . resulting from . . . violation of property rights or deprivation of any rights,
privileges or immunities secured by the constitution and laws of the United States or New
Mexico when caused by law enforcement officers while acting within the scope of their duties.”),
C. Payne did not sufficiently plead her state constitutional claims pursuant to federal pleading
standards, which require that, under rule 12(b)(6) of the Federal Rules of Civil Procedure, a
complaint must contain sufficient factual matter, accepted as true, to “state a claim for relief that
is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009)(quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The allegations must be “enough that, if assumed
to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008). Regardless, Wilder did not make such a
motion to dismiss.
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1388, 71 L. Ed. 2d 599] (1982).” Similarly, in Ronald A., 110 N.M. at 455, 797
P.2d at 244, the Court noted: “A parent’s right in custody is constitutionally
protected, and actions to terminate that right must be conducted with scrupulous
fairness [.]” (Citation omitted.) The Court in Ronald A., 110 N.M. at 455, 797
P.2d at 244, quoted with approval this Court’s decision in In re Laurie R., 107
N.M. 529, 534, 760 P.2d 1295, 1300 (Ct. App. 1988), which held that
“[p]rocedural due process requires notice to each of the parties of the issues to be
determined and opportunity to prepare and present a case on the material issues.”
Similarly, in Joe R., 1997-NMSC-038, ¶ 29, 123 N.M. 711, 945 P.2d 76, our
Supreme Court held that a “[f]ather’s rights and obligations as a parent are
protected by his constitutional right to due process.”
In In re Kenny F., 109 N.M. 472, 786 P.2d 699 (Ct. App. 1990), overruled on
other grounds by In re Adoption of J.J.B., 117 N.M. 31, 39, 868 P.2d 1256, 1264
(Ct. App. 1993), aff’d, 119 N.M. 638, 894 P.2d 994 (1995), this Court considered
the question of whether a parent’s rights to due process were violated in the
termination of parental rights proceeding. We stated that “[t]he essence of
procedural due process in this context is a fair opportunity to be heard and present
a defense.” Id. at 475, 786 P.2d at 702. In In re Kenny F. the State offered to
transport Mother to the hearing and tried to contact her on numerous occasions to
make certain she was going to be at the hearing but she did not respond to the
state’s offer. See id. Although ultimately this Court denied the mother’s due
process claim, our conclusion was premised upon the mother’s failure to protect
her own interests, despite the opportunity given to her by the state.
State ex rel. Children, Youth, and Families Dept. v. Ruth Anne E., 1999-NMCA-035, ¶¶ 19-20,
974 P.2d 164, 170 (alterations in original). Indeed, the Court of Appeals of New Mexico further
relied on federal precedent in exploring the measure of process owed in the context of custody
deprivation. See 1999-NMCA-035, ¶¶ 21-23. The Court of Appeals of New Mexico announced:
When a person has a right to be heard, procedural due process includes notice to
the person whose right is affected by a proceeding, that is, timely notice
reasonably calculated to inform the person concerning the subject and issues
involved in the proceeding; a reasonable opportunity to refute or defend against a
charge or accusation; a reasonable opportunity to confront and cross-examine
adverse witnesses and present evidence on the charge or accusation;
representation by counsel, when such representation is required by constitution or
statute; and a hearing before an impartial decisionmaker.
1999-NMCA-035, ¶ 26 (adopting these principles). Here, as the Court has explained, C. Payne
was owed predeprivation process under these circumstances before Wilder took steps to

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effectuate deprivation of her custody of her children, and that, where Wilder used his authority as
a law enforcement officer to direct R. Payne not to allow C. Payne to take the children, Wilder
sidestepped C. Payne’s rights to procedural due process.25 The Court’s conclusion at federal law
appears to be consistent with the Court’s consideration of New Mexico’s procedural due-process
law, and the Court cannot thereby conclude that the undisputed facts -- taken in the light most
favorable to C. Payne -- entitle Wilder to judgment as a matter of law. The Court, accordingly,
will deny the MSJ as to its requests relating to C. Payne’s procedural due-process claim in Count
II.
Before ending its analysis of the MSJ, the Court also notes that, although a statutory basis
is necessary for federal courts to exercise jurisdiction over a controversy, “it is well established -in certain classes of cases -- that, once a court has original jurisdiction over some claims in the
action, it may exercise supplemental jurisdiction over additional claims that are part of the same
case or controversy.”

Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. at 552.

