Torres v. Murillo et al
Filing
73
ORDER by Magistrate Judge Kevin R. Sweazea granting in part and denying in part 33 Motion to Dismiss and/or for Summary Judgment (cbf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MANUEL G. TORRES,
Plaintiff,
v.
No. 2:17-cv-00765-KRS-GBW
DET. CHRISTINE MURILLO,
DET. MELINDA HOBBS, CORP.
JAIMIE SERRANO a/k/a Officer Serrano,
CHIEF OF POLICE ED REYNOLDS,
CHIEF DEPUTY DISTRICT ATTORNEY
G. GEORGE ZSOKA, SILVER CITY POLICE
DEPARTMENT and TOWN OF SILVER CITY,
Defendants.
ORDER GRANTING IN PART DEFENDANTS ED REYNOLDS, CHRISTINE
MURILLO AND MELINDA HOBBS’ MOTION TO DISMISS AND/OR SUMMARY
JUDGMENT ON THE BASIS OF QUALIFIED IMMUNITY
THIS MATTER comes before the Court on Defendant Chief of Police Ed Reynolds and
Detectives Christine Murillo and Melinda Hobbs’ motion for summary judgment on the basis of
qualified immunity. 1 Plaintiff Manuel Torres, himself a law enforcement officer, sued these
individuals for Fourth Amendment violations arising from Defendant Officer Jaime Serrano’s
entry into Torres’s home on June 21, 2015 as well as Torres’s subsequent prosecution for
shooting at a motor vehicle contrary to New Mexico law. See N.M. Stat. Ann. § 30-3-8(B). The
Chief and Detectives assert that Torres cannot overcome their immunity from suit because
Torres consented to the entry of his home and voluntarily handed over the gun. Additionally, the
1
The motion is actually one to dismiss or, in the alternative, summary judgment. Because the Court does consult
matters outside the pleadings in resolving the motion, the Court construes the motion as one for summary judgment.
Defendants make an arguable point that the Court can view the video recording capturing some of the events as
inherently part of the pleadings without converting the motion. This “grey area” is easily avoided by resolving the
matter under summary-judgment standards as it applies to qualified immunity, especially since Defendants followed
the Local Rules applicable to such motions.
Page 1 of 22
Chief and Detectives contend that Torres’s criminal prosecution was supported by probable
cause. Torres claims genuine issues of material fact preclude summary judgment and he needs
discovery to properly oppose the Chief and Detectives’ motion. With the consent of the parties
to conduct dispositive proceedings, see 28 U.S.C. §636(c), the Court has considered the parties’
submissions and applicable law as well as reviewed the record on summary judgment. Having
done so, the Court concludes the Chief and Detectives are entitled to qualified immunity and
grants their motion in part.
BACKGROUND
On June 21, 2015, Torres, then a law enforcement officer with the Village of Santa Clara,
was off duty hosting a Father’s Day barbeque at his home on Swan Street in Silver City, New
Mexico. (UMF 2 2; Doc. 33-1, Supp. Police Report). Torres was outside and observed a black
truck at a nearby intersection as well as a crowd of people. (Id.). Torres heard arguing, a fight,
and ultimately gunshots. 3 (Id; UMF 3, Doc. 33-1). After securing his family inside the home and
retrieving his personal weapon, a Glock .40, Torres stood in his yard and noticed the black truck
begin to drive off. (Doc. 33-1). When Torres saw the vehicle’s passenger shoot, Torres fired the
Glock .40 several times. (Id.). 4
2
“UMF” or “undisputed material fact” refers to the separately numbered facts asserted by the moving party as
required by the Local Rules on summary-judgment practice.
3
Torres disputes UMF 3 because the record support for it, a supplemental police report, states that Torres heard a
fight “outside” and there was a “crowd of people gathering,” and not “outside his yard” as Defendants claimed. The
Court is unsure, and Torres does not explain, why these differing facts are material. Nonetheless, the Court must
accept Torres’s version as true and does so by referencing the actual underlying exhibit as opposed to the parties’
respective glosses on the document. The Court is also cognizant that police reports may be inadmissible hearsay and
incapable of supporting or controverting a fact on summary judgment. See Gross v. Burggraf Const. Co., 53 F.3d
1531, 1541 (10th Cir. 1995)(“It is well settled in this circuit that we can consider only admissible evidence in
reviewing an order granting summary judgment. Hearsay testimony cannot be considered because [a] third party's
description of [a witness'] supposed testimony is not suitable grist for the summary judgment mill.”). That concern
is alleviated here because Torres is a party opponent and otherwise does not object to the police report.
4
Torres further disputes Defendant UMF 3 because, in his view, Reynolds, Murillo, and Hobbs do not clarify that
the passenger of the vehicle began to shoot first before Torres returned fire. As above, Torres does not explain why
the dispute is material but for purposes of the motion, the Court has adopted the police report’s recitation of Torres’s
statements to Capitan Hernandez of the Silver City Police Department.
