Ramirez et al v. Board of County Commissioners of Sierra County et al

Filing 94

MEMORANDUM OPINION AND ORDER by District Judge James O. Browning GRANTING 72 MOTION for Summary Judgment and Memorandum in Support, DENYING 54 First MOTION for Partial Summary Judgment Against Jacob Jones and Malik Ali on Unreasonable Seizure and Excessive Force Claims, GRANTING 69 Opposed MOTION for Summary Judgment . (arp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ALVIN RAMIREZ and SHANNON
RAMIREZ,
Plaintiffs,
vs.

No. CIV 22-0148 JB/GJF

BOARD OF COUNTY COMMISSIONERS
OF SIERRA COUNTY; NEW MEXICO
DEPARTMENT OF PUBLIC SAFETY;
DEPUTY JACOB JONES, in his individual and
official capacities; OFFICER MALIK ALI, in
his individual and official capacities, and JOEL
TREJO, in his individual and official capacities,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on: (i) the Opposed Motion for and
Memorandum in Support of Partial Summary Judgment Against Defendants Jacob Jones and
Malik Ali on Unreasonable Seizure and Excessive Force Claims, filed August 14, 2023
(Doc. 54)(“A. Ramirez MSJ”); 1 (ii) Officer Malik Ali’s Motion for Summary Judgment on the
Basis of Qualified Immunity and for Failure to Provide Factual Support for Plaintiffs’ Their Claims
[sic] and Memorandum in Support, filed October 18, 2023 (Doc. 69)(“Ali MSJ”); and (iii) the
Defendants’ Motion for Summary Judgment on the Basis of Qualified Immunity and on Other

1

On March 25, 2024, the Court entered an Order denying the Plaintiff’s Opposed Motion
for and Memorandum in Support of Partial Summary Judgment Against Defendants Jacob Jones
and Malik Ali on Unreasonable Seizure and Excessive Force Claims, filed August 14, 2023
(Doc. 54). See Order at 1-2, March 25, 2024 (Doc. 89)(“Order”). In the Order, the Court stated
that it would “issue . . . a Memorandum Opinion at a later date more fully detailing its rationale
for this decision.” Order at 1 n.1. This Memorandum Opinion is the promised opinion.

Grounds and Memorandum in Support, filed October 19, 2023 (Doc. 72)(“Jones MSJ”). The
Court held a hearing on November 21, 2023. See Clerk’s Minutes, filed November 21, 2023
(Doc. 83). The primary issues are: (i) whether a triable issue of fact remains whether Defendants
Jacob Jones and Malik Ali violated Plaintiffs Alvin Ramirez and Shannon Ramirez’ rights under
the Fourth Amendment to the Constitution of the United States of America to be free from
unreasonable seizure and to be free from excessive force; and (ii) whether Defendants Jones and
Ali are entitled to qualified immunity. The Court concludes that: (i) no triable factual issue exists
whether Defendants Jones and Ali violated the Plaintiffs’ rights under the Fourth Amendment,
because the record demonstrates indisputably that Jones and Ali’s conduct did not violate A.
Ramirez or S. Ramirez’ Fourth Amendment rights; and (ii) Jones and Ali are entitled to qualified
immunity. Accordingly, the Court denies the A. Ramirez MSJ, grants the Ali MSJ, and grants the
Jones MSJ. Because these motions’ dispositions are dispositive of the Ramirezes’ action, the
Court will enter Final Judgment.
FACTUAL BACKGROUND
A. Ramirez and S. Ramirez’ lawsuit arises from their encounter with Jones and Ali, law
enforcement officers who responded to a 911 call about A. Ramirez’ conduct at the Ramirez
homestead. The Court draws its facts from the A. Ramirez MSJ, from Ali and Jones’ responses to
the A. Ramirez MSJ, and from the Ali MSJ and the Jones MSJ. 2 See Defendant Jones’ Response

2

A. Ramirez and S. Ramirez do not respond to either the Jones MSJ or to the Ali MSJ; the
Federal Rules of Civil Procedure and local rules authorize the Court to deem undisputed all
asserted material facts that a nonmovant does not specifically dispute, see Fed. R. Civ. P. 56(e)(2)
(“Failing to Properly Support or Address a Fact. If a party . . . fails to properly address another
party’s assertion of fact . . . , the court may . . . consider the fact undisputed for purposes of the
motion . . . .”); D.N.M. LCvR 56.1(b) (“The response must contain a concise statement of the
material facts cited by the movant as to which the non-movant contends a genuine issue does
exist. . . . All material facts set forth in the Memorandum will be deemed undisputed unless
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to Plaintiff’s Partial Motion for Summary Judgment, filed August 28, 2023 (Doc. 58)(“Jones
Response”); Response in Opposition to Plaintiffs’ Motion for Partial Summary Judgment, filed
August 28, 2023 (Doc. 59)(“Ali Response”). The Court also draws on record materials, including

specifically controverted.”). Because the Plaintiffs do not respond to the Defendants’ MSJ, the
federal rules authorize the Court to deem undisputed the Jones MSJ and Ali MSJ’s material facts.
The Ramirezes maintain, however, that the Defendants’ motions are not unopposed. At
the hearing, the Ramirezes acknowledged that they should have responded to the two Defendants’
motions for summary judgment. They requested, however, that the Court treat their own
A. Ramirez MSJ functionally as a response to the Defendants’ motions for summary judgment:
THE COURT:
number 69.
MS. WILLIAMS:
THE COURT:
number 69?

I’m not seeing any response to [Ali’s MSJ,] motion
There is no response filed, Your Honor.
So is that unopposed, Mr. Cardenas, document

....
MR. CARDENAS: [T]here is not a response, Your Honor, and I
apologize about that, but I would ask the Court to take my motion and reapply [it,]
as the briefing, as it would have briefed the exact same issues.
Tr. at 5:16-6:6 (Court, Williams, Cardenas).
Although the rules authorize the Court to deem undisputed the Jones MSJ’s and Ali MSJ’s
asserted facts, see Fed. R. Civ. P. 56(e)(2); D.N.M. LCvR 56.1(b), the Court will, to the extent
possible, grant the Plaintiffs’ request to treat the A. Ramirez MSJ’s facts statement as responsive
to the Defendants’ facts statements. Cf. Fed. R. Civ. P. 1 (“These rules . . . should be construed,
administered, and employed by the court and the parties to secure the just . . . determination of
every action and proceeding.”). This approach is possible when the A. Ramirez MSJ offers one
version of the same set of facts that the Ali MSJ or Jones MSJ offers -- e.g., characterizing the
same events at issue. In such a scenario, the Court will deem the Plaintiffs as disputing the
Defendants’ version of the facts. The Court’s allowance, however, does not extend to areas where
the A. Ramirez MSJ does not already overlap with the Ali MSJ or the Jones MSJ. For example,
when the Ali MSJ or Jones MSJ asserts facts on a subject that the A. Ramirez MSJ does not
address, then it is not possible for the Court to treat the A. Ramirez MSJ as responsive to the
Defendants’ version. In such situations, so long as the Defendants’ motions point to record
evidence, the Court will deem undisputed the Defendants’ facts.

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a recording of the 911 call and footage from Jones’ lapel camera. See Fed. R. Civ. P. 56(c)(3)
(“The court need consider only the cited materials, but it may consider other materials in the
record.”); 1. 2019-12-08_16.46.27_Ch26-Kyndra Pacheco at 00:00-00:35 (“911 Call”), filed with
Notice

of

Filing,

filed

August

14,

2023

(Doc. 55)(“Notice

of

Filing”);

1.

2019_1208_170526H101251_001600-001 at 00:00-05:00 (“Jones Lapel Video A”), filed with
Notice of Filing; 2. 2019_1208_173527H101251_001600-002 at 07:45-08:15 (“Jones Lapel Video
B”), filed with Notice of Filing. The Court states the undisputed material facts in the text. See
Fed. R. Civ. P. 56. The Court specifically notes the facts that are disputed, or purportedly disputed,
in the footnotes. The Court may treat as undisputed what the adduced documentary materials
clearly depict. See York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008)(“‘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 . . . .’”
(quoting Scott v. Harris, 550 U.S. 372, 380 (2007))).
On December 8, 2019, police dispatch received a 911 call about an individual, later
determined to be A. Ramirez. See A. Ramirez MSJ ¶ 1, at 6 (asserting fact); Jones Response ¶ 1,
at 5 (admitting fact); Ali Response at 3 (admitting fact); Jones MSJ ¶¶ 4-6, at 3-4 (asserting fact);
Ali MSJ ¶¶ 2-3, at 1-2 (asserting fact); 911 Call at 00:00-00:35. The female 911 caller reported
that her neighbor, A. Ramirez, was drunk, screaming obscenities, goading neighbors to fight him,
and waving a rifle around. 3 See A. Ramirez MSJ ¶ 1, at 6 (asserting fact); Jones Response ¶ 1, at

3

The Plaintiffs’ operative complaint alleges that A. Ramirez was waving around a BB gun.
See Ramirez’ Second Amended Complaint for Civil Rights Violations ¶ 13, at 3, filed May 12,
2022 (Doc. 20)(“SAC”)(“Mr. Ramirez went outdoors, Daisy BB Gun in hand, and screamed in
anger and frustration toward the home of Neighbor No. 1.”). The A. Ramirez MSJ, however, does
not assert as a fact that A. Ramirez was waving a BB gun around. See A. Ramirez MSJ at 1-5 (no
reference to BB gun or air pellet gun). The Jones MSJ and the Ali MSJ assert the BB gun fact but
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5 (admitting fact); Ali Response at 3 (admitting fact); Jones MSJ ¶¶ 4-6, at 3-4 (asserting fact); Ali
MSJ ¶¶ 2-3, at 1-2 (asserting fact); 911 Call at 00:00-00:35. The 911 caller asserts that A. Ramirez
was “threatening everyone” and that A. Ramirez said he was going to “start World War III with
us,” i.e., with his neighbors. 4 The 911 caller does not indicate whether A. Ramirez pointed his
rifle at anyone or had fired his rifle. See A. Ramirez MSJ ¶ 6, at 7 (asserting fact); Jones Response
¶ 6, at 5 (admitting fact); Ali Response at 3 (admitting fact); 911 Call at 00:00-00:35. Police
dispatch informed Jones and Ali, a Deputy of the Sierra County Sheriff’s Department and a New

cites only the SAC and no other record evidence. See Jones MSJ ¶ 3, at 3; Ali MSJ ¶ 2, at 1-2.
No record evidence indicates that the object that A. Ramirez’ neighbors observed him waving was
a BB gun rather than a firearm.
4

