Trujillo v. City of Hobbs et al

Filing 81

Proposed Findings and Recommended Disposition by Chief Magistrate Judge Carmen E. Garza. The Court RECOMMENDS that 35 Defendants' Motion for Summary Judgment be DENIED. Objections to the PF&RD are due by 9/23/2019. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (ag)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
NATHANIEL TRUJILLO,
Plaintiff,
v.

No. CV 17-53 JTM/CG

CITY OF HOBBS, et al.,
Defendants.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Defendants City of Hobbs and Royal
Hopper’s Motion for Summary Judgment and Memorandum in Support (the “Motion”),
(Doc. 35), filed August 16, 2017; Plaintiff Nathaniel Trujillo’s Response to Defendants’
Motion for Summary Judgment and Memorandum in Support (the “Response”), (Doc.
67), filed February 1, 2019; and Defendants’ Reply in Support of Motion for Summary
Judgment (the “Reply”), (Doc. 74), filed March 7, 2019.
On August 5, 2019, United States District Judge J. Thomas Marten referred this
matter to the undersigned to make findings of fact, conduct legal analysis, and
recommend an ultimate disposition. (Doc. 79). After considering the parties’ filings, the
record, and the relevant law, the Court RECOMMENDS that Defendants’ Motion for
Summary Judgment and Memorandum in Support, (Doc. 35), be DENIED.
I.

Background

On January 16, 2015, Defendant Royal Hopper was working as a patrol officer
for the City of Hobbs Police Department. (Doc. 35 at 2). In the early hours of January
17, 2015, he received a call on his radio indicating that a fight was in progress at
Diamond Lil’s, a local bar in Hobbs, New Mexico. Id. Officer Hopper arrived at Diamond

Lil’s in his patrol vehicle without activating his lights or sirens. Id. As he approached,
Officer Hopper saw a “crowd of people on the side of the bar.” Id. Officer Hopper pulled
into the area where the crowd was located, and witnessed people starting to walk away.
Id. Upon entering the parking lot, Officer Hopper believed the fight that resulted in his
initial dispatch to the scene was over. Id.
Officer Hopper exited his patrol vehicle to ensure the scene was secure and no
fighting continued. (Doc. 35 at 3). Officer Hopper was in full uniform, with his badge and
duty weapon. Id. at 4. As he walked to the back parking lot to assess the scene, Officer
Hopper did not use his flashlight because “he did not want people to see him from afar.”
(Doc. 74 at 10). After viewing at least one individual with a rifle and yelling something
akin to “Freeze, HPD,” Officer Hopper fired his duty weapon “six to eight times.” (Doc.
67 at 14). Plaintiff Nathaniel Trujillo was shot twice in the upper thigh and Kyle Laughrin
was shot once. (Doc. 1 at 5). Mr. Trujillo was severely injured as a result of the gunshot
wounds and was later airlifted to University Medical Center in Lubbock, Texas, for
emergency medical treatment. Id. at 6.
In his Complaint, Mr. Trujillo alleges five causes of action against the City of
Hobbs (the “City”) and Officer Hopper. (Doc. 1 at 27-31). Defendants now seek
summary judgment on the basis of qualified immunity on each of Mr. Trujillo’s five
claims. (Doc. 35 at 1). In response to Defendants’ Motion, Mr. Trujillo has abandoned
one of his claims − a 42 U.S.C. § 1983 action alleging Officer Hopper violated his
Fourteenth Amendment right to receive medical aid after being shot. (Doc. 67 at 2, n. 1).
Thus, what remains before the Court are: two claims against Officer Hopper in his
individual capacity, including one count of battery under the New Mexico Tort Claims

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Act (“NMTCA”) and one Fourth Amendment claim for the use of excessive force under
42 U.S.C. § 1983 (“Section 1983”); and two claims against the City, including one count
of “negligence resulting in battery” under the NMTCA and one count of Section 1983
Monell liability under a theory of failure to train and the excessive use of force under the
Fourth and Fourteenth Amendments. (Doc. 1 at 27-32).
In their Motion, Defendants have divided the “undisputed material facts” of this
case into four subsections, each section detailing a different actor’s or witness’s
“recollection of events” from the early morning hours of January 17, 2015. (Doc. 35 at 2)
(“Officer Hopper’s Recollection of Events”); id. at 5 (“Events described by Kyle
Laughrin”); id. at 6 (“Adam McGranahan’s Recollection of Events”); id. at 8 (“Plaintiff’s
Recollection of Events”). Defendants then argue that under each of the factual
recitations provided, it remains undisputed that: (1) Officer Hopper announced his
presence; and (2) the gun pointed in his direction was not lowered when Officer Hopper
issued his commands. Id. at 16-17. Essentially, Defendants argue, based on these two
undisputed facts alone, the Court should conclude that Officer Hopper’s decision to
shoot Mr. Trujillo was reasonable and he is therefore entitled to qualified immunity as a
matter of law. Id.
II.