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Detectives Murillo and Hobbs and Chief Reynolds were dispatched to Swan Street in
response to a “shots-fired call.” (UMF 1; Doc. 33-1). Once there, they asked Officer Serrano,
also of the Santa Clara Police Department, to secure Torres’s gun. (UMF 4). 5 Officer Serrano
obliged. (Id). As Officer Serrano reached Torres’s residence, Officer Serrano called for “Manny”
through a screen door. (Doc. 33-2, Lapel Camera Video; 0:0:35- 45). 6 Torres responded, “yo,”
and Officer Serrano backed up opening the screen door without entering the home. (Id., 0:0:4748). Almost immediately, as Officer Serrano held the screen door ajar, Torres appeared in the
entryway. Officer Serrano asked Torres “where’s your weapon?” (Id.). In response, Torres
motioned with his hand for Officer Serrano to follow Torres inside the house; Officer Serrano
entered and trailed Torres several feet to the living room. (Id.).
Once inside, Torres asked Officer Serrano, “do you need it?”7 (Id., 0:0:58-0:1:01).
Officer Serrano explained he did need the gun, and cautioned Torres not to touch “it.” (Id.).
Nonetheless, Torres took a pistol from the couch and handed it to Officer Serrano. (Id.) After
doing so, Torres inquired whether Officer Serrano would unload the gun, and Officer Serrano
explained that he would give the weapon to “them” as is. (Id.). Torres also asked Officer
Serrano, “are you going to take it?” (Id., 0:1:01-0:1:15). Officer Serrano confirmed he was
taking the weapon and asked if Torres had “unloaded any other?” (Id.). Thereafter, Torres
handed Officer Serrano a magazine. (Id.).
5
Torres suggests that who exactly directed Serrano to secure the weapon is one of the case’s biggest mysteries. In
their motion, the Chief and Detectives concede they collectively ordered Officer Serrano to secure the weapon.
Even if there is confusion as to who specifically made the request to Officer Serrano, it is immaterial to the analysis.
In fact, as explained in the analysis, Torres needs the concession, for without it he has no arguable basis to impute
Officer Serrano’s conduct to the Chief and Detectives.
6
Torres lodges several complaints as to the Chief and Detectives’ description of Officer Serrano’s video footage of
the events. To ensure it reviews the footage in the light most favorable to Torres, the Court has examined the video
and recites the facts as observed directly from that footage without either parties’ gloss on the events.
7
The parties and papers refer at times to two magazines. There are two magazines; however, one was inside the gun
when Torres turned it over to Officer Serrano.
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After about forty seconds inside the house, Officer Serrano began to leave, and Torres
asked Officer Serrano to “hold up.” (Id., 0:0:50 – 0:1:50). The purpose for the request is
unclear, but Officer Serrano remained for a moment before exiting the home. (Id.). Officer
Serrano then returned to his squad car and placed Torres’s gun and magazines on the hood. (Id.)
A minute or so later, Torres joined Officer Serrano at the police unit. (Id., 0:3:45-0:5:00).
Officer Serrano told Torres that “one of the officers” asked him to secure Torres gun. (Id.). The
two briefly discussed the incident: Officer Serrano indicated that Torres had hit the dark-colored
truck a number of times; Torres did not provide an explanation for why he shot at the truck; and
Torres denied he had been drinking. (Id.). The exchange ended in a fist bump and Officer
Serrano informing Torres that “they’re probably going to go talk to you” and that if Torres
“needed anything” to let Officer Serrano “know.” (Id.).
At some point that evening or the following morning, Detective Murillo sought, obtained,
and executed a search warrant for Torres’s “handgun[,] handgun case[,] handgun ammunition
and/or cases[,][and] DNA evidence, such items containing blood, to include DNA swabbing,
articles of clothing/materials.” (UMF 7, Doc. 33-3). 8 According to Detective Murillo’s
supporting affidavit, Torres told Detective Hobbs that he “came out of his residence when he
heard gunshots” and “did shoot several times at the blue truck as it was passing in front of his
residence.” (Id.). Police officers ultimately located seven bullet holes in the driver’s side of the
vehicle at which Torres had shot. (UMF 6, Doc. 33-1).
Detective Hobbs subsequently filed a single-count criminal complaint in the Grant
County, New Mexico magistrate court charging Torres with a fourth-degree felony for
“intentionally and unlawfully shoot[ing] a motor vehicle with reckless disregard for another
8
Torres takes issue with the timing of the search warrant and its execution. The Court does not ascribe any specific
time to the obtaining and execution of the warrant.
Page 4 of 22
person” in violation of N.M. Stat. Ann. § 30-3-8. (Doc. 33-3, Crim. Compl.). Chief Deputy
District Attorney George Zsoka, “approved” the document but ultimately refiled the matter in
state district court after the parties agreed to a nolle prosequi. The criminal information initiated
in district court was later dismissed after a preliminary hearing.
Torres commenced this lawsuit in federal court on July 25, 2017. (Doc. 1, Compl.). As is
relevant to this motion, Count I alleges that the Chief and Detectives, as part of the collective
term “Defendants,” violated Torres’s Fourth and Fourteen Amendment rights when they (1)
“entered his property and home without warrant and without authority”; (2) “without a warrant
and without authority, demanded and removed property from Plaintiff’s home”; (3) left the
property on the hood of a police car unattended; (4) made reckless misrepresentations and
deliberate falsehoods to secure a search warrant; (5) fabricated an affidavit in support of criminal
charges that excluded known exculpatory information and was premised upon reckless or
deliberate falsehoods; (6) spoiled evidence and otherwise failed to perform a competent
investigation and collect evidence; and (7) failed to corroborate or investigate information
included the affidavit supporting the criminal complaint. Chief Reynolds and Detectives Murillo
and Hobbs now assert entitlement to qualified immunity. (See Doc. 33).