The Court deems the above-the-line proposition undisputed. Unambiguous record
evidence establishes this proposition. See 911 Call at 00:15-00:35; York v. City of Las Cruces,
523 F.3d at 1210. Moreover, the parties agree on the substance of this proposition. The Plaintiffs
assert that the 911 caller states that A. Ramirez was threatening neighbors, although the Plaintiffs
assert that the threats were allegedly not specific, but general. See A. Ramirez MSJ ¶ 5, at 7 n.5
(asserting fact)(“No allegations were made during the call to dispatch that the neighbor had made
specific threats to harm someone, rather the threats were generalized.”); id. n.8 (“Mr. Ramirez was
reported as threatening that he would start ‘World War 3.’”). Jones disputes that the 911 call did
not allege specific threats. See Jones Response ¶ 5, at 5 (“The reporting party informed dispatch
that Plaintiff was threatening ‘us’, and Dispatch advised Jones and Ali that Plaintiff was
threatening the ‘neighbors’ with a rifle. Jones recalls the dispatch as “a man waving around a rifle
threatening people.’”). Ali does not specifically dispute the A. Ramirez MSJ’s characterization of
the call. See Ali Response at 3 (“In response to Plaintiffs’ Fact Nos. 1-10, 12-30, 31-33, 35-36,
47 and 49, the referenced documents and videos are the best evidence of the facts being alleged
and do not need to be revised by Plaintiffs’ faulty reiteration and interpretation. These facts are
disputed to the extent they are inconsistent with the referenced documents and videos.”). The
Jones MSJ and the Ali MSJ both assert the 911 call’s general contents. Jones MSJ ¶ 5, at 3
(“Dispatch received information from the neighbor (the calling or reporting party), that Plaintiff
was waving a rifle and ‘threatening everyone’ and ‘telling them that he’s going to start World War
3 with us’” (quoting 911 Call); Ali MSJ ¶ 2, at 1-2 (“A neighbor called the Sierra County Sheriff’s
dispatch and stated that Mr. Ramirez was brandishing a gun and threatening to shoot people.”).
Aside from the characterization whether the 911 call’s alleged threats are specific or not, the parties
do not dispute that the call contains the threats described and quoted in the above-the-line
proposition. Accordingly, the Court deems undisputed that the 911 caller made the assertions
described above.

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Mexico State Police Officer, respectively, of the call’s contents -- namely, that A. Ramirez had a
rifle and was threatening his neighbors. See A. Ramirez MSJ ¶¶ 1, 3-4, at 6 (asserting fact); Jones
Response ¶ 1, 3-4 at 5 (admitting fact); Ali Response at 3 (admitting fact); Jones MSJ ¶¶ 5-6, at 34 (asserting fact); Ali MSJ ¶¶ 11, 18, at 2-3 (asserting fact); Dispatch to Officers at 00:00-00:20.
The area in Cabello, New Mexico, where the Ramirezes live and where the events occurred,
is rural and remote. See A. Ramirez MSJ ¶ 8, at 7 (asserting fact); Jones Response ¶ 8, at 6
(admitting fact); Ali Response at 3 (admitting fact). When Jones and Ali arrived on the scene, they
spoke to the reporting neighbors and a second neighbor, each of whom confirmed that A. Ramirez
was screaming and threatening his neighbors. See A. Ramirez MSJ ¶¶ 10-11, 13-14, 16-22, at 78 (asserting fact); Jones Response ¶ 10-11, 13-14, 16-22, at 6 (admitting fact); Ali Response at 3
(admitting fact); Jones MSJ ¶¶ 7, 9-10, at 4 (asserting fact); Ali MSJ ¶ 4, at 2 (asserting fact); Jones
Lapel Video A at 00:00-05:00. The second neighbor stated that she had on a prior occasion called
police about A. Ramirez threatening his neighbors, and Jones recalled that he was the responding
officer on that prior occasion. See Jones MSJ ¶ 10, at 4 (asserting fact); Jones Lapel Video A at
03:13-04:23. During these interviews, A. Ramirez was audible screaming obscenities from a
distance. 5

5

The Court deems the above-the-line proposition undisputed. Unambiguous record
evidence establishes this proposition. See Jones Lapel Video A at 00:00-05:00; York v. City of
Las Cruces, 523 F.3d at 1210. Moreover, the parties agree on the substance of this proposition.
The Plaintiffs assert that A. Ramirez was yelling when officers arrived. See A. Ramirez MSJ ¶ 11,
at 7 (“Defendants Jones and Ali decide to first confront Mr. Ramirez due to him yelling as they
arrive and them being unsure whether or not he had a weapon.”). Jones also asserts that
A. Ramirez was yelling audibly. Jones MSJ ¶ 11, at 58 (“Deputy Jones testified that the whole
time he was standing with the reporting party, he could hear Plaintiff yelling and screaming and
that he had no idea if Plaintiff was still armed or what his intentions were by them (the Officers)
showing up there either.”); Jones MSJ ¶ 11, at 4-5 (“[T]he whole time [Jones] was standing with
the reporting party, he could hear Plaintiff yelling and screaming and that he had no idea if Mr.
Ramirez was still armed or what his intentions were.”). The Plaintiffs’ asserted fact, however, also
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When they approached A. Ramirez, Jones and Ali observed that A. Ramirez did not have
a rifle in his hands, but he shouted obscenities at them and refused to engage with them when they
tried to speak with him. See A. Ramirez MSJ ¶¶ 25-31, at 9 (asserting fact); Jones Response ¶¶ 2531, at 7 (admitting fact); Ali Response at 3 (admitting fact); Jones MSJ ¶¶ 12-13, at 5 (asserting
fact); Ali MSJ ¶ 4, at 2 (asserting fact); Jones Lapel Video A at 05:30-06:10. The rifle’s location
was unknown to Jones and Ali, and they did not know if A. Ramirez otherwise was armed. See
Jones MSJ ¶ 11, 16, at 4-5 (asserting fact); Jones Lapel Video A at 05:30-06:15. Instead of
responding to Jones and Ali’s attempts to communicate with him, A. Ramirez turned away from
them and began heading into his residence. See Ramirez ¶¶ 27-31, at 9 (asserting fact); Jones
Response ¶¶ 27-31, at 7 (admitting fact); Ali Response at 3 (admitting fact); Jones MSJ ¶ 13, at 5
(asserting fact); Ali MSJ ¶ 4, at 2 (asserting fact); Jones Lapel Video A at 06:05-06:15. At that
time, from about fifteen feet away, Jones and Ali rushed A. Ramirez, Jones tackled A. Ramirez to
the ground, leaning his shoulder into A. Ramirez as the two men collided, and Jones and Ali
handcuffed A. Ramirez. See A. Ramirez MSJ ¶¶ 33, 35, at 10 (asserting fact); Jones Response
¶¶ 33, 35, at 7-8 (admitting fact); Ali Response at 3 (admitting fact); Jones MSJ ¶ 14, at 5 (asserting
fact); Ali MSJ ¶ 19, at 4 (asserting fact); Jones Lapel Video A at 06:10-06:15. The whole action

asserts that the officers did not “begin[] their investigation by gathering information regarding the
basis of the reporting party’s call,” A. Ramirez MSJ ¶ 11, at 7, and it is this portion of the Plaintiffs’
fact that the Defendants dispute. See Jones MSJ ¶ 11, at 6 (“The Fact is disputed. Jones received
information from dispatch and upon arrival could hear Plaintiff screaming.”); Ali MSJ ¶ 11, at 3
(“Officer Ali specifically disputes this fact and points out that there was no prohibition for a law
enforcement officer to decide to approach a suspect rather than interview the person who made the
call to dispatch.”). The Court deems conclusory the Plaintiffs’ assertion that the officers performed
no investigation, which states a quasi-legal conclusion whether the Defendants’ actions were
investigatory. Moreover, disagreement whether the officers’ conduct did not amount to a followup investigation does not obviate agreement among the parties that officers could hear A. Ramirez
yelling obscenities from a distance. The record unambiguously establishes that fact, and the Court
deems it undisputed.
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of disabling A. Ramirez by tackling him and placing him in handcuffs lasted approximately thirty
seconds. See Jones Lapel Video A at 06:16-06:45. The location where Jones and Ali apprehended
A. Ramirez was on the walkway into A. Ramirez’ home, approximately five feet from the foot of
a short staircase, and was inside a chain-link fence approximately three or four feet high that does
not obscure an onlooker’s view onto the Ramirez front lawn. See A. Ramirez MSJ ¶¶ 31, 33, 39,
at 10 (asserting fact); Jones Response ¶ 31, 33, 39, at 7-8 (admitting fact); Ali Response at 3-5
(admitting fact); Jones MSJ ¶ 13, at 5 (asserting fact); Ali MSJ ¶ 19, at 4 (asserting fact); Jones
Lapel Video A at 06:05-06:45. One minute after placing A. Ramirez in handcuffs, Jones, with
A. Ramirez’ permission, raises A. Ramirez off the ground so that A. Ramirez can be seated more
comfortably while detained. See A. Ramirez MSJ ¶ 35, at 10; Jones Response ¶ 35, at 8 (admitting
fact); Ali Response at 3 (admitting fact); Jones Lapel Video A at 07:35-09:10. Jones and Ali later
permit A. Ramirez to stand while he speaks with them. See Jones Lapel Video A at 06:35-07:00.
Jones stated that he was not yet placing A. Ramirez under arrest, but only was detaining
A. Ramirez for investigation. See Jones MSJ ¶ 17, at 6 (asserting fact); Jones Lapel Video A at
18:45.
A. Ramirez, although he denied that he pointed his rifle at anyone, told the officers that
earlier that day he “shot [his] fucking .22 off” in the area. 6 See Jones MSJ ¶ 18, at 6 (asserting
fact); Jones Lapel Video A at 07:52-08:05. A. Ramirez appeared intoxicated and acknowledged