Legal Standard

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). A fact is “material” if it could have an effect on the outcome
of the lawsuit. Smothers v. Solvay Chems., Inc., 740 F.3d 530, 538 (10th Cir. 2014)
(citation omitted). A dispute over a material fact is “genuine” if the evidence presented

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could allow a rational jury to find in favor of the non-moving party. E.E.O.C. v.
Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000) (internal citation
omitted). “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.’” Harapat v. Vigil, 676
F. Supp. 2d 1250, 1258-59 (D.N.M. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986)).
In considering a summary judgment motion, the court views the facts in the light
most favorable to the non-moving party and draws all reasonable inferences in his or
her favor. Shero v. City of Grove, 510 F.3d 1196, 1200 (10th Cir. 2007). A party seeking
summary judgment bears the initial burden of showing there is no genuine dispute as to
any material fact. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998).
When the movant does not have the burden of persuasion at trial, it can satisfy its
burden at the summary judgment stage by identifying a lack of evidence on an essential
element of the claim. Id. at 671. If the party seeking summary judgment satisfies its
burden, the burden then shifts to the non-movant. Id.
The non-movant cannot rest on the pleadings but must “designate specific facts
so as to make a showing sufficient to establish the existence of an element essential to
that party’s case in order to survive summary judgment.” Sealock v. Colo., 218 F.3d
1205, 1209 (10th Cir. 2000) (citation omitted). Specifically, the non-movant must identify
facts from which a rational trier of fact could find in the non-movant’s favor, utilizing
evidence such as affidavits, deposition transcripts, or incorporated exhibits. Adler, 144
F.3d at 671. The party cannot rest on ignorance of the facts, speculation, or

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unsubstantiated conclusory allegations. Harvey Barnett, Inc. v. Shidler, 338 F.3d 1125,
1129 (10th Cir. 2003).
“The mere existence of a scintilla of evidence will not avoid summary judgment.”
Harapat, 676 F. Supp. 2d at 1259 (citing Vitkus v. Beatrice Co., 11 F.3d 1535, 1539
(10th Cir. 1993)). If the evidence in favor of the nonmovant “is merely colorable . . . or is
not significantly probative, . . . summary judgment may be granted.” Id. (quoting
Anderson, 477 U.S. at 249). “A fact is ‘disputed’ in a summary-judgment proceeding
only if there is contrary evidence or other sufficient reason to disbelieve it; a simple
denial, much less an assertion of ignorance, does not suffice.” Grynberg v. Total S.A.,
538 F.3d 1336, 1345 (10th Cir. 2008) (citing Fed. R. Civ. P. 56(e)).
III.

Analysis

Defendants first argue that even under Mr. Trujillo’s theory that “he was an
innocent bystander who was mistakenly shot while standing next to Mr. Laughrin,”
Officer Hopper is not subject to liability under Section 1983. (Doc. 35 at 17). In addition,
Defendants argue Officer Hopper is entitled to qualified immunity on Mr. Trujillo’s state
law battery claim because he acted in good faith and used only the force reasonably
necessary under the circumstances. Id. at 17-18. Thus, Defendants conclude, because
no liability can be attributed to Officer Hopper in his personal capacity, no derivative
liability may be imputed to the City of Hobbs. Id. at 19.
a. Claims Against Officer Royal Hopper in his Personal Capacity
A claim against an officer in his personal capacity seeks to impose liability on the
officer himself, not the department where he works. Hafer v. Melo, 502 U.S. 21, 25
(1991). To establish a claim against a government officer in his personal capacity, the