STANDARD
Qualified immunity entitles a law enforcement officer to avoid trial and the other burdens
of litigation arising from the performance of his or her discretionary functions. See Quinn v.
Young, 780 F.3d 998 (10th Cir. 2015). To give effect to the doctrine, the Court views the
parties’ respective burdens on summary judgment differently. See Clark v. Edmunds, 513 F.3d
1219, 1222 (10th Cir. 2008); Price-Cornelison v. Brooks, 524 F.3d 1103, 1108 (10th Cir. 2008).
To defeat qualified immunity on summary judgment, the plaintiff must satisfy “a strict two-part
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test” by establishing with record evidence (1) “the defendant’s actions violated a constitutional . .
. right” and (2) that right was “clearly established at the time of the conduct at issue.” Clark, 513
F.3d at 1222 (internal quotation marks and citation omitted). The Court has discretion to analyze
the two prongs in whatever order it chooses “in light of the circumstances in the particular case
at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). If a plaintiff satisfies the two-part test,
then—and only then—does the law enforcement officer bear his or her traditional burden under
Federal Rule of Civil Procedure 56 to show the absence of a triable issue of fact. See Clark, 513
F.3d at 1222.
ANALYSIS
From what the Court can discern, Count I against the Chief and Detective comprises two
distinct theories: their alleged (1) illegal entry into Torres’s home and seizure of Torres’s gun;
and (2) malicious criminal prosecution of Torres in the state court. 9 The Chief and Detectives
contend Torres has not and cannot meet his burden to show that they deprived him of a
constitutional right that was clearly established as of June 21, 2015. Torres disagrees and
additionally asserts discovery is needed for him to properly respond on summary judgment.
Warrantless Entry and Seizure
The Fourth Amendment protects “the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const., amend. IV.
It also commands that “no warrants shall issue, but upon probable cause, supported by oath or
9
As identified above Count I alleges potentially seven different theories. In his response, Torres clarifies that his
claims against the Chief and Detectives relate to the entry of Torres’s home and the prosecution initiated against
him. The Court takes Torres at his word and construes the complaint in that manner. Even if there were other,
conceivable constitutional claims lurking in Count I’s imprecise language, the burden to show a violation of a
clearly established constitutional right is on Torres. Since Torres does not address any other Fourth Amendment
rights or cite law showing they are clearly established, he necessarily fails to carry the burden assigned to him by
law, and summary judgment is appropriate on that basis as well. See Gutierrez v. Cobos, 841 F.3d 895, 901 (10th
Cir. 2016).
Page 6 of 22
affirmation, and particularly describing the place to be searched, and the persons or things to be
seized.” Id. (internal capitalization omitted). “[T]he Fourth Amendment protects people, not
places.” Katz v. United States, 389 U.S. 347, 351 (1967). The inquiry, therefore, turns not on
whether a particular place is worthy of constitutional protection, but whether the individual has
an expectation of privacy in the place searched and whether that expectation was objectively
reasonable. See id. There is no doubt, however, that a citizen has a reasonable expectation of
privacy, and a particularly strong one, in his own home. See Kyllo v. United States, 533 U.S. 27,
31 (2001) (“At the very core of the Fourth Amendment stands the right of a man to retreat into
his own home and there be free from unreasonable governmental intrusion.”) (Quotation
omitted)).
The Fourth Amendment’s protection is not absolute. “One of the specifically established
exceptions to the requirements of both a warrant and probable cause is a search that is conducted
pursuant to consent.” United States v. Pena-Sarabia, 297 F.3d 983, 985 (10th Cir. 2002).
Consent must be given knowingly and voluntarily, but need not be verbally given. See Patel v.
Hall, 849 F.3d 970, 981 (10th Cir. 2017). As above, the determination focuses on
reasonableness, and the Court asks whether, under the totality of the circumstances, a reasonable
officer would have understood from the exchange between the officer and the suspect that the
suspect consented to the warrantless search and seizure. See United States v. Flores, 48 F.3d 467,
468-69 (10th Cir. 1995). Thus, “[t]he focus is not whether one subjectively consented, but
rather, whether a reasonable officer would believe consent was given’ as ‘inferred from words,
gestures, or other conduct.’” United States v. Lopez-Carillo, 536 F. App’x 762, 768 (10th Cir.
2013) (quoting United States v. Pena-Ponce, 588 F.3d 579, 584 (8th Cir. 2009)).
Page 7 of 22
In this case, the parties agree that the Chief and Detectives themselves did not enter
Torres’s home or seize anything. Instead, Torres asserts these Defendants violated the Fourth
Amendment because they asked Officer Serrano to secure the gun used in the incident. The
Chief and Detectives do not challenge the legal foundation of Torres’s theory, concede Torres
has a legitimate expectation of privacy, and admit Office Serrano did not have a warrant to enter
the premises or seize personal property at the time Officer Serrano entered Torres’s home. As
the parties frame it, the two questions the Court must answer are whether Torres consented to
Officer Serrano’s warrantless entry into the home and warrantless seizure of the gun and
magazines.