6

A “.22” is a standard size for a firearm cartridge. See .22 Caliber, Wikipedia,
https://en.wikipedia.org/wiki/.22_caliber (last visited August 22, 2024). It is used as ammunition
for .22 long rifles, although it is also a standard air gun pellet size caliber. As noted above, see
n.3, at 4, Ramirez’ SAC asserts that he had been waving a BB gun in the air, see SAC ¶ 13, at 3,
so he may have been referencing to the officers that he fired his “.22” BB gun. Jones Lapel Video
A at 07:52-08:05. As noted, however, there is no record evidence that A. Ramirez possessed a
.BB gun, rather than a real firearm. See n.3, at 4-5, supra.

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that he was drunk. See Jones MSJ ¶¶ 19-21, at 6 (asserting fact); Jones Lapel Video A at 10:3010:40.

He also acknowledged the propriety of his apprehension and detention under the

circumstances, in this exchange:
Jones:
Do you see where I’m coming from on the detention portion?
‘Cus when we walked up, you’re screaming and hollering at us. You turned the
corner to go up to the house, we don’t know if you’re gonna get a gun, or what
you’re gonna do.
A. Ramirez:

That’s true. That’s true, bro.

Jones Lapel Video A at 13:00-13:30. See Jones MSJ ¶ 23, at 6 (asserting fact). A. Ramirez
acknowledged he had acted improperly: “I understand; I did wrong.” Jones Lapel Video A at
14:45. See Jones MSJ ¶ 24, at 6 (asserting fact).
S. Ramirez, A. Ramirez’ wife, emerged from the house during the encounter, and spoke
with A. Ramirez and the officers. See Jones Lapel Video A at 16:20-22:30. During the remainder
of Jones and Ali’s encounter with A. Ramirez, Jones and Ali did not handcuff, restrain or place
their hands on S. Ramirez. See Jones MSJ ¶¶ 32a-33, at 7 (asserting fact); 7 Ali MSJ ¶ 28, at 5
(asserting fact); Jones Lapel Video A at 05:30-22:30. The officers did not tell S. Ramirez that they
were detaining her or that she was not free to leave. See Jones MSJ ¶¶ 32a-33, at 7 (asserting fact);
Ali MSJ ¶ 28, at 5 (asserting fact); Jones Lapel Video A at 05:30-20:55.
While Ali continued to detain A. Ramirez, Jones spoke again with the reporting neighbors,
who, upon Jones’ inquiries, clarified that A. Ramirez had not pointed his rifle at them, but instead
only waved it around. See Jones MSJ ¶¶ 26, 28, at 6-7 (asserting fact); Jones Lapel Video B at

7

What the Court labels the Jones MSJ’s ¶¶ 32a-33 reflects a typographical error in the Jones
MSJ: there are two paragraphs labeled “31.” and two paragraphs labeled “32.” See Jones MSJ at
7. The Court therefore refers to the first and second labeled “32.” paragraphs as “32a” and “32b”
respectively.

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07:45-08:15. The neighbors showed Jones cellphone video that they took that day showing
A. Ramirez on his property, waving his rifle, gesticulating at the neighbors, and shouting
obscenities at them. See Jones MSJ ¶ 28, at 6-7 (asserting fact); Jones Lapel Video B at 02:0004:00. A. Ramirez was charged with negligent firearm use, resisting arrest, and public nuisance
charges. See Jones MSJ ¶¶ 29, 31 at 7 (asserting fact); Criminal Complaint, filed August 14, 2023
(Doc. 54-1)(“State Criminal Complaint”).
PROCEDURAL BACKGROUND
The operative complaint, the SAC, contains live allegations that Jones and Ali, violated A.
Ramirez’ and S. Ramirez’ Fourth Amendment rights against unreasonable search and seizure. In
the course of the litigation, the Plaintiffs have dropped a number of liability claims. For example,
the Plaintiffs have dismissed voluntarily with prejudice claims under the New Mexico Tort Claims
Act that the SAC asserts. See Stipulated Order Dismissing Counts IV-X of the Second Amended
Complaint with Prejudice at 1, filed March 25, 2024 (Doc. 90)(“Stipulated Dismissal”). The
Plaintiffs also have dismissed the SAC’s freestanding excessive force claim, with the
understanding that they still may assert excessive force as a theory of Fourth Amendment seizure
liability, a claim which the parties acknowledge remains live. See Stipulated Dismissal at 1
(“Count IV - X of the Second Amended Complaint . . . are hereby dismissed with prejudice.”);
SAC ¶¶ 74-78, at 9 (containing a claim for “Count VIII - Excessive Force”). Although the
Stipulated Dismissal does not dismiss explicitly Sierra County, the Stipulated Dismissal dismisses
the SAC’s “respondeat superior” liability claim against the Sierra County, which was the SAC’s
only claim of liability against Sierra County.
The Plaintiffs previously had dismissed other Defendants that were originally named. Per
the parties’ stipulation, the Court dismissed without prejudice Defendant Joel Trejo.

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See

Stipulated Order Dismissing Joel Trejo Without Prejudice at 1, filed March 24, 2023 (Doc. 36).
Per the parties’ stipulation, the Court dismissed with prejudice Defendant New Mexico
Department of Public Safety. See Stipulated Order of Dismissal with Prejudice of Defendant New
Mexico Department of Public Safety at 1, filed October 24, 2023 (Doc. 75). The Plaintiffs also
indicated their non-opposition to “[d]ismissal of all municipal liability claims brought against
Defendant Board of County Commissioners[] as requested in [Doc 72],” and “[d]ismissal of
Plaintiff Alvin Ramirez’s claim of malicious prosecution as requested in [Doc 72].” Plaintiffs’
Notice of Non-Opposition, filed November 20, 2023 (Doc. 82). The Court, however, has not
entered a stipulated order regarding the Board of County Commissioners and the malicious
prosecution claim. 8
In the A. Ramirez MSJ, A. Ramirez argues that he is entitled to summary judgment that
the Defendants violated his Fourth Amendment rights. Notably, the A. Ramirez MSJ contains no
argument how the Defendants violated S. Ramirez’ rights: the A. Ramirez MSJ focuses only on
how the Defendants violated A. Ramirez’ rights. See A. Ramirez MSJ at 16-25. Subsequently,
Jones and Ali each moved for summary judgment on the basis of qualified immunity. See Jones
MSJ at 1; Ali MSJ at 1. The Court held a hearing on the A. Ramirez MSJ, the Jones MSJ and the
Ali MSJ. See Transcript of Hearing, taken November 21, 2023. 9 The Court entered an Order
denying the A. Ramirez MSJ, because the Court concludes there that the undisputable facts

8

Because the parties have stipulated to the Board of County Commissioners of Sierra
County’s dismissal and the malicious prosecution claim’s dismissal, the Court will dismiss that
party and that claim. See infra at 44.
9

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

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demonstrate that Jones and Ali’s conduct is Constitutionally justified and that they did not violate
A. Ramirez’ Fourth Amendment rights. See Order at 1, filed March 25, 2024 (Doc. 89)(“Order”).
The Court’s Order does not address the Jones MSJ or the Ali MSJ.
LAW REGARDING QUALIFIED IMMUNITY
Under the doctrine of qualified immunity, government officials performing “discretionary
functions generally are shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When a defendant asserts qualified
immunity, therefore, the plaintiff must demonstrate: (i) that the defendant’s actions violated his or
her constitutional or statutory rights; and (ii) that the right was clearly established at the time of
the alleged misconduct. See Est. of Smart by Smart v. City of Wichita, 951 F.3d 1161, 1178 (10th
Cir. 2020). A right is clearly established when it is “sufficiently clear that every reasonable official
employee would have understood that what he is doing violates that right.” Reichle v. Howards,
566 U.S. 658, 664 (2012).
In the Tenth Circuit, until recently, this rule meant that a right is clearly established only
when there is a factually similar “Supreme Court or Tenth Circuit decision on point, or if the
clearly established weight of authority from other courts shows that the right must be as the
plaintiff maintains.” Truman v. Orem City, 1 F. 4th 1227, 1235 (10th Cir. 2021)(quoting Thomas
v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014)). The Supreme Court of the United States,
however, recently suggested that a plaintiff need not, in every situation, point to a case that is
sufficiently factually similar. See Taylor v. Riojas, 141 S. Ct. 52, 54 (2020)(“Taylor”)(“[N]o
reasonable correctional officer could have concluded that, under the extreme circumstances of this
case, it was constitutionally permissible to house [the plaintiff] in such deplorably unsanitary

