Navarro v. State of New Mexico Department of Public Safety et al

Filing 284

MEMORANDUM OPINION AND ORDER granting 255 Motion for Summary Judgment; granting 254 Motion for Summary Judgment; granting 252 Motion for Summary Judgment; granting 253 Motion for Summary Judgment; denying 276 Motion for Leave to File; deny ing as moot 137 Motion in Limine; denying as moot 138 Motion in Limine; denying as moot 139 Motion in Limine; denying as moot 142 Motion to Bifurcate; denying as moot 145 Motion in Limine; denying as moot 153 Motion in Limine; denying as moot 154 Motion in Limine; denying as moot 155 Motion in Limine; denying as moot 156 Motion in Limine; denying as moot 157 Motion in Limine; denying as moot 158 Motion in Limine; denying as moot 159 Motion to Exclude; denying as moot 160 Motion in Limine; denying as moot 161 Motion in Limine by Circuit Judge Joel M. Carson III (cal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
FELIPE NAVARRO, as Personal Representative
of the Estate of Angel Daniel Navarro, deceased,
VANESSA SOLORZANO, as Guardian of
ARIEL AMIA NAVARRO and
ISABELLA SALEEN NAVARRO, Minors,
MONICA NAVARRO,
FELIPE MEZA NAVARRO,
and FELIPE MIGUEL NAVARRO,
Plaintiffs,

Case No. 2:16-cv-1180-JMC-CG

v.
STATE OF NEW MEXICO
DEPARTMENT OF PUBLIC SAFETY,
BOARD OF COMMISSIONERS
FOR THE COUNTY OF SOCORRO,
OFFICER FRANCIS ALGUIRE, Individually,
OFFICER JOSE CARLOS, Individually,
SHERIFF WILLIAM ARMIJO, Individually,
JOHN DOES 1-10, JANE DOES 1-10,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING STATE DEFENDANTS’ RENEWED MOTION FOR SUMMARY
JUDGMENT AND FOR QUALIFIED IMMUNITY ON PLAINTIFFS’ EXCESSIVE
FORCE CLAIM; GRANTING STATE DEFENDANTS’ RENEWED MOTION FOR
SUMMARY JUDGMENT ON PLAINTIFFS’ STATE LAW AND DERIVATIVE
CLAIMS; GRANTING COUNTY DEFENDANTS’ AMENDED MOTION FOR
PARTIAL SUMMARY JUDGMENT NO. I: DISMISSAL OF FOURTH AMENDMENT
EXCESSIVE FORCE CLAIM; AND GRANTING COUNTY DEFENDANTS’ AMENDED
MOTION FOR PARTIAL SUMMARY JUDGMENT NO. II: DISMISSAL OF
PLAINTIFFS’ STATE LAW CLAIMS
After Angel Daniel Navarro stole a car at knife-point, he led officers on a high-speed chase
on Interstate 25 between Albuquerque and Socorro, New Mexico. Francis Alguire, Jose Carlos,
and William Armijo, all law enforcement officers, shot Mr. Navarro at the conclusion of the
pursuit. Mr. Navarro died at the scene. Plaintiffs now bring claims under 42 U.S.C. § 1983 and

New Mexico state law against the law enforcement officers and derivative claims against the State
of New Mexico Department of Public Safety and the Board of Commissioners for the County of
Socorro. Defendants move for summary judgment based on qualified immunity and other grounds.
For the reasons stated below, this Court grants Defendants’ motions on the basis of qualified
immunity.
I.

Procedural History

On October 17, 2017, Defendants State of New Mexico Department of Public Safety,
Officer Francis Alguire, and Officer Jose Carlos (collectively, “the State Defendants”) filed two
separate motions for summary judgment. The first addressed Plaintiffs’ excessive force claim and
the second addressed Plaintiffs’ state law claims. Similarly, on November 12, 2017, Defendants
Board of Commissioners for the County of Socorro and Sheriff William Armijo (collectively, “the
County Defendants”) filed two separate motions for summary judgment with one addressing the
excessive force claim and the other addressing the state law claims. On May 31, 2018, the Clerk
reassigned this civil action to the undersigned judge. On June 8, 2018, this Court entered an Order
granting Plaintiffs’ motion to amend their complaint, which mooted the motions for summary
judgment.
Plaintiffs’ Second Amended Complaint alleged five counts against Defendants: (1)
excessive force by the individual defendants in violation of 42 U.S.C. § 1983; (2) violations of the
New Mexico Tort Claims Act against the individual defendants for excessive force (battery); (3)
negligent hiring, training, and supervision against the Department of Public Safety and the Board
of Commissioners for the County of Socorro; (4) respondeat superior against the Department of
Public Safety and the Board of Commissioners for the County of Socorro; and (5) loss of
consortium for Plaintiffs Ariel Amia Navarro, Isabella Saleen Navarro, Monica Navarro, Felipe

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Meza Navarro, and Felipe Miguel Navarro. The County Defendants again filed two separate
summary judgment motions on June 21, 2018. The State Defendants filed their two separate
summary judgment motions on June 22, 2018. In their motions, the State Defendants contend the
officers are entitled to summary judgment and qualified immunity on Plaintiffs’ excessive force
claim because their use of force was not excessive under the circumstances. They posit the officers
are entitled to summary judgment on Plaintiffs’ battery claim because their use of force against
Mr. Navarro was necessary and lawful. Finally, they argue the Department of Public Safety is
entitled to summary judgment on Plaintiffs’ negligent hiring, training, and supervision claim,
respondeat superior claim, and loss of consortium claim because those claims are derivative of the
excessive force and battery claims.
The County Defendants argue Sheriff Armijo is entitled to qualified immunity and that he
used an objectively reasonable amount of force, entitling him to dismissal of both the excessive
force and the battery claims. Like the State Defendants, the County Defendants also urge this
Court to dismiss the negligent hiring, training, and supervision claim, respondeat superior claim,
and loss of consortium claim because they are derivative of the excessive force and battery claims.
The Parties subsequently filed responses and replies to the summary judgment motions. These
motions are now fully briefed and are ripe for disposition.
II.