Constitutional-violation prong of the qualified-immunity analysis
Officer Serrano’s lapel camera recorded the exchange between Officer Serrano and
Torres. 10 The footage demonstrates that Officer Serrano approached Torres’s residence and
called for “Manny” through a screen door. After Torres responded, “yo,” Officer Serrano
opened the screen door without entering the home. At that point, Torres appeared, and Officer
Serrano asked “where’s your weapon?” In response, Torres motioned for Officer Serrano to
follow Torres inside the house, and Officer Serrano, who was a few feet from the threshold
holding the screen door open, entered. Torres asked Officer Serrano, “do you need it?” Officer
Serrano answered that he did need the gun, and indicated that Torres should not touch “it.” Near
the entryway, in what appeared to be the living room, Torres took a pistol from the couch and
handed it to Officer Serrano. Torres then inquired whether Officer Serrano would unload the
gun, and Officer Serrano explained that he would give the weapon to “them” as is. Torres also
10
In his response, Torres seems to suggest the Court should not consider the footage because it had not been
authenticated. To extent there are any authenticity concerns, the Chief and Detectives have submitted an affidavit
authenticating the video.
Page 8 of 22
asked, “are you going to take it?” Officer Serrano confirmed he was taking the weapon and
probed whether Torres had “unloaded any other?” Torres handed Officer Serrano a magazine.
After about forty seconds inside, Officer Serrano began to leave when Torres asked
Officer Serrano to “hold up.” Officer Serrano remained for a moment before exiting the home
and returning to his squad car, where he placed Torres’s gun and magazines on the hood. A
minute or so later, Torres joined Officer Serrano at the police unit. There Officer Serrano told
Torres “one of the officers” asked Officer Serrano to secure the gun. After some discussion
about the incident—why Torres shot for which he gave no answer and whether Torres had been
drinking, which he had not—Torres parted company with Officer Serrano after a fist bump.
Entry into the home
After viewing the recording, the Court is persuaded that Officer Serrano did not violate
the Fourth Amendment by opening the screen door of the house and following Torres inside. 11
Although Torres did not verbally invite Officer Serrano into the house, Torres’s hand gesture
coupled with the totality of the circumstances and lack of objection to Officer Serrano’s conduct
provided Officer Serrano an objectively reasonable basis to believe Torres invited Officer
11
Another argument that Torres might have, but did not, make is that Officer Serrano’s opening the screen door was
itself an unlawful entry. The Ninth Circuit, for example, has suggested in dicta that, in the summertime, a screen
door, serves the same purpose a home’s main door and when an officer opens it without a warrant, the privacy
barrier to the home is violated as is the Fourth Amendment. See United States v. Arellano-Ochoa, 461 F.3d 1142
(9th Cir. 2006). The Tenth Circuit has expressed doubt as to such a broad proposition and has held that an officer
who opens a storm door to knock on a partial ajar front door does not violate the Fourth Amendment. See United
States v. Walker, 474 F.3d 1249, 1253 (10th Cir. 2007) (“Regardless of the merits of [Arellano-Ochoa’s] proposition
in some circumstances, we see no violation of Mr. Walker's reasonable expectation of privacy in Deputy Parker's
knock on his inner door”). The Court declines to make the parties’ arguments for them, but notes that in this case
that Officer Serrano first called through the screen door, which is a least the equivalent of a knock, see e.g. Brigham
City v. Stuart, 547 U.S. 398, 406 (2006), the door opened outwards from Torres’s house, and Officer Serrano backed
up from the residence a number of feet holding the door open as Torres appeared almost immediately and motioned
Officer Serrano inside the home before Officer Serrano actually physically entered the home. It is unclear that the
Tenth Circuit would hold this conduct to be a violation of the Fourth Amendment. At the very least, even if the
conduct technically violated the Fourth Amendment, Officer Serrano and by extension the Chief and Detectives,
would enjoy qualified immunity on the clearly-established prong of the analysis. As explained below, Torres has
not carried his legal burden to identify decisional law predating June 21, 2015 placing Officer Serrano on notice that
his entry into the house where there was objective indicia of consent violated the Fourth Amendment.
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Serrano in the house. See United States v. Guerrero, 472 F.3d 784, 789-90 (10th Cir. 2007)
(explaining that consent need not be verbal and “may instead be granted through gestures or
other indications of acquiescence, so long as they are sufficiently comprehensible to a reasonable
office.”). In fact, as Officer Serrano attempted to leave, Torres asked him to “hold up,” a request
that is antithetical to Torres’s claim of unlawful entry. The voluntariness of the circumstances is
further underscored by lack of any coercive or overbearing behavior and exemplified by the
manner in which the exchange ended—with a fist bump and Officer Serrano asking Torres to let
Officer Serrano know if Torres needed anything. The video is uncontroverted and appears to
capture the entirety of the interaction. The Chief and Detectives are therefore entitled to
summary judgment on the basis of qualified immunity because Torres has not established Officer
Serrano unlawfully entered Torres’s home.
Seizure of the gun
Officer Serrano’s retrieval of the weapon and magazines presents a closer call. The
scope of consent is typically “limited by the breadth of the consent given.” United States v.