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conditions for such an extended period of time.”). The Tenth Circuit has understood Taylor to
clarify that it is no longer the case that an almost-identical case must exist for a constitutional
violation to be clearly established. See Truman v. Orem City, 1 F. 4th at 1241 (“Just like any
reasonable corrections officer should have understood the inmate in Taylor’s conditions of
confinement offended the Constitution, so too should any reasonable prosecutor understand that
providing a medical examiner fabricated evidence and then putting him on the stand to testify
based on that false information offends the Constitution.”). The Court proceeds with both lines of
analysis:
An officer therefore is entitled to qualified immunity unless a plaintiff can
demonstrate: (i) that the defendant’s actions violated his or her constitutional or
statutory rights; and (ii) that the right was clearly established either (a) by a
factually similar Supreme Court or Tenth Circuit case on point, see Thomas v.
Kaven, 765 F.3d at 1194, or, in rare cases, by “general constitutional principles,”
Routt v. Howry, 835 F. App’x. at 382 -- at the time of the alleged misconduct, or
(b) because the conduct was “particularly egregious” such that “any reasonable
officer should have realized” it was unlawful, Taylor, 141 S. Ct. at 54.
Caldwell v. Univ. of N.M. Bd. of Regents, No. CIV 20-0003, 2023 WL 4236016, at *36 (D.N.M.
June 28, 2023)(Browning, J.).
To evaluate a motion to dismiss on the grounds of qualified immunity, “a court must
consider ‘whether the facts that a plaintiff has alleged . . . make out a violation of a constitutional
right,’ and ‘whether the right at issue was clearly established at the time of defendant’s alleged
misconduct.’” Leverington v. City of Colo. Springs, 643 F.3d 719, 732 (10th Cir. 2011)(quoting
Pearson v. Callahan, 555 U.S. 223, 232 (2009)). The Tenth Circuit “uses the same standard in
evaluating dismissals in qualified immunity cases as to dismissals generally.” Shero v. City of
Grove, 510 F.3d 1196, 1200 (10th Cir. 2007). Because qualified immunity “is an immunity from
suit rather than a mere defense to liability,” Serna v. Colo. Dep’t of Corr., 455 F.3d 1146, 1150

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(10th Cir. 2006), “the claim is dismissed” where the “plaintiff’s allegations, if true” cannot
“establish a constitutional violation,” Shero v. City of Grove, 510 F.3d at 1204.
LAW REGARDING FOURTH AMENDMENT SEARCHES
The Fourth Amendment protects “[t]he 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
affirmation, and particularly describing the place to be searched, and the persons or things to be
seized.” U.S. Const. amend. IV. In determining whether a Fourth Amendment violation has
occurred, courts must “assur[e] preservation of that degree of privacy against government that
existed when the Fourth Amendment was adopted.” United States v. Jones, 565 U.S. 400, 406
(2012)(Scalia, J.)(alteration in original)(quoting Kyllo v. United States, 533 U.S. 27, 31
(2001)(Scalia, J.)).
“Not all searches require a warrant.
reasonableness.”

The hallmark of the Fourth Amendment is

United States v. Harmon, 785 F. Supp. 2d 1146, 1157 (D.N.M.

2011)(Browning, J.). See United States v. McHugh, 639 F.3d 1250, 1260 (10th Cir. 2011)(“[T]he
ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” (quoting Brigham City, Utah
v. Stuart, 547 U.S. 398, 403 (1978))). “In the criminal context, reasonableness usually requires a
showing of probable cause.” Herrera v. Santa Fe Pub. Sch., 792 F. Supp. 2d 1174, 1184 (D.N.M.
2011)(Browning, J.)(quoting Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cty. v.
Earls, 536 U.S. 822, 828 (2002)). The Supreme Court has stated in the law enforcement context
that “searches conducted outside the judicial process, without prior approval by judge or
magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few
specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357

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(1967)(footnotes omitted).
1.

Reasonable Government Searches.

“[B]ecause ‘the ultimate touchstone of the Fourth Amendment is reasonableness,’” when
a search implicating the Fourth Amendment has occurred, the district court must determine
whether the search is reasonable. Kentucky v. King, 563 U.S. 452, 459 (2011)(quoting Brigham
City v. Stuart, 547 U.S. 398, 403 (2006)). See Samson v. California, 547 U.S. 843, 848
(2006)(“‘[U]nder our general Fourth Amendment approach’ we ‘examin[e] the totality of the
circumstances’ to determine whether a search is reasonable within the meaning of the Fourth
Amendment.” (quoting United States v. Knights, 534 U.S. 112, 118 (2001))). “Although the
Fourth Amendment ordinarily requires the degree of probability embodied in the term ‘probable
cause,’ a lesser degree satisfies the Constitution when the balance of governmental and private
interests makes such a standard reasonable.” United States v. Knights, 534 U.S. at 121. The
Supreme Court has justified this balancing test with the recognition that “[t]he Fourth Amendment
does not protect all subjective expectations of privacy, but only those that society recognizes as
‘legitimate.’” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654 (1995)(quoting New Jersey v.
T.L.O., 649 U.S. 325, 338 (1985)).
“Whether a search is reasonable ‘is determined by assessing, on the one hand, the degree
to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed
for the promotion of legitimate governmental interests.’” Samson v. California, 547 U.S. at 848
(quoting United States v. Knights, 534 U.S. at 118). See Banks v. United States, 490 F.3d 1178,
1184 (10th Cir. 2007)(stating that the Supreme Court “described the totality-of-the-circumstances
test as one where ‘the reasonableness of a search is determined by assessing, on the one hand, the
degree to which it intrudes upon an individual’s privacy, and on the other, the degree to which it

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is needed for the promotion of legitimate governmental interests’” (quoting United States v.
Knights, 534 U.S. at 119-20)).
As the text of the Fourth Amendment indicates, the ultimate measure of the
constitutionality of a governmental search is “reasonableness.” At least in a
case . . . where there was no clear practice, either approving or disapproving the
type of search at issue, at the time the constitutional provision was enacted, whether
a particular search meets the reasonableness standard “‘is judged by balancing its
intrusion on the individual’s Fourth Amendment interests against its promotion of
legitimate governmental interests.’”
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. at 652-53 (1995)(quoting Skinner v. Ry. Labor
Executives’ Ass’n, 489 U.S. 602, 617 (1989)). The Supreme Court has held that the test of
reasonableness under the Fourth Amendment is not a concrete test:
The test of reasonableness under the Fourth Amendment is not capable of
precise definition or mechanical application. In each case [determining
reasonableness] requires a balancing of the need for the particular search against
the invasion of personal rights that the search entails. Courts must consider the
scope of the particular intrusion, the manner in which it is conducted, the
justification for initiating it, and the place in which it is conducted.
Bell v. Wolfish, 441 U.S. 520, 559 (1979).
In analyzing the first factor -- the intrusion on the individual’s privacy -- courts look to the
individual’s privacy expectations. See, e.g., United States v. Knights, 534 U.S. at 119-120 (noting
that the petitioner had a “significantly diminished . . . reasonable expectation of privacy,” because
a condition of his probation was to consent to search of his apartment without notice or probable
cause, and because he was clearly notified and informed of the provision); Banks v. United States,
490 F.3d at 1186-87 (noting that the plaintiffs, convicted felons on probation, have a more limited
expectation of privacy than the ordinary citizen, and noting that “[w]hat is ‘reasonable’ under the
fourth amendment for a person on conditional release, or a felon, may be unreasonable for the
general population”); Boling v. Romer, 101 F.3d 1336, 1340 (10th Cir. 1999)(“[W]hile obtaining

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and analyzing the DNA or saliva of an inmate convicted of a sex offense is a search and seizure
implicating Fourth Amendment concerns, it is a reasonable search and seizure. This is so in light
of an inmate’s diminished privacy rights . . . .”).
As Justice Kagan has noted, property law informs society’s expectations about what
government intrusions are reasonable: “It is not surprising that in a case involving a search of a
home, property concepts and privacy concepts should so align. The law of property ‘naturally
enough influence[s]’ our ‘shared social expectations’ of what places should be free from
governmental incursions.” Florida v. Jardines, 569 U.S. 1, 13 (2013)(Kagan, J., concurring)
(quoting Georgia v. Randolph, 547 U.S. 103, 111 (2006))(alteration in Florida v. Jardines, but not
in Georgia v. Randolph). Similarly, in Vernonia Sch. Dist. 47J v. Acton, Justice Scalia, writing
for the majority, noted: “What expectations are legitimate varies, of course, with context . . . ,
depending, for example, upon whether the individual asserting the privacy interest is at home, at
work, in a car, or in a public park.” 515 U.S. at 654 (citing New Jersey v. T.L.O., 469 U.S. 325,
337 (1985)).
2.

Consensual Searches.