Facts

On May 26, 2016, Pascal Faurie reached for his wallet at a parking lot pay station in
Albuquerque, New Mexico. Faurie Dep. 22:15–23:1, April 14, 2017. Before he could pay,
someone said, “Give me your keys.” Id. Mr. Faurie turned around to find Felipe Navarro standing
beside him. Id. Mr. Navarro pressed a knife against Mr. Faurie’s ribs and told him that he was
“not fucking kidding.” Faurie Dep. 31:5–21. As Mr. Faurie reached for his keys, Mr. Navarro

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said if he did not get the keys, he was “going to fucking stab [Mr. Faurie] in ten seconds.” Id. Mr.
Navarro then began a ten-second countdown. Id. After fumbling to find his keys for nine of those
seconds, Mr. Faurie threw his keys at Mr. Navarro, which hit Mr. Navarro’s face. Faurie Dep.
34:8–35:19. Mr. Navarro lunged at Mr. Faurie, cut Mr. Faurie’s finger, leaned over, and scrambled
to pick up the keys. Id. Mr. Navarro ran to Mr. Faurie’s Toyota Sequoia and drove away. Id.
Mr. Faurie reported the incident to the Albuquerque Police Department, which issued a “be
on the lookout” (BOLO) for the Sequoia. Alguire Dep. 38:8–21. New Mexico State Police
Officers Francis Alguire and Jose Carlos as well as Socorro County Sheriff William Armijo
responded to the BOLO. These officers testified at their depositions that they knew from the
BOLO and further communication with dispatch prior to the traffic stop that a suspect, possibly
armed and dangerous, fled from the scene of an armed robbery involving a stabbing in a stolen
Toyota Sequoia with damage to the left rear taillight. 1 Alguire Dep. 43:24–44:21, 45:21–46:3,
46:22–47:19; Carlos Dep. 57:21–25, 58:13–59:5, 70:2–18; Armijo Dep. 89:21–90:2.
Sheriff Armijo first spotted Mr. Navarro while he was transporting an inmate northbound
on Interstate 25. Def. Sheriff William Armijo’s Answers to Pl.’s First Set of Interrogs. to Def.
William Armijo, at 11. At approximately 12:17 p.m., Sheriff Armijo pulled into the median and
made a U-turn to proceed southbound on Interstate 25. Id. Sheriff Armijo confirmed with dispatch

Officer Alguire testified in his deposition that he learned that the robbery of the vehicle involved
a stabbing prior to the shooting. Alguire Dep. 46:22–47:19. Plaintiffs argue that Defendants knew
at the time of the shooting that the “stabbing” was merely a “minor cut on the finger.” This factual
dispute is not material. Regardless of the injury that Mr. Faurie sustained as a result of Mr.
Navarro’s actions and communicated to law enforcement, under either factual scenario law
enforcement officers knew that Mr. Navarro stole a car, did so with a knife, and had a dangerous
weapon on his person. This Court agrees with Plaintiffs that the officers’ subjective beliefs are
not controlling, and that it must instead look to whether reasonable officers in the same
circumstances would have concluded that a threat existed justifying the particular use of force.
Graham v. Connor, 490 U.S. 386, 394 (1989).
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that the vehicle he spotted was the vehicle Mr. Navarro had stolen. Id. While waiting for backup
to arrive, Sheriff Armijo followed Mr. Navarro at a distance of two to three car lengths without
engaging his siren or lights. Id. Detective Richard Lopez of the New Mexico Institute of Mining
and Technology joined the pursuit. Id. At approximately 12:22 p.m., Mr. Navarro passed Officer
Alguire, who was parked in the median. Alguire COBAN 12:22:34. Officer Aguire drove a cruiser
equipped with a COBAN/dashboard video camera, which captured the entire incident at issue in
this case. Officer Alguire began following Mr. Navarro in the left-hand lane of southbound
Interstate 25. Id. at 12:22:24. Sheriff Armijo requested over the radio that Officer Alguire take
over the lead position of the pursuit. Def. Sheriff William Armijo’s Answers to Pl.’s First Set of
Interrogs. to Def. William Armijo, at 12. Three minutes later, once Officer Carlos joined the
pursuit, Officer Alguire initiated his emergency lights and siren. Alguire COBAN 12:26:24. Mr.
Navarro did not pull over. Instead, he led law enforcement on an approximately four-minute highspeed chase. 2 Id. 12:26:24–12:30:10.
Mr. Navarro eventually stopped at approximately 12:30 p.m. Id. But instead of pulling
off the interstate, Mr. Navarro stopped the Sequoia in the right-hand lane. Id. Five seconds later,
Officer Alguire commanded Mr. Navarro to exit the vehicle—eventually doing so three times. Id.
at 12:30:15–12:30:29. Mr. Navarro did not exit the vehicle. Less than ten seconds later, Sheriff
Armijo used his PA system to command Mr. Navarro to open the door, keep his hands in the air,

Plaintiffs dispute that Mr. Navarro led the officers on a high-speed chase because they claim the
GPS device monitoring the speed on the COBAN video has not been tested. The exact speed at
which Mr. Navarro was driving is not material. The law enforcement officers testified he was
speeding, so much so that Sheriff Armijo’s vehicle could not keep up with the pursuit at times.
Def. Sheriff William Armijo’s Answers to Pl.’s First Set of Interrogs. to Def. William Armijo, at
12. Plaintiffs provide no evidence to rebut the otherwise undisputed fact that Mr. Navarro fled
from law enforcement and did not immediately pull over after officers employed their lights and
sirens.
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and face the front of the vehicle. Id. at 12:30:36–12:30:49. Mr. Navarro still did not exit the
vehicle, but he opened the driver’s side door and looked back at the officers. Id. at 12:30:44.
Approximately forty seconds after Mr. Navarro stopped the vehicle, Officer Alguire shouted, “He
said he’s got a gun.” Id. at 12:30:50. Although Mr. Navarro’s voice is not audible on the COBAN
video, both Officer Alguire and Sheriff Armijo testified that Mr. Navarro made the statement. 3
Alguire Dep. 92:22–93:3; Armijo Dep. 133:3–8.
Sheriff Armijo continued to command Mr. Navarro over the PA to “[F]ace the front of the
vehicle; keep your hands in the air, we don’t want you to get hurt.” Alguire COBAN 12:30:52–
12:31:01. At 12:31 p.m., fifty seconds after stopping his vehicle and approximately twenty-six
seconds after Sheriff Armijo used the PA system, Mr. Navarro stepped out of the Sequoia. Id. at
12:31:01. As he exited, Sheriff Armijo commanded: “Just face the front of the vehicle; put your
hands in the air; put your hands in the air.” Id. at 12:31:01–12:31:06. Rather than obey the
commands, the COBAN video shows that Mr. Navarro kept his right hand under his shirt in his