McRae, 81 F.3d 1528, 1537 (10th Cir. 1996). While the Court has little difficulty finding that
Torres’s hand gesture invited Officer Serrano into the house, it does not necessarily follow that
Torres’s non-verbal communication meant that Torres had consented to the seizure of the gun
and magazine without a warrant as well. In fact, while Torres seemed willing to handover the
gun to Officer Serrano, he did not necessarily understand Officer Serrano’s intention to remove it
as evidenced by his question to that effect. At the same time, Officer Serrano’s stated purpose for
contacting Torres was to find the pistol, and Torres did not object to handing the items to Officer
Serrano. Indeed, Torres handed over a magazine after Torres knew Officer Serrano was
confiscating the firearm.
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A strong argument exists that Torres voluntarily relinquished his Glock .40 and
magazines. Acquiescence generally supports consent as does handing over items of personal
property without objection. See Guerrero, 472 F.3d at 789-90; United States v. Patten, 183 F.3d
1190, 1192-95 (10th Cir. 1999) (upholding consent where an officer repeatedly asked the
defendant to open his suitcase and in response the defendant did so gradually); United States v.
Amador-Beltran, 655 F. App’x 666, 668 (10th Cir. 2016) (explaining that by handing personal
property to an officer without limitation, the defendant “sufficiently manifested” her permission
to search). Moreover, from the Court’s review of the recording, none of the elements of coercion
that the case law articulates are present. See United States v. Jones, 701 F.3d 1300, 1318 (10th
Cir. 2012) (identifying “physical mistreatment, use of violence, threats, promises, inducements,
deception, trickery, or an aggressive tone, the physical and mental condition and capacity of the
defendant, the number of officers on the scene, and the display of police weapons” as nonexhaustive factors to consider in assessing voluntariness). The Court recognizes that “mere
submission to lawful authority” is insufficient for consent and an officer in an individual’s home
that makes demands to take property carries necessarily some coercive force. See United States
v. Rodriguez, 525 F.2d 1313, 1316 (10th Cir. 1975).
Even construing Officer’s conduct as a directive to turn over the gun and magazines, the
Court is not convinced consent was absent. In Jones, the Tenth Circuit upheld a consent finding
on arguably egregious conduct by law enforcement. 701 F.3d at 1318. There, Missouri police
officers entered Kansas and engaged the defendant in conversation outside of his home. One
officer took the defendant’s driver’s license and another implied that the defendant could be on
his way if he let the officers search his home. In fact, after seizing his license, one officer said to
the defendant “I’m here for your marijuana plants” and “let’s clear up what we have here today
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and make sure that there are no marijuana plants here at your house.” Id. at 1320 (internal
alterations omitted). The defendant did not verbalize consent; nor did he “openly refuse consent
to a search of his residence.” Id. at 1307. Instead, in mid-conversation, the defendant turned
back toward the home and began walking. The officers followed, smelt a strong odor of
marijuana, and entered a screened-in porch area. When the defendant entered into the living
room of the home after unlocking a door, the defendant aimed a gun at one of the officers inside
the home. Another officer shot the defendant five or six times, wounding him. The officers
retreated and obtained warrants.
The defendant was ultimately indicted on federal drug charges and moved to suppress the
marijuana seized, claiming he did not consent to the officer entry into his home. The district
court denied the motion, and the defendant appealed. Among other things, the defendant argued
that the comment that the officers were there for his marijuana plants and their demand to clear
up that he had no plants “rendered involuntary any consent [the defendant] may have given.” Id.
at 1319. The Tenth Circuit disagreed. Although the court of appeals explained that the statement
“was accusatory and may well have been jolting to a reasonable person,” the court could not
“conclude that a reasonable person would have felt so threatened or cowed by the statement that
he or she would have involuntarily complied with an officer’s requests or directions.” Id.
In this case, like Jones, the Court cannot say that that a reasonable person would have felt
from Officer’s Serrano’s statements that he had no choice but to produce the gun and magazines.
Even after Torres confirmed Officer Serrano’s intent was to seize the guns he turned over an
additional magazine. Nonetheless, even though there may be competing inferences to draw from
Officer Serrano’s comments to Torres, the Court is permitted to and does resolve the qualified
immunity issue on more narrow grounds; that Torres has not shown Officer Serrano—and by
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extension the Chief and Detectives—deprived Torres of any clearly established constitutional
right as analyzed below in the section devoted to the second prong.
Unconstitutional ruse and the Chief and Detective’s personal involvement
Torres implies his relationship with Officer Serrano as a “colleague and acquaintance”
renders consent involuntary and argues that a triable issue of fact also exists as to whether the
Silver City Police Department ordered Officer Serrano to obtain the gun and magazines. As to
the first point, Torres does not cite to record evidence to establish that Officer Serrano gained
access to Torres’s home and took the gun on that basis. Even if such a theory is cognizable
under the Fourth Amendment, Officer Serrano was dressed in full uniform as reflected in the
video. Officer Serrano called out to “Manny,” asked after Torres’s gun, and followed Torres into
the residence only after Torres waived him in. Objectively, although it appears the two were
familiar, Officer Serrano did not invoke their relationship as a basis for gaining access and was
there is his capacity as a law enforcement agent.
Even if Torres could offer record support for a ruse, the only concept that might square
with Torres’s friendship theory, see United States v. Harrison, 639 F.3d 1273, 1280 (10th Cir.