Searches conducted pursuant to consent constitute one exception to the Fourth
Amendment’s search-warrant and probable-cause requirements. See Schneckloth v. Bustamonte,
412 U.S. 218, 219 (1973). When an individual consents to a police search and the consent is
“freely and voluntarily given,” the search does not implicate the Fourth Amendment. United States
v. Peña, 143 F.3d 1363, 1366 (10th Cir. 1998)(quoting Schneckloth v. Bustamonte, 412 U.S.
at 219). The Tenth Circuit has provided a two-part test for determining voluntariness, which
requires that: (i) the government “‘proffer clear and positive testimony that consent was
unequivocal and specific and intelligently given’”; and (ii) “the officers must have used no

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‘implied or express duress or coercion.’” United States v. Sanchez, 608 F.3d 685, 690 (10th Cir.
2010)(quoting United States v. Taverna, 348 F.3d 873, 878 (10th Cir. 2003)).
Determining whether a party’s consent was free and voluntary is a question of fact to be
determined from the totality of the circumstances. See United States v. Peña, 143 F.3d at 1366.
The Supreme Court and the Tenth Circuit have developed a non-exhaustive list of factors that
courts should consider when trying to determine whether a defendant’s consent was voluntarily
given:
(i) the “threatening presence of several officers;” (ii) the “use of aggressive
language or tone of voice indicating that compliance with an officer’s request is
compulsory,” or, conversely, the “officer’s pleasant manner and [ ] tone of voice;”
(iii) the “prolonged retention of a person’s personal effects such as identification,”
or, conversely, “the prompt return of the defendant’s identification and papers;”
(iv) the “absence of other members of the public,” or, conversely, whether the stop
occurs in “a public location such as ‘the shoulder of an interstate highway, in public
view;’” (v) the “officer’s failure to advise the defendant that [he or] she is free to
leave.” United States v. Ledesma, 447 F.3d at 1314 (citing and quoting numerous
sources). Other factors include: (vi) “the display of a weapon, [and (vii)] physical
touching by the officer.” United States v. Anderson, 114 F.3d 1059, 1064 (10th
Cir. 1997).
United States v. Sedillo, No. CR 08-1419, 2010 WL 965743, at *12 (D.N.M. February 19,
2010)(Browning, J)(alterations in United States v. Sedillo, but not in United States v. Ledesma or
United States v. Anderson). See United States v. Fox, 600 F.3d 1253, 1258 (10th Cir. 2010). The
inquiry is an objective one. See United States v. Ringold, 335 F.3d 1168, 1172 (10th Cir. 2003).
“As long as a reasonable innocent person, as opposed to a person knowingly carrying contraband,
would feel free to leave, such encounters are consensual and need not be supported by reasonable
suspicion of criminal activity.” United States v. Laboy, 979 F.2d 795, 798 (10th Cir. 1992).
Because courts are required to look at the totality of the circumstances in determining
whether an individual’s consent was voluntary, see United States v. Peña, 143 F.3d at 1366, no

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one factor is dispositive in a court’s inquiry into the circumstances. For example, although an
officer’s failure to advise a defendant that he or she is free to leave might suggest in some
circumstances that coercive law enforcement conduct caused the defendant’s consent to search,
the Supreme Court has ruled that officers do not need to advise an individual of his or her right to
refuse to consent to a search for that individual’s consent to be voluntary. See Schneckloth v.
Bustamonte, 412 U.S. at 232. Moreover, the mere presence of officers near a building’s exits,
threatening no more than to question individuals if they seek to leave, “‘should not [result] in any
reasonable apprehension by any [individuals] that they would be seized or detained in any
meaningful way.’”

United States v. Drayton, 536 U.S. 194, 205 (2002)(quoting Imm. &

Naturalization Serv. v. Delgado, 466 U.S. 210, 219 (1984)). Additionally, “[t]he presence of a
holstered firearm . . . is unlikely to contribute to the coerciveness of the encounter absent active
brandishing of the weapon.” United States v. Drayton, 536 U.S. at 205. Accordingly, “it is only
by analyzing all the circumstances of an individual consent that it can be ascertained whether in
fact it was voluntary or coerced. It is this careful sifting of the unique facts and circumstances of
each case that is evidenced in our prior decisions involving consent searches.” Schneckloth v.
Bustamonte, 412 U.S. at 232.
A suspect may give consent through conduct rather than words. “To satisfy the first prong
of the voluntariness requirement, a defendant’s consent must be clear, but it need not be verbal.
Consent may instead be granted through gestures or other indications of acquiescence, so long as
they are sufficiently comprehensible to a reasonable officer.” United States v. Guerrero, 472 F.3d
at 789-90. See Ysasi v. Brown, 3 F. Supp. 3d 1088, 1143 (D.N.M. 2014)(Browning, J.)(noting
that consent “need not be spoken, but ‘may instead be granted through gestures or other indications
of acquiescence’” (quoting United States v. Guerrero, 472 F.3d at 789-90)). For example, in

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United States v. Ringold, the Tenth Circuit held that an affirmative nod was sufficient to constitute
consent. See United States v. Ringold, 335 F.3d at 1175.
In United States v. Gordon, 173 F.3d 761 (10th Cir. 1999), the suspect moved to suppress
all physical evidence an officer seized from a locked duffle bag. See 173 F.3d at 765. The officer
asked to see the suspect’s train passenger ticket and identification, inquired into his travel plans,
and asked if he had any luggage. See 173 F.3d at 765. The officer did not inform the suspect that
he was free to leave or not answer her questions. See 173 F.3d at 765. The officer asked to search
the suspect’s luggage and the suspect gave his consent. See 173 F.3d at 765. She asked him
whether he had any contraband, informing him that contraband was the subject of her search. See
173 F.3d at 765. When the officer encountered the suspect’s locked bag, she asked him if he could
open it. See 173 F.3d at 765. Although the suspect did not respond verbally, he “removed the key
from his pocket and handed it to [the officer].” 173 F.3d at 766. The Tenth Circuit concluded that
the suspect’s “voluntary relinquishment of the key evidenced his consent to search the locked
duffle bag.” 173 F.3d at 765.
The Tenth Circuit proceeded to describe how the search of the locked bag, which was
inside the suspect’s other luggage, did not exceed the scope of the suspect’s consent to search his
luggage. See 173 F.3d at 766. The ultimate issue in determining the scope of consent is what a
reasonable person would have understood the suspect’s consent to include. See United States v.
Wacker, 72 F.3d 1453, 1470 (10th Cir. 1995). The Tenth Circuit determines whether a search
remains within the boundaries of the consent given based on the totality of the circumstances. See
United States v. Sanchez, 89 F.3d 715, 719 (10th Cir. 1996). When an officer tells a suspect that
the object of the search and the suspect consents to a search for that object within a certain area,
the Tenth Circuit has “consistently and repeatedly” held that the suspect thereby consents to a

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search of any area within the confines of the officer’s request where the object may be found.
United States v. Peña, 143 F.3d at 1368 (concluding that, “[b]ecause Peña consented to a search
for drugs, he consented to a search of any area in the motel room where one might hide drugs”).
See United States v. McRae, 81 F.3d 1528, 1538 (10th Cir. 1996)(holding that search did not
exceed the scope of consent given when the suspect gave the officers consent to search his
vehicle’s trunk, and they found contraband when they lifted up the trunk’s carpet); United States
v. Wacker, 72 F.3d at 1470 (holding that, “where a suspect does not limit the scope of a
search, . . . an officer is justified in searching the entire vehicle”); United States v. Santurio, 29
F.3d 550, 553 (10th Cir. 1994)(holding that the removal of “a few screws from the strip holding
down the carpet which covered the metal compartment containing the packages of cocaine” did
not exceed the scope of consent to search the car); United States v. Mains, 33 F.3d 1222, 1227
(10th Cir. 1994)(holding that, because the defendant consented to a search of his apartment for
another person, he consented to the search of any area large enough to accommodate that
individual).
Notably, if the suspect does not object to the officer’s search, it indicates that “the search
was within the scope of consent.” United States v. Gordon, 173 F.3d at 766. See United States v.
Sanchez, 89 F.3d at 719 (concluding that an officer’s search of a suspect’s car was valid when the
suspect gave consent to search the car for weapons, but failed to object when the officer began to
search the glove compartment and discovered narcotics). Accordingly, in United States v. Gordon,
the Tenth Circuit found it “most significant[]” that Gordon did not object to a search of the locked
bag when the officer discovered it within his larger bags. 173 F.3d at 766 (citing Florida v. Jimeno,
500 U.S. 248, 252 (1991)(“A suspect may of course delimit as he chooses the scope of the search
to which he consents.”)). The Tenth Circuit emphasized: “We consistently and repeatedly have

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held a defendant’s failure to limit the scope of a general authorization to search, and failure to
object when the search exceeds what he later claims was a more limited consent, is an indication
the search was within the scope of consent.” 173 F.3d at 766.
ANALYSIS
The indisputable facts demonstrate that Jones and Ali did not violate A. Ramirez’ or
S. Ramirez’ Fourth Amendment rights against unreasonable seizure or unreasonable search, and
that no clearly established law holds that Jones and Ali violated the Plaintiffs’ rights. Jones and
Ali thus are entitled to summary judgment on the basis of qualified immunity. The Court thus
grants the Jones MSJ and the Ali MSJ, and denies the A. Ramirez MSJ. The Court first addresses
the alleged violations of A. Ramirez’ rights against unreasonable seizure and search, and then
addresses the alleged violations of S. Ramirez’ rights against unreasonable seizure and search.
I.

NEITHER JONES NOR ALI VIOLATED A. RAMIREZ’ FOURTH AMENDMENT
RIGHTS.
The unambiguous record evidence demonstrates that A. Ramirez’ rights were not

infringed. The officers had sufficient information -- probable cause or reasonable suspicion -- to
either detain or arrest A. Ramirez without a warrant. The Court also concludes that the exception
to the warrant requirement for warrantless arrests in a home does not apply, because the officers
did not arrest A. Ramirez in his home or within his home’s curtilage; even if the seizure occurred
in the curtilage, exigent circumstances existed justifying the warrantless seizure in the curtilage.
Jones and Ali also did not search unconstitutionally A. Ramirez’ person or his home.
A.

JONES AND ALI POSSESSED PROBABLE CAUSE THAT A. RAMIREZ
COMMITTED FELONIES OR PUBLIC DISORDER MISDEMEANORS.

The unambiguous facts demonstrate that, at the time they tackled A. Ramirez, Jones and
Ali possessed probable cause that A. Ramirez committed felonies -- namely, assault and

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aggravated assault -- and misdemeanors -- namely, negligently using a firearm, public nuisance,
and resisting arrest. Because the Court concludes that the officers possessed probable cause as to
these offenses, the Court also necessarily concludes that the officers possessed reasonable
suspicion, a lesser-included quantum of information.

See Terry v. Ohio, 392 U.S. 1, 27

(1968)(holding that the reasonable suspicion required for an investigatory detention is less than
the “probable cause [necessary] to arrest the individual for a crime”). Determining what quantum
of information the officers possessed depends on what they knew and when they knew it. What
Jones and Ali observed upon arriving on the scene provided probable cause that A. Ramirez was
violating multiple criminal laws.