As will be discussed in more detail below, Plaintiffs argue that the COBAN video, which shows
the incident in its entirety, cannot control the factual record because it does not present all the
relevant facts. In making that argument, they contend that Officer Alguire and Officer Carlos’
depositions “are essential to this case concerning the information that was known by Officer
Alguire and Officer Carlos at the time of the incident.” Yet, at the same time, Plaintiffs argue that
Mr. Navarro did not make the statement that he had a gun because the statement cannot be heard
on the COBAN video. Therefore, according to Plaintiffs, this Court should not credit the deposition
testimony. Although this Court views the evidence in the light most favorable to Plaintiffs, the
law is clear that this Court should view the facts in the light depicted by the videotape, but to the
extent the video does not capture everything that occurred, this Court will review all summary
judgment evidence. Scott v. Harris, 550 U.S. 372, 378 (2007). Plaintiffs retained an expert
witness, Raimond Carrillo, to conduct an analysis of the audio and video recordings. Carillo said
he enhanced the audio and video but could not recover any mention of a gun from Mr. Navarro.
Defendants objected based on Mr. Carrillo’s qualifications to offer an opinion regarding forensic
analysis of the audio and video recordings. Plaintiffs provide no evidence to counter Officer
Alguire’s testimony other than the proffered expert’s opinion that the statement cannot be heard
on the video. With that said, whether Mr. Navarro actually made the statement has no impact on
the result in this case. Mr. Navarro’s actions, regardless of whether he said he had a gun, would
cause a reasonable officer to fear for his life.
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waistband. Id. In response to Mr. Navarro’s actions, Sheriff Armijo told Mr. Navarro to “[k]eep
your hands off that weapon sir; put your hands in the air.” Id. at 12:31:06–12:31:09. Mr. Navarro
then turned his body toward Officer Alguire so that his side faced Officer Alguire. Id. At that
point, Mr. Navarro brought his left hand down together to join his right hand at the waist. Id.
Then, in split-second fashion, he gripped his hands together, raised them upwards, and charged the
officers. Id.
Upon being charged—approximately nine seconds after Mr. Navarro exited the vehicle—
Officers Alguire and Carlos fired multiple shots at Mr. Navarro. Id. at 12:31:10. Mr. Navarro
collapsed to the ground. Id. As he lay on the ground with his hands outstretched in front of him,
Mr. Navarro suddenly pushed his upper body off the ground six seconds after the first round of
shots and looked directly at law enforcement. Id. at 12:31:16. He did this while he moved his
hands down near his waist. Id. Officers Alguire and Carlos, along with Sheriff Armijo, fired
another round of shots, which killed Mr. Navarro. 4 Id. In total, law enforcement shot twentyeight times at Mr. Navarro with the majority of the shots occurring during the second discharge.
Detective Lopez did not fire any shots. Alguire Dep. 125:17–22; Carlos Dep. 120:8–17; Armijo
Dep. 152:14–19. After the shooting, the officers learned that Mr. Navarro did not have a firearm
in his possession and that Mr. Navarro had both methamphetamine and components of marijuana
in his blood. Office of the Medical Investigator: Report of Findings, at 2.

The State Defendants argue in their summary judgment motion that Plaintiffs cannot maintain a
“Failure to Render Aid Claim.” Plaintiffs did not expressly allege a failure to render aid claim in
their Complaint and fail to respond to the argument in their response to the motion for summary
judgment. If Plaintiffs brought such a claim, they have waived it. Pater v. City of Casper, 646
F.3d 1290, 1299 (10th Cir. 2011) (holding that the liberalized pleading rules do not allow plaintiffs
“to wait until the last minute to ascertain and refine the theories on which they intend to build their
case”).
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III.

Applicable Law

A. Summary Judgment
Summary judgment is appropriate “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 party seeking summary judgment bears the initial burden of showing the absence of
any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). A
dispute is genuine when “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party,” and a fact is material when it “might affect the outcome of the suit under the
governing [substantive] law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “If the
movant meets this initial burden, the burden then shifts to the nonmovant to set forth specific facts
from which a rational trier of fact could find for the nonmovant.” Libertarian Party of NM v.
Herrera, 506 F.3d 1303, 1309 (10th Cir. 2007) (internal quotation marks omitted). “[A] party
opposing a properly supported motion for summary judgment may not rest upon the mere
allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a
genuine issue for trial.” Anderson, 477 U.S. at 256. The Court’s role is not to “weigh the evidence
and determine the truth of the matter but to determine whether there is a genuine issue for trial.”
Id. at 249. “The evidence of the non-movant is to be believed, and all justifiable inferences are to
be drawn in his favor.” Id. at 255.
B. Qualified Immunity
Title 42 U.S.C. § 1983 “allows an injured person to seek damages against an individual
who has violated his or her federal rights while acting under color of state law.” Estate of Booker
v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014). An individual defendant named in a § 1983 action
may raise a defense of qualified immunity, which “shields public officials . . . from damages

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actions unless their conduct was unreasonable in light of clearly established law.” Id. Once a
defendant asserts qualified immunity, the plaintiff bears the burden to show that (1) a reasonable
jury could find facts establishing that the defendant violated a federal constitutional or statutory
right, and (2) the right was clearly established at the time of the defendant’s unlawful conduct. Id.
The Court may decide these prongs in either order. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
IV.

Analysis

A. Section 1983 Excessive Force Claim
1. The Law Enforcement Officers Did Not Violate the Fourth Amendment
Plaintiffs brought this action under 42 U.S.C. § 1983, which “allows an injured person to
seek damages against an individual who has violated his or her federal rights while acting under
color of state law.” Estate of Booker, 745 F.3d at 411. A claim of excessive force by a law
enforcement officer implicates the constitutional rights of an individual to be free from
unreasonable search and seizure under the Fourth Amendment. Graham v. Connor, 490 U.S. 386,
394 (1989). To prevail on an excessive force claim under the Fourth Amendment, “plaintiffs must
show both that a ‘seizure’ occurred and that the seizure was ‘unreasonable.’”

Thomas v.

Durastanti, 607 F.3d 655, 664 (10th Cir. 2010). The parties do not dispute that law enforcement
officers seized Mr. Navarro when they shot him. Accordingly, the Court focuses on whether the
uncontested seizure was reasonable.
“Determining whether the force used to effect a particular seizure is ‘reasonable’ under the
Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the countervailing governmental interests at
stake.” Graham, 490 U.S. at 396 (internal quotation marks omitted). The Supreme Court has long
cautioned that the test of objective reasonableness under the Fourth Amendment is not capable of

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precise definition or mechanical application. Id. Instead, a court must give “careful attention to
the facts and circumstances of each particular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or others, and whether
he is actively resisting arrest or attempting to evade arrest by flight.” Id. “The reasonableness of
[the officers’] actions depends both on whether the officers were in danger at the precise moment
that they used force and on whether [the officers’] own reckless or deliberate conduct during the
seizure unreasonably created the need to use such force.” Sevier v. City of Lawrence, 60 F.3d 695,
699 (10th Cir. 1995).
Deadly force is force that creates a substantial risk of causing death or serious bodily harm.
Thomson v. Salt Lake Cty., 584 F.3d 1304, 1313 (10th Cir. 2009). The use of deadly force is
considered reasonable “only if a reasonable officer in Defendants’ position would have had
probable cause to believe that there was a threat of serious physical harm to themselves or to
others.” Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008). In
assessing the degree of threat the suspect poses to officers, this Court considers factors that include,
but are not limited to: (1) whether the officers ordered the suspect to drop his weapon, and the
suspect’s compliance with police commands; (2) whether any hostile motions were made with the
weapon toward the officers; (3) the distance separating the officers and the suspect; and (4) the
manifest intentions of the suspect. Estate of Larsen, 511 F.3d at 1260.
A reviewing court judges the reasonableness of a particular use of force from the
perspective of a reasonable officer on the scene and not with “the 20/20 vision of hindsight.”
Graham, 490 U.S. at 396. “The calculus of reasonableness must embody allowance for the fact
that police officers are often forced to make split-second judgments—in circumstances that are
tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular

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situation.” Id. at 396–97. Significantly, the “reasonableness” inquiry in an excessive force case
is an objective one: “the question is whether the officers’ actions are ‘objectively reasonable’ in
light of the facts and circumstances confronting them, without regard to their underlying intent or
motivation.” Id. at 397. Evil intentions do not make a Fourth Amendment violation out of an
objectively reasonable use of force and good intentions do not make an objectively unreasonable
use of force constitutional. Id. The Fourth Amendment requires only that law enforcement officers
choose a reasonable method to end the threat that the suspect poses to the officers in a force
situation, regardless of the availability of less intrusive alternatives. Id.
In determining the reasonableness of the manner in which a seizure is effected, the Court
balances the nature and quality of the intrusion on the individual’s Fourth Amendment interests
against the importance of the governmental interests alleged to justify the intrusion. Scott v.
Harris, 550 U.S. 372, 383 (2007). In doing so, the Court considers the three non-exclusive factors
set forth in Graham and the four factors articulated in Estate of Larsen to shed light on whether a
constitutional violation occurred. Here, the Court must examine the unique circumstances and the
information known to the officers immediately before they shot Mr. Navarro. The Court analyzes
the Graham factors viewing the facts in the light most favorable to Plaintiffs. “In qualified
immunity cases, this usually means adopting . . . the plaintiff’s version of the facts.” Scott v.
Harris, 550 U.S. 372, 378 (2007). The existence in the record of a video recording capturing the
events in question, however, adds a wrinkle to this analysis. Id. Plaintiffs make no allegations
that any person doctored or altered the recording. Plaintiffs argue, though, the dashboard recording
does not control the factual record. They assert that the officers’ depositions, not the video
recording, controls what the officers knew. Plaintiffs also contend, despite the fact the entire
incident is captured on the recording, the video does not capture the number of shots fired, the

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target on Mr. Navarro’s body that the officers aimed for, the time the injuries occurred, or the
number of officers at the scene.

Moreover, Plaintiffs argue that the video is “subject to

interpretation.”
To the extent that Plaintiffs assert the recording does not control the factual record as to
what the law enforcement officers witnessed once the pursuit began, they are incorrect. Any
suggestion that the COBAN video does not control the factual record is in stark contrast to clear
precedent from both the United States Supreme Court and the United States Court of Appeals for
the Tenth Circuit. Carabajal v. City of Cheyenne, 847 F.3d 1203, 1207 (10th Cir. 2017) (stating
a court “cannot ignore clear, contrary video evidence in the record depicting the events as they
occurred”) (citing Scott, 550 U.S. at 380). Indeed, 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.” Scott, 550 U.S. at 380. The video presents a clear picture of Mr. Navarro’s
actions from the beginning of the pursuit through both rounds of shots fired. At no point does
anyone or anything obstruct the camera’s view of Mr. Navarro. The COBAN video provides an
uninterrupted view of everything that law enforcement encountered during the incident. Plaintiffs
are correct, however, that this Court should rely on record evidence, such as deposition testimony,
to determine what officers knew about Mr. Navarro when the pursuit began. Thus, the Court will
“view[] the facts in the light depicted by the videotape.” Id. at 381. And to the extent the video
did not capture everything that occurred, this Court will view the evidence in the light most
favorable to Plaintiffs. Durastanti, 607 F.3d at 659.
The first Graham factor, the severity of the crime at issue, weighs in favor of the law
enforcement officers. Law enforcement initiated the stop because they were aware Mr. Navarro

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allegedly committed two first degree, violent felonies: armed robbery and aggravated battery. See
NMSA 1978 § 30-16-2 (stating that robbery accomplished with the use of a deadly weapon is a
first degree felony); NMSA 1978 § 30-3-5 (stating that aggravated battery consists of battery with
a deadly weapon). Moreover, once Mr. Navarro decided to flee from a lawful traffic stop, he
committed the additional felony of aggravated fleeing and reckless driving. See NMSA 1978
§ 30-22-1.1 (aggravated fleeing); NMSA 1978 §66-8-113 (reckless driving). These offenses are
enough to tip the first Graham factor in favor of the law enforcement officers. See Henry v. Storey,
658 F.3d 1235, 1239 (10th Cir. 2011) (noting the first Graham factor weighed in favor of officers
where the plaintiff stole a vehicle, which is a felony); Rion v. Medrano, 11-cv-269, 2014 WL
12798359 (D.N.M. Jan. 30, 2014) (noting that aggravated battery with a deadly weapon is an
inherently violent crime when analyzing the first Graham factor); Plumhoff v. Rickard, 134 S. Ct.
2012, 2022 (2014) (holding that law enforcement officers acted reasonably when the officers used
deadly force to terminate a high-speed chase that lasted for over five minutes and posed a grave
public safety risk).
The particular felony of fleeing from a lawful traffic stop dovetails with the third Graham
factor; whether the suspect is actively resisting arrest or attempting to evade arrest by flight. In
this case, Mr. Navarro fled from the police on Interstate 25—a busy Interstate highway.
Accordingly, the third Graham factor also weighs in favor of the law enforcement officers.
The second Graham factor, whether the suspect poses an immediate threat to the safety of
the officers or others, clearly favors the law enforcement officers and is critical to the outcome
here. The Court reaches this conclusion after first considering whether the law enforcement
officers “could have reasonably perceived [they were] in danger at the precise moment that [they]
used force and whether [their] own reckless or deliberate conduct (as opposed to mere negligence)

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unreasonably created a need to use force.” Durastanti, 607 F.3d at 664. Judging the matter on
this basis, the law enforcement officers did not violate the Fourth Amendment. The recording
makes clear Mr. Navarro posed an actual and imminent threat to the lives of other civilian motorists
and to the officers involved in the chase. Id.
Once Mr. Navarro decided to stop the vehicle after leading the officers on a high-speed
chase, he did not pull off to the side of the road. Rather, he stopped his car in the right lane of the
interstate. He remained in the vehicle for fifty seconds, although the law enforcement officers
repeatedly ordered him to exit the vehicle. Once he exited the vehicle, Mr. Navarro reached for
his waistband in a manner that indicated he was reaching for a weapon despite Sheriff Armijo’s
instruction to keep his hands off that weapon. He then charged at the law enforcement officers.
Law enforcement fired, marking the first occasion that Plaintiffs allege excessive force. While on
the ground, Mr. Navarro lifted up his body, looked directly at the law enforcement officers, and
again reached for his waistband. The law enforcement officers then fired additional shots, marking
the second occasion that Plaintiffs allege excessive force. Based on these facts—as clearly shown
in the COBAN video—a reasonable officer in this position “would have feared for his life” before
both the first and the second round of shots. Cordova v. Aragon, 569 F.3d 1183, 1190 (10th Cir.
2009); see also Anderson v. Russell, 247 F.3d 125, 130 (4th Cir. 2001) (holding summary judgment
appropriate for officers where officers shot a plaintiff when that plaintiff lowered his hands in the
direction of his waistband in disregard of the officers’ orders); Salazar-Limon v. City of Houston,
137 S. Ct. 1277, 1281 (Sotomayor, J., dissenting) (“Indeed, the courts below needed to ask only
one question: Did Salazar-Limon turn and reach for his waistband, or not? If he did, Thompson’s
use of force was reasonable.”). Accordingly, the law enforcement officers acted reasonably in
firing both rounds of shots at Mr. Navarro. Even if they were mistaken as to the imminence of the