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plaintiff must demonstrate that the officer caused the deprivation of a federal statutory or
constitutional right while acting under color of state law. Id. Unlike government officers
who are sued in their official capacity, officers sued in their personal capacity “come to
court as individuals.” Id. at 27. In describing the scope of personal-capacity claims, the
United States Supreme Court has underscored Congress’ intent to provide “a remedy to
parties deprived of constitutional rights, privileges, and immunities by an official’s abuse
of his position.” Monroe v. Pape, 365 U.S. 167, 172 (1961) (rev’d on other grounds).
Under Section 1983, state officials sued in their personal capacity for damages
may raise the affirmative defense of qualified immunity. A.M. v. Holmes, 830 F.3d 1123,
1134 (10th Cir. 2016). Once a defendant asserts qualified immunity, the plaintiff bears
the burden of demonstrating that both (1) the official violated a federal constitutional or
statutory right; and (2) the right violated was clearly established at the time of the
official’s conduct. Id. The Tenth Circuit Court of Appeals has described this test as a
“heavy two-part burden,” established to protect “all but the plainly incompetent or those
who knowingly violate the law.” Id. at 1134-35 (internal citations and quotations
omitted).
A decision to afford an officer qualified immunity is almost always a question of
law, to be decided by the court prior to trial. Keylon v. City of Albuquerque, 535 F.3d
1210, 1217-18 (10th Cir. 2008). The protection afforded by qualified immunity applies to
government officials whether their mistake is one of law or fact – or a mixed question of
law and fact. Pearson v. Callahan, 555 U.S. 223, 231 (2009). A court has discretion to
address the requirements of a qualified immunity defense in any order. Id. at 236. The
plaintiff’s failure to establish either of the two requirements is fatal to his claim. Id.

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In determining whether the plaintiff has satisfied the two-pronged qualifiedimmunity showing, the court ordinarily accepts the plaintiff’s version of the facts. See
Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009). However, because the
summary judgment stage is “beyond the pleading phase of the litigation, a plaintiff’s
version of the facts must find support in the record.” Thomson v. Salt Lake Cty., 584
F.3d 1304, 1312 (10th Cir. 2009). “As with any motion for summary judgment, ‘[w]hen
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 v. Harris, 550 U.S. 372, 380 (2007)). However, if the non-movant proves there is a
factual dispute involving an issue “on which qualified immunity turns,” summary
judgment on the basis of qualified immunity is “inappropriate.” Harapat, 676 F. Supp. 2d
at 1266 (citing Poe v. Haydon, 853 F.2d 418, 426 (6th Cir. 1988)).
i. Section 1983 Excessive Use of Force Claim
Defendants first contend no issues of material fact remain that prevent the Court
from granting Officer Hopper’s qualified immunity defense on Mr. Trujillo’s Section 1983
claim. Specifically, Defendants argue it is undisputed that Mr. Trujillo heard Officer
Hopper announce himself before firing his weapon and, even after that announcement,
the rifle allegedly aimed at Officer Hopper was not lowered or released. (Doc. 35 at 1617). These facts, Defendants allege, make Officer Hopper’s decision to shoot
reasonable and shield him from liability under the Fourth Amendment. Id. Mr. Trujillo,
however, argues that whether he was a threat to Officer Hopper, thus justifying the
shooting, is “very much in dispute.” (Doc. 67 at 24). Mr. Trujillo claims the facts illustrate

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Officer Hopper intentionally used deadly force against him, even though he was
unarmed and submitted to Officer Hopper’s commands. Id. at 25.
1. Legal Standard
“When an officer moves for qualified immunity on an excessive force claim, ‘a
plaintiff is required to show that the force used was impermissible (a constitutional
violation) and that objectively reasonable officers could not have thought the force
constitutionally permissible (violates clearly established law).’” Harapat, 676 F. Supp. 2d
at 1264 (quoting Cortez v. McCauley, 478 F.3d 1108, 1128 (10th Cir. 2007)). The court
must analyze a Fourth Amendment excessive force claim under an objective
“reasonableness” standard. Graham v. Connor, 490 U.S. 386, 397 (1989) (“[T]he
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.”).
In making this determination, the court must consider the “totality of the
circumstances,” including: (1) the severity of the crime at issue; (2) whether the suspect
posed an immediate threat to the safety of the officers or others; and (3) whether the
suspect was actively resisting arrest or attempting to evade arrest by flight. Id. (citing
Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)). In respecting the difficulty of law
enforcement’s need to make split-second decisions, the court must evaluate the
reasonableness of the officer’s use of force from the “on-scene perspective,” not with
the benefit of 20/20 hindsight. Saucier v. Katz, 533 U.S. 194, 205 (2001).
2. Analysis
In the early hours of January 17, 2015, Kyle Laughrin consumed ten drinks inside