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

Cir. 2000)(“Probable cause exists if facts and circumstances within the arresting officer’s
knowledge and of which he or she has reasonably trustworthy information are sufficient to lead a
prudent person to believe that the arrestee has committed or is committing an offense.” (quoting
Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir. 1995))). An identified source’s 911 tip and reliable
basis of knowledge, which officers’ follow-up investigation corroborates, can supply probable
cause. See Alabama v. White, 496 U.S. 325, 328-29 (1990)(“[A] ‘totality of the circumstances’
approach . . . determine[es] whether an informant’s tip establishes probable cause. . . . [Such]
factors [as] . . . an informant's ‘veracity,’ ‘reliability,’ and ‘basis of knowledge’ . . . [are] ‘highly
relevant in determining the value of his report.’” (quoting Illinois v. Gates, 462 U.S. 213, 230
(1983)(alterations the Court’s))). Specifically, what they observed provided probable cause that
A. Ramirez had committed or was committing in their presence two felonies and three
misdemeanor violations: (i) aggravated assault, see N.M.S.A. § 30-3-2 (“Aggravated assault
consists of either . . . unlawfully assaulting or striking at another with a deadly weapon.”); State v.
Armijo, 2005-NMCA-010, ¶ 25, 136 N.M. 723, 729, 104 P.3d 1114, 1120 (“A defendant could be

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convicted of aggravated assault by merely threatening the victim with bodily harm.”); (ii) assault,
see N.M.S.A. §30-3-1(B) (“Assault consists of . . . any unlawful act, threat or menacing conduct
which causes another person to reasonably believe that he is in danger of receiving an immediate
battery.”); (iii) negligently using a firearm, see N.M.S.A. § 30-7-4; (iv) public nuisance, see
N.M.S.A. § 30-8-1; and (v) resisting arrest, see N.M.S.A. § 30-22-1.
What Jones and Ali knew about A. Ramirez provided probable cause for a custodial arrest.
Everything that Jones and Ali observed when they arrived on the scene was consistent with the
proposition that A. Ramirez had committed or was committing several criminal offenses, including
felonies. A. Ramirez is incorrect to assert that Jones and Ali performed no investigation before
seizing him. See A. Ramirez MSJ at 2 (“Nor did [Jones and Ali] perform any investigation prior to
seizing Mr. Ramirez even though they had more than sufficient opportunity to do so.”). They arrived

at the residence’s area following up on a 911 call reporting an intoxicated man waving around a
rifle and threatening his neighbors, see 911 Call at 00:00-00:35; two sets of neighbors, upon the
officers’ arrival, supported that narrative, and indeed one neighbor indicated A. Ramirez had on
previous occasions threatened his neighbors, resulting in a police call, to which Jones was the
responding officer, see Jones Lapel Video A at 00:00-05:00; the officers’ first-hand observations
corroborated those accounts, because they heard A. Ramirez screaming obscenities audible from
over one-hundred feet away, and then saw him doing the same to the officers’ directly, see Jones
Lapel Video A at 00:00-06:15.
That A. Ramirez was not carrying his rifle when Jones and Ali saw him does not vitiate
probable cause, because what Jones and Ali observed otherwise was consistent with and
corroborated the neighbors’ account that A. Ramirez threateningly had brandished a firearm while
intoxicated. See United States v. Artez, 389 F.3d 1106, 1115 (10th Cir. 2004)(“‘[W]hat is needed

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[for probable cause] is that the probability of a lying or inaccurate informer has been sufficiently
reduced by corroborative facts and observations.’” (quoting Wayne R. LaFave, Search and
Seizure: A Treatise on the Fourth Amendment § 3.3(f), at 168 (3d ed. 1996)(the Court’s
alterations))). Although the officers did not see him carrying a rifle, they did not know whether
A. Ramirez had a pistol or other firearm on his person, and they did not know where the rifle was
and, thus, how quickly A. Ramirez could take it into his hands if not detained immediately.
A. Ramirez at the time acknowledged these actions’ reasonableness. See Jones Lapel Video A at
13:00-13:30 (“That’s true. That’s true, bro.”).
Some facts known to the officers at the time cut against probable cause as to the felony
aggravated assault and assault, but that contradictory information is insufficient to overcome
otherwise sufficient information to believe A. Ramirez committed those felonies. The Plaintiffs
stress that Jones and Ali could not have believed that A. Ramirez committed assaultive crimes,
because: (i) the 911 call does not assert specifically that A. Ramirez had pointed a gun at the
neighbors; and (ii) when Jones and Ali arrived, the neighbors were not hiding from A. Ramirez in
fear, suggesting they did not believe their lives were in immediate danger. Both facts, the Plaintiffs
are correct, undercut the information suggesting that assault or aggravated assault occurred. See
N.M.S.A. §30-3-1(B) (“Assault consists of . . . any unlawful act, threat or menacing conduct which
causes another person to reasonably believe that he is in danger of receiving an immediate
battery.”); N.M.S.A. § 30-3-2 (“Aggravated assault consists of either . . . unlawfully assaulting . . .
another with a deadly weapon.”); State v. Armijo, 2005-NMCA-010, ¶ 25, 136 N.M. at 729, 104
P.3d at 1120 (“A defendant could be convicted of aggravated assault by merely threatening the
victim with bodily harm.”). Despite these contradictory indications, however, the Court concludes
that Jones and Ali possessed probable cause that A. Ramirez committed assault or aggravated

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assault. Police officers need not possess a perfect picture of the facts: it is sufficient that a prudent
person would believe the crime had occurred, and it is not imprudent under the circumstances to
believe that A. Ramirez’ threatening behavior constituted assault. See Alabama v. White, 496 U.S.
at 328-29 (“[A] ‘totality of the circumstances’ approach . . . determine[es] whether an informant’s
tip establishes probable cause. . . . [Such] factors [as] . . . an informant's ‘veracity,’ ‘reliability,’
and ‘basis of knowledge’ . . . [are] ‘highly relevant in determining the value of his report.’”
(quoting Illinois v. Gates, 462 U.S. at 230 (1983)(alterations the Court’s))); Oliver v. Woods, 209
F.3d at 1186 (“Probable cause exists if facts and circumstances within the arresting officer's
knowledge and of which he or she has reasonably trustworthy information are sufficient to lead a
prudent person to believe that the arrestee has committed or is committing an offense.” (quoting
Romero v. Fay, 45 F.3d at 1475)).
Because what matters for probable cause is what Jones and Ali knew at the time of
A. Ramirez’ detention, what the officers learned and determined later does not affect the analysis.
Thus, that Jones and Ali learned later from the neighbors that A. Ramirez had not pointed his gun
directly at anyone, see Jones MSJ ¶¶ 26, 28, at 6-7; Jones Lapel Video B at 07:45-08:15, and that
the State of New Mexico did not charge A. Ramirez with assault, suggesting that State prosecutors
might have concluded that probable cause as to assault was lacking, see Criminal Complaint at 1,
does not undermine that, at the time, Jones and Ali prudently could have believed that A. Ramirez
committed assault or aggravated assault. The information available to officers often evolves
rapidly, so that contradictory information learned at a later time does not undermine necessarily
that probable cause exists at an earlier moment, so long as the factual picture available to officers

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at the time was sufficient. 10 Finally, these conflicting pieces of information in no way undermine
probable cause regarding the misdemeanors -- negligently using a firearm, public nuisance,
and resisting arrest.
In sum, the Court concludes that Jones and Ali possessed probable cause that A. Ramirez
committed two felonies and three misdemeanor offenses. They had probable cause to believe the
felonies had occurred just before they arrived and that some of the misdemeanors, particularly the
public nuisance, occurred in their presence. In the alternative, the Court concludes that Jones and
Ali possessed reasonable suspicion to investigate these offenses’ commission.
B.

A. RAMIREZ’ SEIZURE IS BEST
INVESTIGATORY DETENTION.

CHARACTERIZED

AS

AN

Although the Court concludes that Jones and Ali possessed probable cause, which supports
arrest, the Court concludes that Jones and Ali did not initially effect an arrest on A. Ramirez, but
a Terry v. Ohio, 392 U.S. 1 (1968)(“Terry”), stop, for which reasonable suspicion suffices;
although ultimately the officers did arrest A. Ramirez, the initial part of their encounter was a
Terry detention.

A. Ramirez’ detention can be characterized as an investigatory detention,

although he was handcuffed, the officers used force, and the seizure lasted approximately half an
hour: no one feature forecloses the seizure’s characterization as an investigatory detention. Cf.
United States v. Melendez-Garcia, 28 F.3d 1046, 1052 (10th Cir. 1994)(“[T]he use of firearms,
handcuffs, and other forceful techniques does not necessarily transform a Terry detention into a

10

Even if this conflicting information undermined probable cause as to the two assault
felonies, it does not undermine reasonable suspicion: the conflicting information was grist for
further investigation of what otherwise appeared to be felonious conduct. Accordingly, even if the
Court concluded that this conflicting information vitiated Jones and Ali’s probable cause, the Court
would conclude that they still possessed reasonable suspicion regarding the felonies.

- 27 -

full custodial arrest -- for which probable cause is required -- when ‘the circumstances reasonably
warrant such measures.’” (quoting United States v. Perdue, 8 F.3d 1455, 1463-64 (10th
Cir. 1993))).