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threat to their safety, the law of this Circuit makes clear “[a]n officer may be found to have acted
reasonably even if he has a mistaken belief.” Durastanti, 607 F.3d at 666. To be sure, a
“reasonable officer need not await the glint of steel before taking self-protective action; by then, it
is often too late to take safety precautions.” Estate of Larsen, 511 F.3d at 1260.
As to the first round of shots fired, Plaintiffs contend that the officers’ own reckless or
deliberate conduct unreasonably created the need to use force. Specifically, Plaintiffs contend the
officers acted recklessly when they repeatedly ordered Mr. Navarro to exit the vehicle. Instead,
Plaintiffs assert Officer Alguire should have commanded Mr. Navarro to stay in the vehicle, turn
off the car, and throw the car key to allow communication to begin. Plaintiffs argue that Officer
Alguire’s decision to order Mr. Navarro out of the car immediately “triggered the use of force”
that would not have occurred had he first asked Mr. Navarro to turn off the car and throw the car
key out the door. The Court concludes Officer Alguire and Sheriff Armijo did not act recklessly
when they ordered Mr. Navarro to immediately exit the car. It is well-settled that during a lawful
traffic stop, officers may order passengers out of a vehicle as a matter of officer safety. Maryland
v. Wilson, 519 U.S. 408 (1997); see also United States v. Ladeaux, 454 F.3d 1107, 1110 (10th Cir.
2006).
In support of their contention that the use of force would not have been needed had the
officers asked Mr. Navarro to turn his car off and throw his keys out the window, Plaintiffs cite
Myers v. Oklahoma County Board of County Commissioners, 151 F.3d 1313 (10th Cir. 1998).
That case, however, did not involve a person in a vehicle but instead involved an apartment
building at which the plaintiff was staying. In Myers, law enforcement officers spent hours
attempting to resolve a situation through non-confrontational communication with the plaintiff to
no avail before using force. Nothing in Myers requires that officers spend hours attempting to

15

resolve a situation through non-confrontational communication, whether in an apartment building
or in a vehicle. The case is particularly inapposite in this factual scenario where Plaintiff led
officers on a high-speed chase down a busy interstate highway. The chase gave officers a strong
incentive to immediately separate Plaintiff from his vehicle to prevent further danger to other
drivers. Certainly, the facts presented here do not require the prolonged negotiations that took
place in Myers. In this case, the law enforcement officers did not act recklessly in ordering Mr.
Navarro out of the vehicle. Accordingly, the officers’ conduct did not unreasonably create the
need to use force.
Moreover, Plaintiffs’ additional objections to the second round of shots are immaterial to
the question of whether law enforcement officers could have reasonably perceived they were in
danger at the precise moment they used force. Despite the clear and irrefutable video of the
shooting, Plaintiffs contend the alleged moments in between the first and second round of shots
are in dispute. Specifically, Plaintiffs cite the medical investigator’s findings (which do not
definitively state or suggest Mr. Navarro’s movements were involuntary) to argue that the bullet
wounds show that Mr. Navarro’s movement in the six seconds between the first and second round
of shots were involuntary spasms rather than a threatening move against the officers. In addition,
Plaintiffs seek to use expert testimony to establish that Mr. Navarro was no longer a threat to the
law enforcement officers after the first round of shots. 5

Plaintiffs retained an expert, Roger Clark, as a police procedures expert. Experts such as Clark
may opine on whether a municipality is liable for failing to properly train or supervise an officer
with respect to the use of force. L’Esperance v. Mings, 02-cv-258, 2003 WL 25692557, at *3–4
(D.N.M. July 14, 2003). Any opinion that officers acted unconstitutionally or exercised excessive
force is not appropriate. Id.; Medina v. Cram, 252 F.3d 1124, 1133 (10th Cir. 2001). It would also
be inappropriate for Clark to offer opinions as to Mr. Navarro’s state of mind and any medical
diagnosis. Defendants likewise retained use of force experts. In this case, the entire incident was
captured on video. The video provides clear justification for the use of force in this case.
5

16

Examining medical evidence after the shooting to determine whether Mr. Navarro was
actually incapacitated and his body was engaging in involuntary spasms is exactly the type of
“20/20 vision of hindsight” the Supreme Court prohibits. Graham, 490 U.S. at 396. What the
officers witnessed in that six seconds is not in dispute. The COBAN video shows that after the
first round of shots, Mr. Navarro again reached for his waistband while looking at the officers.
Existing case law clearly demonstrates that an officer in the same position would reasonably
believe his life was still in danger and Mr. Navarro was still a threat. Anderson, 247 F.3d at 130
(holding summary judgment appropriate for officers where officers shot a plaintiff when that
plaintiff lowered his hands in the direction of his waistband in disregard of the officers’ orders);
see also Salazar-Limon, 137 S. Ct. at 1281 (Sotomayor, J., dissenting) (“Indeed, the courts below
needed to ask only one question: Did Salazar-Limon turn and reach for his waistband, or not? If
he did, Thompson’s use of force was reasonable.”). And as mentioned above, “[a]n officer may
be found to have acted reasonably even if he has a mistaken belief.” Durastanti, 607 F.3d at 666.
In this case, the video shows Mr. Navarro reaching for his waistband a second time. Only seconds
before, Mr. Navarro had reached for his waistband and charged at the officers. An officer who
faces such a situation in a six second time period does not have the time to medically assess
whether a movement is voluntary or involuntary. The officers here would have little to no reason
to infer that it was Mr. Navarro’s intention to surrender. Indeed, all signs pointed toward a
continuation of the threat. See Ambruster v. Marguccio, 05-cv-344J, 2006 WL 3488969, *6 (W.D.
Pa. Dec. 4, 2006) (concluding that a reasonable officer observing all the facts surrounding the
plaintiff’s arrest, especially the allegedly involuntary movements of Plaintiff’s body, could have
reasonably believed the force used was necessary).