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Diamond Lil’s over the course of approximately one hour and thirty minutes. (Doc. 1 at
3). When it was time to leave, Mr. Laughrin walked to the back parking lot of Diamond
Lil’s and began waving and pointing a handgun in the direction of Mr. Trujillo. Id. After
attempting to reason with Mr. Laughrin to put the gun away, Mr. Trujillo claims Mr.
Laughrin fired two bullets from the handgun into the air. Id. at 4. Mr. Laughrin then
walked to a friend’s vehicle, opened the door, and pulled out a rifle. Id. Moments later,
Officer Hopper arrived on the scene. Id. at 4. The parties dispute what happened next.
Officer Hopper alleges he approached Diamond Lil’s, heard shots being fired,
and “he could see muzzle flashes going off” − a sign of live rounds being fired from a
long gun. (Doc. 35 at 3). Officer Hopper recalls that he saw Mr. Trujillo and Mr. Laughrin
jointly holding the rifle and shouted loudly twice, “drop your weapon.” Id. at 4. As he saw
the “barrel of the [rifle] come up rising at him,” he “started shooting,” allegedly aiming his
fire “for the rifle.” Id. After shooting both Mr. Trujillo and Mr. Laughrin, Officer Hopper
radioed for emergency medical assistance. Id. at 5. Mr. Laughrin fled to a nearby
vehicle and Mr. Trujillo remained in the parking lot bleeding as a result of his injuries.
Id.; see also (Doc. 67 at 18).
Mr. Trujillo recalls the events differently. He contends Officer Hopper arrived in
the dimly lit parking lot and gave a single verbal warning announcing his presence that
was “near simultaneous” to the moment he began shooting. (Doc. 1 at 5). When Officer
Hopper issued his verbal warning, Mr. Trujillo claims he raised his arms and began
walking backwards. (Doc. 67 at 11). Mr. Trujillo also contends that he played no role in
“holding the rifle,” and was “ten to fifteen feet away” from Mr. Laughrin when he was
shot. Id. By Mr. Trujillo’s account, he complied with Officer Hopper’s commands and

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was shot anyway.
Mr. Trujillo further argues Officer Hopper could not have seen “muzzle flashes
going off” or heard gunshots being fired when he arrived at Diamond Lil’s because Mr.
Laughrin never fired the rifle. (Doc. 67 at 6) (“Agent Newman has confirmed that Hopper
was simply wrong when he said that he saw ‘a muzzle flash from a long gun.’”); see
also id. (“[S]tate police exhaustively searched the Diamond Lil’s parking lot and could
only find casings for Laughrin’s pistol, not his rifle”). Mr. Trujillo contends, with police
logs and records in support, that when Mr. Laughrin fired his pistol, four or five minutes
elapsed before Officer Hopper arrived on the scene. (Doc. 67 at 19). However, Officer
Hopper claims he “shot his weapon within three to five seconds” of hearing the
opposing gunfire. Id. at 8. Under Officer Hopper’s version of events, Mr. Laughrin would
have had to fire his pistol, run to a nearby car, pull out a rifle, and begin to raise it
toward Officer Hopper within “three to five seconds.” See (Doc. 67 at 6).
Mr. Trujillo also contests Officer Hopper’s allegation that he aimed his duty
weapon at the rifle when he fired. Mr. Trujillo contends Officer Hopper is a “trained
marksman,” a man who is trained to hit where he aims. (Doc. 67 at 15) (Officer Hopper
stated, “I mean that’s the whole purpose of us going to the range and shooting a lot, so
where we shoot at is where we hit.”). According to Mr. Trujillo, the logical nexus must
therefore be that Officer Hopper intentionally shot him while he was standing ten to
fifteen feet away from Mr. Laughrin with his arms raised. Id. (“Hopper did not shoot the
rifle. Had he targeted the rifle, he would not have struck [Mr.] Trujillo.”).
Mr. Trujillo’s factual contentions are not without support in the record. Indeed, Mr.
Trujillo cites police interviews of witnesses Jacob McPherson, Lana Trowler, Christa