In potentially dangerous encounters, such as the one with which A. Ramirez

presented the officers -- he was drunk, agitated, and likely was armed -- the use of more intrusive
methods of seizure will fall on the Terry side of a detention rather than on the side of custodial
arrest. See United States v. Soza, 686 F. App’x 564, 569 (10th Cir. 2017)(“[I]n the cases where
we have upheld officers’ brandishing of firearms and use of handcuffs during an
investigatory Terry stop, the officers generally either knew or had reason to believe the suspects
were armed, or they had personally witnessed the suspects acting violently.”); 11 United States v.
Melendez-Garcia, 28 F.3d at 1052 (“[O]fficers acted reasonably [in effecting a Terry detention]
when they ordered the occupants out of a car at gunpoint and forced them to lie on the ground
when . . . suspects might be armed, it was late at night in a remote area, and there were only two
officers.” (describing United States v. Perdue, 8 F.3d at 1463)); United States v. Melendez-Garcia,
28 F.3d at 1052 (“[O]fficers’ display of firearms and use of handcuffs was reasonable [in Terry

11

United States v. Soza, 686 F. App’x 564 (10th Cir. 2017), is an unpublished opinion, but
the Court can rely on an unpublished opinion to the extent its reasoned analysis is persuasive in
the case before it. See 10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but may
be cited for their persuasive value.”). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, . . . And we have
generally determined that citation to unpublished opinions is not favored.
However, if an unpublished opinion or order and judgment has persuasive value
with respect to a material issue in a case and would assist the court in its disposition,
we allow a citation to that decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005). The Court concludes that United
States v. Soza has persuasive value with respect to a material issue, and will assist the Court in its
disposition of this Memorandum Opinion and Order.

- 28 -

stop] when . . . suspect had threatened to kill someone and they observed the suspect violently
pounding his fists in his truck.” (describing United States v. Merkley, 988 F.2d 1062, 1064 (10th
Cir. 1993))). The Court notes that, although Jones says that A. Ramirez is not yet arrested, but
instead that A. Ramirez is only being detained for investigation, Jones’ subjective understanding
of the encounter does not affect the analysis, because the analysis is an objective one. See Ashcroft
v. al-Kidd, 563 U.S. 731, 736 (2011)(“Fourth Amendment reasonableness ‘is predominantly an
objective inquiry.’” (quoting Indianapolis v. Edmond, 531 U.S. 32, 47 (2000))). Nonetheless,
because the intrusion into A. Ramirez’ privacy interests was roughly commensurate with the
investigatory need, the apprehension can be characterized as an investigatory detention. Cf. United
States v. Copening, 506 F.3d 1241, 1245-46 (10th Cir. 2007)(describing the Terry stop inquiry as,
in part, “‘whether [the detention] was reasonably related in scope to the circumstances which
justified the interference in the first place’” (quoting Terry, 392 U.S. at 20)). 12
Ultimately, however, what begins as A. Ramirez’ investigatory detention develops into a
custodial arrest, but it still is Constitutionally justified. Jones and Ali did ultimately book

12

The Court agrees with A. Ramirez, however, that Jones and Ali’s apprehension of
A. Ramirez cannot be justified as a community caretaking apprehension: Jones and Ali were
responding to neighbors’ reports that A. Ramirez committed crimes, and not that A Ramirez was
in need of help. Cf. Storey v. Taylor, 696 F.3d 987, 992-93 (10th Cir. 2012)(“[I]n fulfilling their
duties, police officers may exercise functions -- ‘community caretaking functions’ -- wholly
separate and apart from detecting, investigating, or acquiring evidence of a crime.’” (quoting
Lundstrom v. Romero, 616 F.3d 1108, 1120 (10th Cir. 2010))). To the extent that a communitycaretaking doctrine can authorize non-investigatory seizures outside the home absent exigent
circumstances, cf. Caniglia v. Strom, 593 U.S. 194, 196 (“[The Cady v. Dombrowski, 413 U.S. 433
(1973)] acknowledgment of [police officers’] ‘caretaking’ duties [does not] create[] a standalone
doctrine that justifies warrantless searches and seizures in the home.”); id. at 199 (“[The]
recognition that police officers perform many civic tasks in modern society was just that -- a
recognition that these tasks exist, and not an open-ended license to perform them anywhere.”), still
that doctrine will not supply a basis for the seizure here, because Jones and Ali’s conduct was
crime-fighting and investigatory in nature, and not community-caretaking.
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A. Ramirez on criminal charges, namely the three misdemeanors described above. As noted, even
though the Court concludes that Jones and Ali possessed probable cause that A. Ramirez
committed felony offenses -- assault and aggravated assault -- A. Ramirez’ arrest ultimately was
predicated only on the misdemeanors. That the arrest was only based on misdemeanors is not a
Constitutional problem, because officers can effect a warrantless arrest about misdemeanors
occurring in their presence about which they have probable cause, as A. Ramirez’ misdemeanor
offenses did. See Tanberg v. Sholtis, 401 F.3d 1151, 1159 (10th Cir. 2005)(“‘If an officer has
probable cause to believe that an individual has committed even a very minor criminal offense in
his presence, he may, without violating the Fourth Amendment, arrest the offender.’” (quoting
Atwater v. Lago Vista, 532 U.S. 318, 322 (2001))). 13 The felony offenses occurred outside their
presence, but they could effect an arrest on that basis too, because they possessed probable cause.
See United States v. Gonzalez, 107 F.4th 1304, 1308 (11th Cir. 2024)(“‘[A] police officer may
arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a
felony . . . .’” (quoting Carroll v. United States, 267 U.S. 132, 156-57 (1925))). Because the
detention develops into a custodial arrest, the Court next considers whether the location where
Jones and Ali arrested A. Ramirez -- namely, A. Ramirez’ front lawn -- necessitates that they
possessed a warrant or that exigent circumstances were present.

13

Recent developments in other Circuits have eroded this proposition, but the Tenth Circuit
has yet to hold that the Fourth Amendment does not require that a warrantless misdemeanor arrest
be based only on a misdemeanor that occurs in an officer’s presence. See United States v.
Gonzalez, 107 F.4th 1304, 1309-10 (11th Cir. 2024)(“[E]very circuit to face this issue has ‘held
that the Fourth Amendment does not include an in-the-presence requirement for warrantless
misdemeanor arrests.’ . . . Today, we join our sister circuits and hold that the Fourth Amendment
does not require a misdemeanor to occur in an officer's presence to conduct a warrantless arrest.”
(quoting Knight v. Jacobson, 300 F.3d 1272, 1276 n.3 (11th Cir. 2002))).
- 30 -

C.

THE LOCATION OF A. RAMIREZ’ ARREST DOES NOT REQUIRE A
WARRANT OR EXIGENT CIRCUMSTNACES, ALTHOUGH, IN THE
ALTERNATIVE, EXIGENT CIRCUMSTANCES EXISTED.

That A. Ramirez’ detention and ultimate arrest occurred on his front lawn does not
necessitate that Jones and Ali possessed an arrest warrant or that exigent circumstances were
present, because A. Ramirez’ front lawn is not his home or curtilage for Fourth Amendment
purposes; in the alternative, even if the arrest occurred within his Constitutional home, exigent
circumstances existed justifying entry to detain and then arrest A. Ramirez. Police may arrest
suspects about whom they possess probable cause in a public place. On the other hand, arrests
that occur in the home or in the home’s curtilage are unconstitutional unless both supported by
probable cause and precipitated by exigent circumstances. The location of A. Ramirez’ detention
and arrest does not violate his Fourth Amendment rights.
1.

A. Ramirez’ Arrest Did Not Occur Inside His Home or Within Its
Curtilage.

A. Ramirez’ detention and arrest occurred in a public place for the Fourth Amendment’s
purposes, so Jones and Ali could arrest him there without a warrant; A. Ramirez’ front lawn
obviously is not home’s interior, and it also is not the home’s curtilage. Law enforcement may
arrest a person in a public place without a warrant. See Bailey v. Swindell, 940 F.3d 1295, 1300
(11th Cir. 2019)(“When it comes to warrantless arrests, the Supreme Court has drawn a ‘firm line
at the entrance to the house.’ . . . Accordingly, . . . police don’t need a warrant to make an arrest in
a public place . . . .” (quoting Payton v. New York, 445 U.S. 573, 590 (1980))). Because the home
for the Fourth Amendment’s purposes includes its curtilage -- that area immediately surrounding
a home, connected with the home life’s intimacies -- then a warrantless arrest within the curtilage
must be supported by exigent circumstances, as the Supreme Court has suggested:

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[I]t is a “settled rule that warrantless arrests in public places are valid,” but, absent
another exception such as exigent circumstances, officers may not enter a home to
make an arrest without a warrant, even when they have probable cause. Payton v.
New York, 445 U.S. [at] 587-590 . . . . That is because being “ ‘arrested in the home
involves not only the invasion attendant to all arrests but also an invasion of the
sanctity of the home.’ ” Id., at 588–589 . . . (quoting United States v. Reed, 572 F.2d
412, 423 (C.A.2 1978)). Likewise, searching a vehicle parked in the curtilage
involves not only the invasion of the Fourth Amendment interest in the vehicle but
also an invasion of the sanctity of the curtilage.
Collins v. Virginia, 584 U.S. 586, 595-96 (2018). “Curtilage, the land immediately surrounding
and associated with the home, ‘is the area to which extends the intimate activity associated with
the ‘sanctity of a man’s home and the privacies of life.’ . . . As a result, curtilage ‘has been
considered part of home itself for Fourth Amendment purposes,” and “warrants the Fourth
Amendment protections that attach to the home.’” United States v. Shuck, 713 F.3d 563, 567 (10th
Cir. 2013)(quoting Oliver v. United States, 466 U.S. 170, 180 (1984)). Four loose factors
determine whether an area is curtilage:
In Dunn, the Court more carefully defined this standard and articulated four factors
used to determine whether a particular area was within the curtilage of a house: (1)
the proximity of the area to the house; (2) whether the area is included within an
enclosure surrounding the home; (3) the nature of the use to which the area is put;
and (4) the steps taken by the resident to protect the area from observation. [United
States v. Dunn, 480 U.S. 294, 301 (1987)].
United States v. Cousins, 455 F.3d 1116, 1122 (10th Cir. 2006). What is not a home’s curtilage is
a person’s “open fields” -- that broader area beyond the home’s immediate vicinity, law
enforcement officers’ entry into which does not constitute a search for the Fourth Amendment’s
purposes. United States v. Hajduk, 396 F. Supp. 2d 1216, 1235 (D. Colo. 2005)(Babcock,
C.J.)(“The open fields doctrine recognizes that property owners have a lesser expectation of
privacy in open areas of their land than they do in areas inside buildings or facilities. . . . Under
this doctrine, the government may inspect open areas of an industrial complex from public airspace