17

While forcefully and correctly arguing that the law enforcement officers’ subjective
thoughts are not relevant to this Court’s analysis, Plaintiffs seek to inject Mr. Navarro’s possible
thoughts into the analysis. Plaintiffs speculate that Mr. Navarro may have been confused and
disoriented by the lights on the police cruisers. Plaintiffs additionally surmise that maybe Mr.
Navarro did not understand the orders the law enforcement officers shouted to him. Just as this
Court does not consider the law enforcement officers’ expressed subjective thoughts, it also does
not consider possible thoughts that Plaintiffs are not even sure Mr. Navarro had at the time of the
incident. 6 See Wilson v. Meeks, 52 F.3d 1547, 1553–54 (10th Cir. 1995) (“Qualified immunity
does not require that the police officer know what is in the heart or mind of his assailant. It requires
that he react reasonably to a threat.”). What matters is what a reasonable officer on the scene would
think and how that officer would react to a threat. And in this case, a reasonable officer confronted
with a man that leads officers on a high speed chase, stops his vehicle in the middle of the interstate,
waits almost a minute to get out, ignores all officer commands, puts his hands at his waist, charges
at the officers before going down, and ultimately reaches for his waist again while looking right at
the officers, would have reason to believe his life was in danger.
Plaintiffs, in their briefs, cite to many cases to argue the officers employed an unreasonable
amount of force. The facts of this case are distinguishable from those cited by Plaintiffs. In
Margeson v. White County, Tennessee, 579 F. App’x. 466, 468 (6th Cir. 2014), three officers fired

The County Defendants retained an expert to offer opinions based upon his review of depositions
of Mr. Navarro’s medical providers and family members, as well as records leading up to the
shooting. This expert, Dr. Daniel Duhigg, planned to testify at trial that Mr. Navarro had a number
of risk factors for suicide and that Mr. Navarro’s use of various illegal narcotics would have
impacted his judgment. The County Defendants believe that Dr. Duhigg would testify that Mr.
Navarro’s actions are consistent with “suicide by cop.” Whatever Mr. Navarro’s subjective
thoughts were at that moment are not material to the question this Court must answer.
Accordingly, this Court will not consider Dr. Duhigg’s testimony.
6

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at Mr. Margeson as many as 43 times. In that case, the Court acknowledged that the plaintiff
credibly alleged that the officers continued to shoot Mr. Margeson after he no longer posed any
reasonable threat. Margeson, 579 F. App’x at 472. The officers’ assertion that Mr. Margeson
pointed a second gun after he fell to the ground was in dispute. Id. The court also suggested a
dispute existed as to whether the two officers who did most of the shooting after the initial round
of shots ever saw a gun or perceived any threat after the first round of shots. Id. In addition, the
officers provided no explanation in their deposition for the reasonableness of the final twelve shots.
Id. By contrast, in this case, the facts captured by Officer Alguire’s COBAN video show that Mr.
Navarro’s hands were undisputedly headed toward his waistband right before law enforcement
shot him. And the video is bolstered by, the law enforcement officers’ explanation of the
reasonableness of their shots.
Plaintiffs allege that Sheriff Armijo automatically discharged too many shots “without
stopping or even pausing between rounds to assess the situation and independently justify each
time that he used deadly force against Mr. Navarro.” To end a threat to officer or public safety,
an officer may shoot until the threat has ended. Angilau v. United States, 2:16-cv-992, 2018 WL
1278393, *4 (D. Utah March 9, 2018) (citing Plumhoff, 134 S. Ct. at 2022). In Plumhoff, the
Supreme Court rejected the contention that, even if the use of deadly force was permissible, the
petitioners acted unreasonably in firing a total of fifteen shots. The Court explained that it “stands
to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to
public safety, the officers need not stop shooting until the threat has ended.” Plumhoff, 134 S. Ct.
at 2022. The Court continued, “if lethal force is justified, officers are taught to keep shooting until
the threat is over.” Id. In Plumhoff, during the ten-second span when the shots were fired, the
suspect never abandoned his attempt to flee. Id. Here, as in Plumhoff, it would be different if the

19

first round had clearly incapacitated the suspect or if he had clearly given himself up. But that is
not what happened in either case.
Plaintiffs attempt to distinguish Plumhoff by stating that the case speaks in terms of “public
safety” rather than “officer safety.” But Plumhoff involved a similar scenario to the present case.
Rickard engaged in a five-minute car chase, including the passing of other motorists, which “posed
a grave public safety risk” until his car came to a temporary standstill and officers began shooting.
Significantly, the second Graham factor speaks in terms of both officer and public safety. Thus,
Plumhoff’s holdings apply to this case and the law enforcement officers are not required to stop
shooting until the threat against their lives is over.
Next, Plaintiff cites Brockington v. Boykins, 637 F.3d 503 (4th Cir. 2011), a factually
inapposite case involving an execution-style officer shooting. In Brockington, the Complaint
alleged an officer fired two shots at Brockington. Brockington, 637 F.3d at 505. The first shot hit
his left hand, almost severing a finger. Id. The second shot hit his upper abdomen and caused
Brockington to fall from some stairs onto a cement landing. Id. Brockington could not get up and
was lying on his back. Id. The officer then came and stood directly over him and fired at least six
shots at close range. Id. Brockington did nothing to defend himself except raise his hands and
sway them from side to side to protect his face. Id. The officer then fled the scene. Id.
The facts of Brockington are not present in this case. Here, Mr. Navarro was not lying
helpless on the ground prior to the second round of shots. Rather, he moved his body—
specifically, his hands toward his waistband—an action courts have held may justify the use of
deadly force. Anderson, 247 F.3d at 130; Salazar-Limon, 137 S. Ct. at 1281 (Sotomayor, J.,
dissenting). Unlike the officer in Brockington, a reasonable law enforcement officer in this case
would have feared for his life prior to taking the second round of shots.

20

Plaintiffs additionally cite Graves v. Zachary, 277 F. App’x. 344 (5th Cir. 2008) for the
same proposition. But again, no video captured the incident, so the underlying facts were in
dispute. The impact of the first shot on Graves was disputed. Graves, 277 F. App’x. at 346. The
officers said that Graves did not slump down or drop his weapon after the first shot, but Graves
said that he was incapacitated and an officer shot him in the chest after a short delay. Id. Unlike
this case, under Graves’ version of the facts, he was incapacitated and not attempting to aim or
draw his weapon at the officers.
Finally, Plaintiffs cite David v. City of Bellevue, Ohio, 706 F. App’x 847 (6th Cir. 2017).
In David, the parties presented no video evidence. Witness testimony diverged on whether;
(1) David pointed a gun at an officer; (2) David raised his arm; and (3) David swung his arm out
toward another officer while he was down. David, 706 F. App’x at 851–53. The Sixth Circuit
stated the shooting would be unjustified if he had not raised his arm. Id.
David is not persuasive in the context of the present facts. Here, the COBAN video
demonstrates that a reasonable officer faced with the same situation would believe that his life was
in danger right before the second round of shots. In the video, Mr. Navarro does not appear
incapacitated when his body lifts off the ground and his hands go to his waist. The cases Plaintiffs
cite make the assumption that the officers knew the plaintiff was incapacitated at the second round
of firing. That is not the factual scenario in this case where a plain and fair viewing of the video
shows what could reasonably be perceived as a hostile move by Plaintiff at the time of the second
round of shots.
Having concluded the Graham factors weigh in favor of Defendants, the Court now turns
to the four factors articulated in Estate of Larsen. Applying the four factors, this Court concludes
that the degree of threat, viewed alongside the Graham factors, favors granting qualified immunity