“Historically, courts tended to use the term ‘pendent’ to refer to non-federal, non-diversity
claims asserted by the plaintiff in a federal question case. And they tended to use ‘ancillary’ to
refer to non-federal, non-diversity claims asserted in a diversity of citizenship case by parties
other than the plaintiff.” 13 Wright et. al., supra, § 3523, at 155-56 (3d ed. 2008)(emphasis in
original)(footnote omitted). Federal courts may exercise pendent jurisdiction over state law
claims when “state and federal claims . . . derive from a common nucleus of operative fact.”
United Mine Workers v. Gibbs, 383 U.S. at 725. Ancillary jurisdiction gives federal courts the
25

Alternatively, and at the least, C. Payne was owed some measure of formal
postdeprivation process beyond the non-negotiable option of opening up the home for a search.
See Duchesne v. Sugarman, 566 F.2d 817, 822-23, 828 (2d Cir. 1977)(holding that, even though
a mother voluntarily left her children with a neighbor, when State officials assumed custody of
the children from the neighbor and refused to return the children to the mother, the officials were
required to initiate post-deprivation proceeding).
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flexibility to “entertain[] a non-federal, non-diversity claim asserted by a party other than the
plaintiff, usually in a diversity of citizenship case,” although occasionally in admiralty cases as
well. 13 Wright et. al., supra, § 3523, at 173 & n.45 (3d ed. 2008).
To account for these theories of jurisdiction, Congress codified the application of the two
doctrines when it passed the Judicial Improvements Act of 1990:
[I]n any civil action of which the district courts have original jurisdiction, the
district courts shall have supplemental jurisdiction over all other claims that are so
related to claims in the action within such original jurisdiction that they form part
of the same case or controversy under Article III of the United States
Constitution. Such supplemental jurisdiction shall include claims that involve the
joinder or intervention of additional parties.
28 U.S.C. § 1367(a). In enacting 28 U.S.C. § 1367, Congress conferred upon federal district
courts “supplemental forms of jurisdiction . . . [that] enable them to take full advantage of the
rules on claim and party joinder to deal economically -- in single rather than multiple litigation -with matters arising from the same transaction or occurrence.” Report of the Federal Courts
Study Committee, Part II.2.B.2.b. (April 2, 1990), reprinted in 22 Conn. L. Rev. at 787.
Congress codified both ancillary and pendent jurisdiction “under the generic rubric
‘supplemental’ jurisdiction” in 28 U.S.C. § 1367, although “courts and lawyers routinely
continue to use ‘ancillary’ and ‘pendent’ as well as ‘supplemental’ interchangeably to refer to
any situation in which a federal court entertains a claim or proceeding that by itself would not
invoke an independent basis of federal subject matter jurisdiction.” 13 Wright et. al., supra,
§ 3523, at 156 (emphasis in original).
Here, the Court still has pending federal claims against Wilder’s codefendant Bucag.
Unless and until the Court resolves all of the federal claims before it pertaining to Bucag, the
Court considers it necessary to continue to exercise its supplemental jurisdiction under 28 U.S.C.
§ 1367(a) and retain C. Payne’s remaining state claim against Wilder. The Court will not
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remand at this time.
IT IS ORDERED that the requests in Defendant’s Motion for Summary Judgment on
the Basis of Qualified Immunity, filed February 23, 2017 (Doc. 38), are denied in part and
granted in part. The Court: (i) grants Defendant Lee Wilder summary judgment in his favor on
Plaintiff Cara Payne’s claims in Count I brought pursuant to the Fourth and Fourteenth
Amendments to the Constitution of the United States of America; (ii) grants summary judgment
as to Payne’s claims in Count II brought pursuant to the New Mexico Constitution’s protections
for substantive due process, and against unreasonable searches and seizures, see Article II,
Section 10; Article II, Section 18; and (iii) denies summary judgment on Payne’s claim in Count
II brought pursuant to the New Mexico Constitution’s protections for procedural due process, see
Article II, Section 18.
________________________________
UNITED STATES DISTRICT JUDGE
Counsel:
Miguel Garcia
John R. Hakanson, P.C.
Alamogordo, New Mexico
Attorneys for the Plaintiff
Damian L. Martinez
Holt Mynatt Martinez, P.C.
Las Cruces, New Mexico
Attorneys for Defendant Lee Wilder
Lee M. Rogers
Carla Neush Williams
Atwood, Malone, Turner, & Sabin, P.A.
Roswell, New Mexico
Attorneys for Defendants David Ceballes and Mayfritz Bucag

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