2011) (explaining that where “the effect of the ruse is to convince the resident that he . . . has no
choice but to invite the undercover officer in, the ruse may not pass constitutional muster”)
(citation omitted), any such claim would be “blatantly contradicted” by the video footage and not
capable of creating genuine issue of fact for trial. See Scott v. Harris, 550 U.S. 372, 380 (2007)
(“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.”). The recoding does not
evidence any conduct that reasonably could be seen as presenting Torres, himself trained in the
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law, as no choice but to allow Officer Serrano inside. Notwithstanding their status as coworkers
and perhaps even friends, the Court concludes Torres’s and Officer Serrano’s service on the
same police force does not provide a basis for overcoming qualified immunity.
As to the second point— an alleged existence of genuine issue of material fact as to
“whether SCPD acted to direct Defendant Serrano to search and seize Plaintiff’s property
without a warrant, making SPCD/City of Silver City liable for his wrongful actions”— Torres’s
argument is not well taken. The liability of these Defendants is not at issue in this motion for
summary judgment. 12 To the extent Torres suggests there is a triable issue because it is unclear
whether (and who specifically among) the Chief and Detectives directed Officer Serrano to
secure Torres’s gun, the point amounts to a distinction without a difference. The Chief and
Detectives concede they asked Officer Serrano to secure the gun and, arguendo, that a
constitutional violation could be imputed to them. As a result, it is immaterial who specifically
directed Officer Serrano, and Torres’s arguments do not provide a basis for overcoming qualified
immunity.
13
Clearly-established prong of the qualified-immunity analysis
Even if Torres could establish that Officer Serrano’s warrantless entry and seizure
violated the Fourth Amendment, Torres must satisfy his legal burden to identify, cite, and apply
case law that existed as of June 21, 2015 and served to prohibit Officer Serrano’s actions under
similar circumstances. See Gutierrez v. Cobos, 841 F.3d 895, 901 (10th Cir. 2016). “To qualify
12
At other points in Torres’s response, he discusses state law claims and other parties. The Court, however, has only
considered the relief requested in the motion for summary judgment—dismissal of Count I against the Chief and
Detectives on the basis of qualified immunity. The Court’s ruling relates only to that specific Count and
Defendants.
13
Contrary to Torres’s implication, the Chief and Detectives’ concession assists Torres. Torres has the burden to
establish that these individuals personally participated in a constitutional violation as part of satisfying his burden to
overcome qualified immunity. See Foote v. Spiegel, 118 F.3d 1416, 1423-24 (10th Cir. 1997) (holding that
individual liability § 1983 must be based on personal involvement in the alleged constitutional violation). Without
the concession, Torres would have no factual basis in the record to impute any alleged unconstitutional conduct to
the Chief and Detectives.
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as clearly established, a constitutional right must be sufficiently clear that every reasonable
official would have understood that what he is doing violates that right.” Redmond v. Crowther,
882 F.3d 927, 935 (10th Cir. 2018) (internal quotation marks omitted) (emphasis added). Thus,
to overcome qualified immunity on the clearly-established prong, the plaintiff must identify “a
Supreme Court or Tenth Circuit case that is sufficiently on point,” or cite a “weight of authority
from other courts,” id., in which the officer “was held to have violated the Fourth Amendment.”
White v. Pauly, 137 S. Ct. 548, 552 (2017). The decisional law need not be completely on all
fours, but “existing precedent must have placed the statutory or constitutional question beyond
debate.” Id. As the Supreme Court has translated this mandate, a plaintiff may not rely on cases
that frame Fourth Amendment prohibitions in the abstract—such as the right to be free from
unreasonable searches and seizures—and instead requires a judicial decision “particularized to
the facts of the case” that is capable of giving an officer “fair and clear warning” that his conduct
is unconstitutional. Id (citations and internal quotation marks omitted).
Here, Torres does not cite authority in analyzing whether the Fourth Amendment forbade
Officer Serrano’s warrantless search and seizure, much less offer a case in which an officer was
held to have violated the Constitution under circumstances where there are objective indicia of
consent. Without such a case, the Court cannot say Officer Serrano acted unreasonably in
entering Torres’s residence and receiving the gun and magazines; Torres waived Officer Serrano
into the home and handed over the personal property without objection. See Gutierrez, 841 F.3d
at 901 (upholding summary judgement on qualified immunity where “Plaintiffs did not cite case
law or make a legal argument to show how any infringement of their constitutional rights
violated clearly established law”). Since Officer Serrano did not deprive Torres of any clearly
established constitutional right, the Chief and Detectives’ directive to Officer Serrano to obtain
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the gun likewise cannot serve as predicate for liability. The Court therefore concludes that
qualified immunity is appropriate at the second step of the analysis.
Prosecution for Shooting at a Motor Vehicle
Torres contends that Detective Hobbs violated the Fourth-Amendment by maliciously
prosecuting Torres in the state court on the charge of shooting at a motor vehicle in violation of
N.M. Stat. Ann. § 30-3-8(B). A Fourth-Amendment claim for malicious prosecution requires
the plaintiff to prove “(1) the defendant caused the plaintiff’s continued confinement or
prosecution; (2) the original action terminated in favor of the plaintiff; (3) there was no probable
cause to support the original arrest, continued confinement, or prosecution; (4) the defendant
acted with malice; and (5) the plaintiff sustained damages.” Novitsky v. City of Aurora, 491 F.3d
1244, 1258 (10th Cir. 2007). The Chief and Detectives focus primarily on the lack-of-probablecause element.