21

to the officers. These factors indicate “from the perspective of a reasonable officer on the scene,
the totality of circumstances justified the use of force.” Thomson, 584 F.3d at 1319. First, the
officers ordered Mr. Navarro to get out of his vehicle, and Sheriff Armijo expressly ordered him
not to touch his weapon. Rather than comply and put his hands up, Mr. Navarro reached toward
his waistband as if grabbing something and charged toward the officers in complete disregard of
law enforcement commands. Second, Mr. Navarro twice reached for his waistband—a hostile
motion. Anderson, 247 F.3d at 130; Salazar-Limon, 137 S. Ct. at 1281 (Sotomayor, J., dissenting).
Third, the officers were not far from the suspect and shielded only by car doors that were not bullet
proof. Fourth and finally, Mr. Navarro gave no indication that he was surrendering. In fact, the
video appears to show the opposite. Accordingly, with the totality of the factual circumstances in
mind, the Estate of Larsen factors—viewed alongside the variables that Graham specifically
identifies—powerfully support the officers’ position that their use of deadly force was reasonable
in this case.
For the reasons stated above, Plaintiffs have failed to establish a constitutional violation
under the Fourth Amendment because they did not demonstrate the shooting of Mr. Navarro was
objectively unreasonable. As a result, they cannot defeat the officers’ defense of qualified
immunity.
2. The Conduct Was Not Clearly Established
Even if the officers’ conduct constituted excessive force under the Fourth Amendment, the
law was not clearly established at the time of the shooting that their conduct was unlawful.
“Typically, a preexisting Supreme Court or Tenth Circuit decision, or the weight of authority from
other circuits, must make it apparent to a reasonable officer that the nature of his conduct is
unlawful.” Carabajal, 847 F.3d at 1210. Although Supreme Court “caselaw does not require a

22

case directly on point for a right to be clearly established, existing precedent must have placed the
statutory or constitutional question beyond debate.” Kisela v. Hughes, 138 S. Ct. 1148, 1152
(2018). 7 “In other words, immunity protects all but the plainly incompetent or those who
knowingly violate the law.” Id. The Supreme Court has made clear that a court should not “define
clearly established law at a high level of generality.” Id.
“[S]pecificity is especially important in the Fourth Amendment context, where the Court
has recognized that it is sometimes difficult for an officer to determine how the relevant legal
doctrine, here excessive force, will apply to the factual situation the officer confronts.” Id. Use
of excessive force is an area of the law “in which the result depends very much on the facts of each
case,” and thus law enforcement officers are entitled to qualified immunity unless existing
precedent “squarely governs” the specific facts at issue. Mullenix v. Luna, 136 S. Ct. 305, 309
(2015) (internal quotation marks omitted and emphasis deleted). “Precedent involving similar
facts can help move a case beyond the otherwise hazy border between excessive and acceptable
force and thereby provide an officer notice that a specific use of force is unlawful.” Kisela, 138
S. Ct. at 1153 (internal quotation marks omitted).

In this Court’s June 8, 2018 Order Granting Plaintiffs’ Motion for Leave to File a Second
Amended Complaint, this Court stated, “Any renewed motions for summary judgment and
responses shall address the United States Supreme Court’s decision in Kisela v. Hughes, 138 S.
Ct. 1148 (2018). Plaintiffs did not reference Kisela in their response briefs. After Defendants
pointed this out in their reply briefs, Plaintiffs filed a Motion Seeking Leave to File Surreplies. In
that motion, Plaintiffs argue they addressed Kisela by inserting language from Hope v. Pelzer, 536
U.S. 730 (2002), to show an alleged conflict between Supreme Court precedent concerning clearly
established law for qualified immunity. Plaintiffs seek to file a surreply to “clarify” their position
on Kisela and to address the alleged conflict between Kisela and Hope. This Court denies
Plaintiffs’ Motion Seeking Leave to File Surreplies. Kisela clearly compels this Court to grant
qualified immunity where no existing precedent places the statutory or constitutional question
beyond debate. That is the case here. No officer would have known that shooting Mr. Navarro in
the interest of safety would violate the Fourth Amendment.
7

23

Although general statements of the law can potentially give clear warning to officers, the
general rules set forth in Graham do not by themselves create clearly established law outside an
obvious case. Id. “Where constitutional guidelines seem inapplicable or too remote, it does not
suffice for a court simply to state that an officer may not use unreasonable and excessive force,
deny qualified immunity, and then remit the case for a trial on the question of reasonableness.” Id.
A law enforcement officer “cannot be said to have violated a clearly established right unless the
right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes
would have understood that he was violating it.” Plumhoff, 134 S. Ct. at 2023.
The officers in this case shot Mr. Navarro when he presented a danger to public and officer
safety. Before the first round of shots, Mr. Navarro disregarded the officers’ commands, reached
for his waistband, and charged at the officers. No reasonable officer would believe such a shooting
would violate the Fourth Amendment. Mr. Navarro lay on the ground before the second round of
shooting. However, he again reached for his waistband as his body lifted off the ground mere
seconds after he had reached for his waistband and charged at the officers. Anderson, 247 F.3d at
130 (holding summary judgment appropriate for officers where officers shot a plaintiff when that
plaintiff lowered his hands in the direction of his waistband in disregard of the officers’ orders).
Plaintiffs incorrectly define the clearly established law as the right of an incapacitated
individual to be free from a second discharge of bullets. As discussed in detail above, a reasonable
officer on the scene would not conclude the first round of shots incapacitated Mr. Navarro. That
much is clear from the COBAN video. Mr. Navarro was armed with a knife, acted as if he had a
gun on his person, was within close range of the officers, and ignored the officers’ orders not to
reach down for his weapon. Mr. Navarro’s actions in the six seconds between the first and second
round of shots could reasonably make an officer fear for his life.

24

Under the circumstances present in this case, the Court holds that the Fourth Amendment
did not prohibit the law enforcement officers from using the deadly force they employed.
Alternatively, this Court concludes that the law enforcement officer Defendants are entitled to
qualified immunity for the conduct at issue because they violated no clearly established law.
B. New Mexico Tort Claims Act
Under New Mexico law, “[f]or there to be an assault, there must have been an ‘act, threat
or menacing conduct which causes another person to reasonably believe that he is in danger of
receiving an immediate battery.’” Fuerschbach v. Sw. Airlines Co., 439 F.3d 1197, 1208 (10th
Cir. 2006) (quoting NMSA 1978 § 30-3-1(B)). “Battery occurs when an individual ‘acts intending
to cause a harmful or offensive contact with the person of the other or a third person, or an
imminent apprehension of such a contact, and . . . an offensive contact with the person of the other
directly or indirectly results.” Id. at 1208–09 (omission in original) (quoting State v. Ortega, 113
N.M. 437, 827 P.2d 152, 155 (1992)).
Because the Court concluded that Defendants did not employ unconstitutionally excessive
force, Defendants cannot be liable for assault and battery under New Mexico law. See State v.
Gonzales, 97 N.M. 607, 642 P.2d 210, 213 (Ct. App. 1982) (“Officers, within reasonable limits,
are the judges of the force necessary to enable them to make arrests. . . . When acting in good
faith, the courts will afford them the utmost protection . . . .”) (quoting Mead v. O’Connor, 66
N.M. 170, 344 P.2d 478 (1959)); State v. Kraul, 90 N.M. 314, 563 P.2d 108, 112–13 (Ct. App.
1977). As discussed in detail above, even construing the facts in Mr. Navarro’s favor, this Court
cannot conclude that Defendants used more force than reasonably necessary in this situation and
therefore cannot be liable for assault and battery under New Mexico law. See Park v. Gaitan, 690
F. App’x 724, 744 (10th Cir. 2017) (stating where the district court’s Fourth Amendment analysis

25

concluded the defendants did not employ unconstitutionally excessive force, those defendants
could not be liable for assault and battery under New Mexico law). Accordingly, Defendants are
entitled to summary judgment on the New Mexico Tort Claims Act assault and battery claims.
C. Negligent Hiring, Training, and Supervision
Plaintiffs did not specify whether they assert their claim for negligent hiring, training, and
supervision pursuant to either federal or state law. Under either, however, their claim fails. In this
case, this Court has held that the individual law enforcement officers did not violate the Fourth
Amendment.