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Hutchcraft, and Nathan Medellin. (Doc. 67 at 7); see Adler, 144 F.3d at 671 (“The nonmovant must… identify[] facts in affidavits, deposition transcripts, or incorporated
exhibits.”). In addition, Mr. Trujillo cites five different statements given by Officer
Hopper: a recorded interview with the Department of Public Safety conducted by
Investigator Charles Newman, an interview with the Hobbs Police Department
conducted by Lieutenant Cunnigham, a pre-trial interview in the criminal case against
Mr. Laughrin, testimony at Mr. Laughrin’s criminal trial, and his deposition in this civil
action. (Doc. 67 at 3, 7-8). Mr. Trujillo also presents his own deposition transcripts,
(Doc. 67-4 at 1-9), testimony from Mr. Laughrin, (Doc. 67-5 at 1-7), the transcripts from
the depositions of Officer Kevin Massis and Agent Newman with the New Mexico State
Police, (Doc. 67-7 at 1-3), (Doc. 67-8 at 1-7), and the affidavit of witness Adam
McGranahan, (Doc. 67-13 at 1-3).
The Court cannot accept Defendants’ argument that because an assault rifle was
allegedly pointed in the direction of Officer Hopper, he should be granted qualified
immunity for firing his weapon. While in a vacuum this fact is persuasive, the facts here
do not support such a broad conclusion. Indeed, “the totality of the circumstances” is
“the touchstone of the reasonableness inquiry” and “strict reliance on the ‘precise
moment’” Officer Hopper fired his weapon “is inappropriate when the totality must be
considered.” See Thomson v. Salt Lake Cty., 584 F.3d 1304, 1313 (10th Cir. 2009)
(“We assess objective reasonableness based on whether the totality of the
circumstances justified the use of force, and pay careful attention to the facts and
circumstances of the particular case.”); see also Phillips v. James, 422 F.3d 1075, 1083
(10th Cir. 2005). The Tenth Circuit has plainly rejected this argument, explaining that

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“although the precise moment before [the officer] shot is a critical factor, the events
leading up to that moment are also extremely relevant.” Phillips, 422 F.3d at 1083.
The Court also finds Defendants’ argument is inconsistent with the Tenth
Circuit’s opinion in Estate of Larsen, ex rel. v. Murr, 511 F.3d 1255 (10th Cir. 2008). In
Estate of Larsen, Chief Judge Tymkovich explained that in determining whether a police
officer’s use of force was reasonable, the court should consider a number of “nonexclusive” factors, such as: (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 towards 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. Here, the parties genuinely dispute the first three factors.
Indeed, the parties disagree on the timing and substance of Officer Hopper’s verbal
command, (Doc. 67 at 14), (Doc. 74 at 5); whether Mr. Trujillo complied with Officer
Hopper’s commands before he was shot, (Doc. 67 at 11), (Doc. 74 at 6); whether Mr.
Trujillo had his hands on the weapon, (Doc. 67 at 11), (Doc. 74 at 6); whether Officer
Hopper heard or saw gunshots before firing his weapon, (Doc. 67 at 5-9), (Doc. 74 at 34); and how far Mr. Trujillo stood from both Officer Hopper and the suspect with a rifle,
(Doc. 67 at 11), (Doc. 74 at 9-10). Given these factual discrepancies, the Court is
unable to determine whether Officer Hopper’s actions were objectively reasonable
under the circumstances. See Graham, 490 U.S. at 397 (similarly explaining that the
Fourth Amendment calculus turns on “the severity of the crime at issue,” “whether the
suspect posed an immediate threat to the safety of the officers or others,” and “whether
he was actively resisting arrest or attempting to evade arrest by flight.”).

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Finally, Defendants urge the Court to believe Officer Hopper’s testimony over
that provided by Mr. Trujillo, Mr. Laughrin, and Mr. McGranahan. (Doc. 74 at 3-4).
Defendants argue that Mr. Trujillo and Mr. Laughrin were “intoxicated at the time of the
incident,” and Mr. Trujillo “fails to set forth actual, competent summary judgment
evidence.” Id. at 3. The Court will not weigh the credibility of witness testimony nor will it
otherwise evaluate competing evidence. See Norton v. The City of Marietta, Oklahoma,
432 F.3d 1145, 1154 (10th Cir. 2005) (explaining that “[g]iven the dearth of evidence in
the record, the district court could not have reached these conclusions unless it chose
to believe defendants over plaintiff,” and “the district court’s grant of summary judgment”
was therefore improper); see also Seamons v. Snow, 206 F.3d 1021, 1027 (10th Cir.
2000) (“Given the conflicting testimony [] contained in the depositions, we fail to see
how the district court could reach these conclusions without resolving factual disputes something it cannot do at this stage of the proceedings.”). Indeed, “[i]t is axiomatic that
a judge may not evaluate the credibility of witnesses in deciding a motion for summary
judgment.” Seamons, 206 F.3d at 1026. The Court therefore recommends that
resolution of these factual and credibility-related issues be left for a jury. See Harapat,
676 F.Supp. 2d at 1258-59 (“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.”) (internal quotations omitted).
In sum, Mr. Trujillo has demonstrated genuine disputes over material facts that
prevent the Court from concluding whether Officer Hopper violated his Fourth
Amendment rights. See Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002)
(“In the end, [] the defendant still bears the normal summary judgment burden of