Constitutional-violation prong of the qualified-immunity analysis
Detective Hobbs filed the criminal complaint at issue in this case along with a
supporting affidavit. It is beyond debate that an officer “must have probable cause to initiate . . .
prosecution under the Fourth Amendment.” Stonecipher v. Valles, 759 F.3d 1134, 1141 (10th
Cir. 2014). “Probable cause is not a precise quantum of evidence—it does not, for example,
require the suspect’s guilt to be more likely true than false.” Id. (internal quotation marks and
citation omitted). The question is “whether a substantial probability existed that the suspect
committed the crime,” which requires only “something more than a bare suspicion.” Kerns v.
Bader, 663 F.3d 1173, 1187 (10th Cir. 2011) (internal quotation marks and citation omitted).
In this case, Torres admits in the complaint that he shot several times at an occupied,
moving vehicle on June 21, 2015. New Mexico law proscribes “willfully discharging a firearm
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at or from a motor vehicle with reckless disregard for the person of another.” N.M. Stat. Ann. §
30-3-8(B). The car had occupants, circumstantially evidencing a risk of harm. See Adams v.
Williams, 407 U.S. 143, 149 (1972) (“Probable cause does not require the same type of specific
evidence of each element of the offense as would be needed to support a conviction”). Torres’s
allegations in the complaint constitute judicial admissions. See Guidry v. Sheet Metal Workers
Int’l Ass’n, 10 F.3d 700, 716 (10th Cir. 1993); Grynberg v. Bar S. Services, Inc., 527 Fed. Appx.
736, 739 (10th Cir. 2013) (relying on Guidry and determining that statements contained in the
plaintiff's complaint and answer to the counterclaim were binding admissions). These
admissions establish probable cause for prosecution.
Torres fails to address probable cause as a dispositive element of his cause of action.
Instead, Torres suggests Detective Murillo engaged in errors or omissions in “obtaining an afterthe-fact warrant” for Torres’s gun and ammunition. Even if true, it is hard to see how this
contention negates probable cause for prosecution or is material to the analysis. Torres was
charged with shooting a gun at a vehicle, which he does not deny. To the extent Torres is
claiming a separate violation of the Fourth Amendment—a lack of probable cause to seize the
gun and magazines because the search-warrant affidavit contained material omissions, false
representations, or statements made with reckless disregard for the truth—the Court is not
persuaded Torres survives summary judgment. The fact that he gave the gun and magazines to
Officer Serrano without objection and with indicia of consent is not actionable under the doctrine
of qualified immunity.
In any event, Torres is obligated to point to the affidavit and identify specific omissions,
misrepresentations, and make an affirmative showing of dishonesty. See Snell v. Tunnell, 920
F.2d 673, 698 (10th Cir. 1990) (explaining in the warrant context, “to survive qualified
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immunity, a plaintiff must make a substantial showing of deliberate falsehood or reckless
disregard for truth” and demonstrate that, including the omitted information in the warrant, or
excising the false information, probable cause would not exist or remain). Torres has not
attempted to make this showing, and likely could not overcome his own factual averments in the
complaint that support probable cause. 14 In short, Torres has not established a constitutional
violation, and the Chief and Detectives are entitled to qualified immunity.
Clearly-established prong of the qualified-immunity analysis
The unstated crux of Torres’s theory is that he should not have been prosecuted—and is
in fact entitled to money damages as a result—because he was a police officer, albeit off duty,
that followed protocol in shooting at the moving vehicle. Regardless of the wisdom of the
decision to shoot at a moving car, it is true that law enforcement officers are privileged under
New Mexico law and immune from civil actions under federal law for their objectively
reasonable use of force. See Graham v. Connor, 490 U.S. 386, 394 (1989); State v. Gonzales,
642 P.2d 210, 213 (N.M. Ct. App. 1982). Thus, had the occupants of the vehicle sued Torres, he
would have an argument that his use of force was reasonable. Conceivably, Torres could have
used his status as a police officer as a defense in the prosecution. At the same time, Torres does
not identify any legal authority standing for the proposition that the probable cause analysis
requires evidence negating a state-granted privilege or otherwise precludes prosecution where an
off-duty officer admits to shooting at moving vehicle with multiple occupants.
14
The closest Torres comes to making the case for a constitutionally unsound warrant is by suggesting the
magistrate that issued the warrant was unaware that the Silver City Police Department did not collect potentially
exculpatory evidence and destroyed other material evidence. By way of example, Torres claims law enforcement
destroyed or concealed “numerous casing or shells from the gun fight that occurred outside of Plaintiff’s home [,
which] upon information and belief would have demonstrated that Plaintiff did not shoot twelve .40 caliber rounds,
did not hit a vehicle 7 times, did not shoot at a dwelling or occupied building, nor intentionally or unlawfully shot at
a motor vehicle with reckless disregard].” The allegations are not supported by the record and therefore do nothing
to overcome qualified immunity.
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In the probable-cause context, the clearly-established prong is assessed “practically,”
meaning the Court asks “whether there is arguable probable cause for [prosecution].” Kaufmann
v. Higgs, 697 F.3d 1297, 1300 (10th Cir. 2012) (citation omitted). In other words, even if an
officer is “mistaken about whether he possesses actual probable cause,” so long as a reasonable
officer could have believed probable exits, qualified immunity applies. A.M. ex rel. F.M. v.