Under federal law, where an officer did not commit the alleged underlying

constitutional violation, “there cannot be an action for failing to train or supervise the officer.”
Jones v. Norton, 809 F.3d 564, 575 (10th Cir. 2015). Under state law, “immunity is not waived
for negligent training and supervision standing alone; such negligence must cause a specified tort
or violation of rights.” McDermitt v. Corrections Corp. of Am., 112 N.M. 247, 814 P.2d 115, 116
(Ct. App. 1991). Because both the foregoing federal and state appellate decisions make clear that
a negligent hiring, training, and supervision claim is derivative, this Court grants summary
judgment on Count III of Plaintiffs’ Second Amended Complaint.
D. Respondeat Superior
In the Second Amended Complaint, Plaintiffs again allege that the Department of Public
Safety and the County Commission were responsible for the hiring, training, instructing,
supervising, and disciplining of the individual law enforcement officer Defendants and that they
are responsible to Plaintiffs for any harm caused by their employees or agents acting within the
course and scope of their employment or agency.
The Supreme Court has long held that “a municipality can be found liable under § 1983
only where the municipality itself causes the constitutional violation at issue.” City of Canton,

26

Ohio v. Harris, 489 U.S. 378, 385 (1989). Specifically, respondeat superior or vicarious liability
will not attach under § 1983. Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658, 694–95
(1978).
New Mexico courts have stated that an “entity or agency can only act through its
employees.” Abalos v. Bernalillo Cnty. Dist. Atty’s Office, 105 N.M. 554, 734 P.2d 794, 799 (Ct.
App. 1987). The waiver of immunity requires negligence or conduct of public employees while
acting within the scope of their duties. Id.
As discussed above, the law enforcement officer Defendants did not violate Mr. Navarro’s
constitutional rights. Because respondeat superior liability does not attach under federal law, and
because Defendants did not violate Mr. Navarro’s constitutional rights, and thus cannot be held
liable under state law for respondeat superior, this Court grants summary judgment on Count IV
of Plaintiffs’ Second Amended Complaint.
E. Loss of Consortium
In New Mexico, loss of consortium is derivative of other injuries and is not an injury in
and of itself. Fitzjerrell v. City of Gallup ex rel. Gallup Police Dep’t., 134 N.M. 492, 79 P.3d 836,
841 (Ct. App. 2003). Because this Court concludes there is no underlying constitutional violation
and loss of consortium is a derivative claim, this Court grants summary judgment on Count V of
Plaintiffs’ Second Amended Complaint.
V.

Conclusion

For the reasons set forth above, this Court GRANTS State Defendants’ Renewed Motion
for Summary Judgment and for Qualified Immunity on Plaintiffs’ Excessive Force Claim (Doc.
255); GRANTS State Defendants’ Renewed Motion for Summary Judgment on Plaintiffs’ State
Law and Derivative Claims (Doc. 254); GRANTS County Defendants’ Amended Motion for

27

Partial Summary Judgment No. I: Dismissal of Fourth Amendment Excessive Force Claim (Doc
252); GRANTS County Defendants’ Amended Motion for Partial Summary Judgment No. II:
Dismissal of Plaintiffs’ State Law Claims (Doc. 253); and DENIES Plaintiffs’ Motion Seeking
Leave to File Surreplies (Doc. 276). Because this Court grants the Motions for Summary
Judgment, it DENIES AS MOOT the County Defendants’ Daubert Motion to Exlcude Testimony
of Raimund Carrillo (Doc. 137); DENIES AS MOOT the County Defendants’ Daubert Motion to
Affirmatively Admit Testimony by Dr. Daniel Duhigg (Doc. 138); DENIES AS MOOT the
County Defendants’ Daubert Motion to Exclude the Testimony of Roger Clark (Doc. 139);
DENIES AS MOOT the County Defendants’ Motion for Separate Trials (Doc. 142); DENIES AS
MOOT the County Defendants’ Daubert Motion to Exclude Testimony of Walter Lierman, Ph.D.
(Doc. 145); DENIES AS MOOT Plaintiffs’ Motion in Limine to Exclude All Testimony and
Evidence Related to Angel Daniel Navarro’s Mental Health History, Drug Usage History, and
Conversations with Vanessa Solorzano (Doc. 153); DENIES AS MOOT Plaintiffs’ Daubert
Motion and Motion in Limine to Strike the Expert Testimony of Dr. Daniel Duhigg (Doc. 154);
DENIES AS MOOT Plaintiffs’ Motion in Limine to Exclude All Testimony and Evidence Prior
to Individual Defendants’ Involvement and Related to Information the Individual Defendants Were
Not Aware At the Time of the Shooting (Doc. 155); DENIES AS MOOT Plaintiffs’ Motion in
Limine to Exclude Testimony Concerning Allegations of Angel Daniel Navarro’s Purported
Suicide By Law Enforcement Based Solely on Angel Daniel Navarro’s Actions (Doc. 156);
DENIES AS MOOT Plaintiffs’ Daubert Motion and Motion in Limine to Strike the Expert
Testimony of Ron McCarthy (Doc. 157); DENIES AS MOOT Plaintiffs’ Daubert Motion and
Motion in Limine to Strike the Expert Testimony of Dr. Ron Martinelli (Doc. 158); DENIES AS
MOOT the State Defendants’ Daubert Motions to Exclude the Testimony and Opinions of Roger

28

Clark (Doc. 159); DENIES AS MOOT the State Defendants’ Motion in Limine No. 1: To Exclude
Evidence that Plaintiffs’ Decedent was Unarmed during Confrontation (Doc. 160); and DENIES
AS MOOT the State Defendants’ Motion in Limine No. 2: To Exclude Evidence That Plaintiffs’
Decedent’s Movements Were “Involuntary” (Doc. 161).
IT IS SO ORDERED.
Pursuant to Federal Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
in this matter. It is further ORDERED that this case be DISMISSED and STRICKEN from the
active docket of this Court.
Entered for the Court
this the 30th day of August, 2018
/s/ Joel M. Carson III______
Joel M. Carson III
United States Circuit Judge
Sitting by Designation

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