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showing that no material facts remain in dispute that would defeat the qualified immunity
defense. When the record shows an unresolved dispute of historical fact relevant to this
immunity analysis, a motion for summary judgment based on qualified immunity should
be properly denied.”) (internal quotations and citations omitted). The Court finds an
answer to these factual questions is necessary to determine whether the first prong of
the qualified immunity analysis is met − whether Officer Hopper violated Mr. Trujillo’s
Fourth Amendment right to be free from excessive force. Consequently, the Court
RECOMMENDS that Defendants’ request for summary judgment on this issue be
DENIED.
ii. Battery under the New Mexico Tort Claims Act
Next, Defendants argue Officer Hopper is entitled to summary judgment on Mr.
Trujillo’s state law battery claim “for the same reasons” that he is entitled to qualified
immunity on the Section 1983 claim. (Doc. 35 at 17-18). Defendants only provide one
paragraph detailing this argument, which states in its entirety:
Plaintiff alleges Officer Hopper committed a battery against Plaintiff.
See Plaintiff’s Complaint, Count II. A police officer will not be liable
for assault or battery so long as he acted in good faith and only
used the force reasonably necessary under the circumstances. See
Jonas v. Bd. of Comm’rs of Luna Cty., 699 F.Supp.2d 1284, 1297
(D.N.M. 2010) (citing State v. Gonzales, 642 P.2d 210, 213 (N.M.
Ct. App. 1982)[)]. For the same reasons that Plaintiff’s excessive
force claims fail against Officer Hopper, so must Plaintiff’s battery
claims. Accordingly, Officer Hopper is entitled to summary
judgment on all of Plaintiff’s state law claims.
Id. In determining whether a police officer is liable for battery for his use of force
in facilitating an arrest, courts apply a similar “objective reasonableness test” as that
utilized under the Fourth Amendment. See Alaniz v. Funk, 364 P.2d 1033, 1035 (N.M.
1961). Here, the Court has concluded that genuine disputes over Mr. Trujillo’s distance
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from the rifle, whether Officer Hopper heard gunshots before firing his weapon, and the
timing and nature of Officer Hopper’s warning before firing his weapon, preclude a
determination of whether Officer Hopper’s conduct was reasonable under the Fourth
Amendment. Absent any additional argument from the parties, the Court concludes the
same material disputed facts render summary judgment on the reasonableness of
Officer Hopper’s conduct for purposes of Mr. Trujillo’s state law battery claim improper.
For these reasons, the Court RECOMMENDS that Defendants’ request for summary
judgment on this issue be DENIED.
b. Derivative Liability Claims Against the City of Hobbs
Finally, Defendants argue, because no liability can be attributed to Officer
Hopper’s conduct, Mr. Trujillo cannot sustain his vicarious liability claims against the
City of Hobbs. (Doc. 35 at 19). Defendants provide only three sentences in support of
this argument:
Plaintiff’s claims against the City of Hobbs (vicarious liability
and municipality liability) are all derivative in nature. In other
words, to establish liability against the City of Hobbs, Plaintiff
must first establish that Officer Hopper is liable. As
previously established, Plaintiff cannot do so. Accordingly, all
claims against the City of Hobbs should be dismissed.
Id. The success of Defendants’ argument hinges on the Court granting their motion for
summary judgment on Mr. Trujillo’s individual capacity claims against Officer Hopper.
See id. The Court will not craft an argument on Defendants’ behalf to address the
remaining claims against the City. Thus, because the Court recommends that
Defendants’ Motion be denied as to the individual capacity claims against Officer
Hopper, it follows that the Court RECOMMENDS that Defendants’ request for summary
judgment on this issue also be DENIED.
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IV.

Conclusion

Consistent with the foregoing, the Court RECOMMENDS that Defendants’
Motion for Summary Judgment and Memorandum in Support, (Doc. 35), be DENIED.
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a
copy of these Proposed Findings and Recommended Disposition they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party
must file any objections with the Clerk of the District Court within the fourteenday period if that party wants to have appellate review of the proposed findings
and recommended disposition. If no objections are filed, no appellate review will
be allowed.

________________________________
THE HONORABLE CARMEN E. GARZA
CHIEF UNITED STATES MAGISTRATE JUDGE

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