Holmes, 830 F.3d 1123, 1139-40 (10th Cir. 2016) (citations omitted) (emphasis added). In this
case, the Court finds that even if Torres status as a law enforcement officer privileged his use of
force, Torres’s failure to adduce case law clearly prohibiting a finding probable cause under the
circumstances entitles the Chief and Detectives to qualified immunity against Torres’s claims of
malicious prosecution.
Entitlement to Discovery
Federal Rule of Civil Procedure 56(d) allows the Court to permit discovery before ruling
on a motion for summary judgment “when facts are unavailable to the non-movant.” Under the
rule, the party must “show[] by affidavit or declaration that, for specified reasons, [he] cannot
present facts essential to justify [his] opposition[.]” Fed. R. Civ. P. 56(d). The declaration or
affidavit must “explain[] why facts precluding summary judgment cannot be presented” and
“identify[] the probable facts not available and what steps have been taken to obtain these facts.”
Comm. for the First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir. 1992) (citation
omitted). The party seeking discovery “must also explain how additional time will enable him to
rebut the movant’s allegations of no genuine issue of material fact.” Id. Qualified immunity
heightens the Rule 56(d) inquiry. See Lewis v. City of Ft. Collins, 903 F.2d 752, 758 (10th Cir.
1990). The plaintiff’s application “must demonstrate how discovery will enable [him] to rebut a
defendant’s showing of objective reasonableness” and establish “a connection between the
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information [sought] in discovery and the validity of the . . . qualified immunity defense.” Id. at
759. “[R]elief should not be granted when the desired discovery would not meet the issue on
which the moving party contends there is no genuine factual issue.” Jones v. City of Denver, 854
F.2d 1206, 1211 (10th Cir. 1988).
The Court has already addressed Torres’s Rule 56 affidavit in the context of Defendant
G. George Zsoka and found it lacking. (Doc. 71). The same holds true here. Other than a
generalized statement that discovery is necessary on “all factual matters raised in the Motions for
Summary Judgment,” (Doc. 48-3, Richard’s Aff., ¶4), Torres asserts discovery is needed to
determine (1) whether Torres heard the fight outside his yard or whether the fight was more
generally outside where a crowd had gathered; (2) whether Torres took the gun from his home
and began shooting or whether the driver of the truck shot first before Torres fired at the truck;
(3) who, and/or whether anyone, from the City of Silver City directed Officer Serrano to secure
Torres’s weapon; (4) whether Officer Serrano was invited into the home; and (5) whether
Torres’s gun and ammunition were kept on the hood of Officer Serrano’s police vehicle for the
seven hours it took to obtain a warrant. (Id., ¶¶16-19).
Torres’s Rule 56(d) application is insufficient. As a first impression, Torres seeks
discovery on many questions to which he should know the answer. Even assuming the
categories Torres identified had some nexus to the qualified-immunity analysis, Torres could
have simply submitted his own affidavit to establish, for example, what exactly he heard as it
relates to the fight and its location, who shot first, and that he did not consent to Officer Serrano
entering his home. The Court is, therefore, at a loss why Torres could not present these “facts,”
why additional time is necessary, and how Torres has been diligent. Moreover, while Torres
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may not know who directed Officer Serrano to enter the residence, discovery is not necessary on
that point because the Chief and Detectives concede they did so.
Many of the topics for which Torres seeks additional time for discovery are also resolved
under the summary judgment standard itself. For example, the Court accepted as true Torres
contention that he heard the fight outside, not outside his yard, and that that Torres did not shoot
first. What the affidavit does not explain, however, is why these facts make a difference to the
qualified-immunity inquiry. In other words, Torres does not explain how the facts are material
to his burden to establish a constitutional violation. As explained above, the fact that the car had
occupants and Torres intentionally shot at it underscores probable cause for prosecution despite
Torres’s belief that he was following protocol. Ultimately, discovery at the summary judgment
stage is unnecessary when the Court is already required to accept a plaintiff’s supported version
of events as true. Torres has not demonstrated that additional time and discovery are necessary
for him to adequately respond to Chief Reynolds, and Detectives Murillo and Hobbs’ motion for
summary judgment.
CONCLUSION
Chief Reynolds, Detective Murillo, and Detective Hobbs are entitled to qualified
immunity. Torres has not shown any violation of a clearly established constitutional right
premised on Officer Serrano’s entry into Torres’s home and receipt of Torres’s gun and
magazines. Nor has Torres demonstrated that his prosecution for shooting at a vehicle was
undertaken without probable cause. Because the Court cannot discern and Torres does not
support any other theory of relief against the Chief and Detectives in Count I, summary judgment
is appropriate notwithstanding Torres’s request for time to undertake discovery.
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IT IS, THEREFORE, ORDERED that Chief Reynolds and Detectives Murillo and
Hobbs’ motion to dismiss and/or for summary judgment (Doc. 33) is GRANTED IN PART and
DENIED IN PART. The motion is DENIED to the extent it seeks dismissal on the basis of
Federal Rule of Civil Procedure 12(b)(6), but GRANTED to the extent is seeks summary
judgment on the basis of qualified immunity.
IT IS FURTHER ORDERED that Torres’s request for additional time to conduct
discovery is DENIED.
IT IS FURTHER ORDERED that Count I as it relates to Chief Reynolds and
Detectives Murillo and Hobbs is DISMISSED WITH PREJUDICE.
______________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
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