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without a warrant.”). Trespass alone is insufficient for the analysis, as property lines are not the
end-all-be-all of the Fourth Amendment. See United States v. Jones, 565 U.S. 400, 408 n.5
(2012)(“[P]ost-[Katz v. United States, 389 U.S. 347 (1967)(“Katz”)] we have explained that “‘an
actual trespass is neither necessary nor sufficient to establish a constitutional violation.’” . . . That
is undoubtedly true . . . .” (quoting United States v. Jones, 565 U.S. 400, 423 (2012)(Alito, J.,
concurring), in turn wholly quoting United States v. Karo, 468 U.S. 705, 713 (1984))). Thus, a
front porch or the immediate entryway into a house, may be curtilage, but common areas in an
apartment complex are not. See United States v. Maxwell, 668 F. Supp. 3d 427, 441 (E.D. Va.
2023)(Jackson, J.)(“Unlike the apartment’s front patio, the [United States Court of Appeals for the
Fourth Circuit] found that the grass area was not curtilage because it was used by other apartment
residents and located over twenty feet from the door of the defendant’s apartment.” (describing
United States v. Jackson, 728 F.3d 367, 374 (4th Cir. 2013))). The United States Court of Appeals
for the Tenth Circuit and other appellate courts have held that a front yard fully visible to the public
is not a home’s curtilage. See United States v. Vasquez, No. 22-1294, 2024 WL 34132, at *2 (10th
Cir. January 3, 2024)(“[T]he Dunn factors suggest that neither the yard nor driveway are curtilage.
We previously applied Dunn to state that a front yard was not curtilage . . . and other circuits have
held that shared driveways are not curtilage.” (citing Reeves v. Churchich, 484 F.3d 1244, 125455 (10th Cir. 2007), then United States v. Coleman, 923 F.3d 450, 456 (6th Cir. 2019); United
States v. Jones, 893 F.3d 66, 72 (2d Cir. 2018))).
The front yard of A. Ramirez’ home is not part of his home’s curtilage. Here, although the
front yard is the area immediately next to the house and is enclosed by a chain-link fence, the fence
is only thigh- or waist-high and the front yard was not otherwise obscured from the public;
moreover, the front lawn is not put apparently to a purely private purpose, as A. Ramirez’ front

- 33 -

lawn is the face that his home presents to the world. United States v. Vasquez, 2024 WL 34132,
at *2; United States v. Bausby, 720 F.3d 652, 656-57 (8th Cir. 2013)(“‘What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth Amendment
protection.’ . . . [W]hile the area was fenced, the fence was only a four or five foot chain-link fence
and not a fence designed to limit the observation of those passing by.” (quoting Katz, 389 U.S. at
351)). The Ramirez’ front lawn is not curtilage for the Fourth Amendment’s purposes. For Fourth
Amendment seizure purposes, the Ramirez’ front lawn is a public place. See Bailey v. Swindell,
940 F.3d at 1300 (“When it comes to warrantless arrests, the Supreme Court has drawn a ‘firm
line at the entrance to the house.’ . . . Accordingly, . . . police don’t need a warrant to make an
arrest in a public place . . . .” (quoting Payton v. New York, 445 U.S. at 590)). Because, therefore,
Jones and Ali upon probable cause arrested A. Ramirez outside his home and its curtilage, exigent
circumstances need not exist justifying A. Ramirez’ warrantless arrest.
2.

Exigent Circumstances Justified A. Ramirez’ Arrest, Even if the Arrest
Was Effectuated Inside His Home’s Curtilage.

Even if the Court concluded that the ultimate arrest occurred within A. Ramirez’ home or
its curtilage, exigent circumstances justified that warrantless arrest. If exigent circumstances exist,
then officers can effect a warrantless arrest inside the Constitutional home if they have probable
cause that a crime occurred, be it a felony or, in some situations, a misdemeanor:
If . . . police have probable cause for an arrest, the existence of certain exigent
circumstances may “overcome the presumption of unreasonableness that attaches
to all warrantless home entries.” Welsh v. Wisconsin, 466 U.S. 740, 750 . . . (1984)
. . . . “To determine the existence of an exigency, a court must consider the gravity
of the offense supporting arrest.” Howard, 34 F.3d at 982 (citing Welsh, 466 U.S.
at 753, 104 S.Ct. 2091). “When the government’s interest is only to arrest for a
minor offense, that presumption of unreasonableness is difficult to rebut, and the
government usually should be allowed to make such arrests only with a warrant
issued upon probable cause by a neutral and detached magistrate.” Welsh, 466 U.S.
at 750, 104 S.Ct. 2091 (footnote omitted).

- 34 -

Mascorro v. Billings, 656 F.3d 1198, 1205 (10th Cir. 2011). Although hot pursuit of a felony
suspect typically raises exigent circumstances, there is no per se rule prohibiting pursuit of
misdemeanor suspects into the home; rather, for misdemeanor suspects, the analysis proceeds on
a case-by-case basis, as the Supreme Court recently held:
Our Fourth Amendment precedents thus point toward assessing case by case
the exigencies arising from misdemeanants’ flight. That approach will in many, if
not most, cases allow a warrantless home entry. When the totality of circumstances
shows an emergency -- such as imminent harm to others, a threat to the officer
himself, destruction of evidence, or escape from the home -- the police may act
without waiting. And those circumstances, as described just above, include the
flight itself.
Lange v. California, 594 U.S. 295, 308 (2021).
Even if the arrest on A. Ramirez’ front lawn is an arrest within his home’s curtilage such
that the warrantless arrest requires probable cause and exigent circumstances, then those conditions
obtain. As discussed above, Jones and Ali possessed probable cause that A. Ramirez committed
felonies: assault and aggravated assault. Cf. Hill v. City of Fountain Valley, 70 F.4th 507, 515
(9th Cir. 2023)(“Probable cause exists where the ‘available facts suggest a fair probability that the
suspect has committed a crime.’” (quoting Tatum v. City & Cnty. of San Francisco, 441 F.3d 1090,
1094 (9th Cir. 2006))). Although not categorically the case, the hot pursuit of a felony suspect
about whom there is probable cause usually presents exigent circumstances justifying warrantless
arrest within the Constitutional home. See United States v. Thomas, 372 F.3d 1173, 1177 (10th
Cir. 2004)(“The Supreme Court has recognized several types of exigent circumstances that may
justify a warrantless entry into a home, including the hot pursuit of a fleeing felon, the imminent
destruction of evidence, the need to prevent a suspect’s escape, or the risk of danger to police
officers or other people inside or outside the home.”); Lange v. California, 594 U.S. at 304-05

- 35 -

(declining to adopt the proposition that Supreme Court caselaw “treat[s] fleeing-felon cases
categorically (that is, as always presenting exigent circumstances allowing warrantless entry)”).
Moreover, even if A. Ramirez’ offenses about which Jones and Ali possessed probable cause only
were misdemeanors and not felonies, those misdemeanors nonetheless were dangerous, firearmrelated offenses, and A. Ramirez was fleeing apprehension: under Lange v. California’s totalityof-the-circumstances rule, these public-safety-threatening misdemeanors establish exigent
circumstances justifying warrantless entry into A. Ramirez’ home’s curtilage to detain and arrest
him. See Lange v. California, 594 U.S. at 308 (“When the totality of circumstances shows an
emergency -- such as imminent harm to others, a threat to the officer himself, destruction of
evidence, or escape from the home -- the police may act without waiting. And those circumstances,
as described just above, include the flight itself.”). Because Jones and Ali first encountered
A. Ramirez outside the home -- they first came face to face with him while they and he were
walking toward each other on the public road adjacent to A. Ramirez’ home -- he cannot vitiate
their ability to seize him by retreating into the Constitutionally protected space of his house’s
curtilage. Cf. Mascorro v. Billings, 656 F.3d 1198, 1206 (10th Cir. 2011)(“‘[A] suspect may not
defeat an arrest which has been set in motion in a public place . . . by the expedient of escaping to
a private place.’” (quoting United States v. Santana, 427 U.S. 38, 43 (1976))(alternation the
Court’s)).

Accordingly, even if A. Ramirez’ front lawn is his Fourth Amendment

curtilage -- which, the Court concludes, it is not -- nevertheless, A. Ramirez’ arrest was justified
by probable cause and exigent circumstances where it occurred.

- 36 -

D.

JONES AND ALI DID NOT VIOLATE A. RAMIREZ’ FOURTH
AMENDMENT RIGHT TO BE FREE FROM EXCESSIVE FORCE.

Jones and Ali did not use unconstitutionally excessive force in effecting A. Ramirez’
seizure. “[T]hree, non-exclusive factors [are] relevant to [an] excessive force inquiry: [i] the
severity of the crime at issue, [ii] whether the suspect poses an immediate threat to the safety of
the officers or others, and [iii] whether he is actively resisting arrest or attempting to evade arrest
by flight.” Fisher v. City of Las Cruces, 584 F.3d 888, 894 (10th Cir. 2009)(citing Graham v.
Connor, 490 U.S. 386, 396 (1989))(brackets added)). Each Graham v. Connor factor suggests the
propriety of such non-lethal action as the tackle that brought down A. Ramirez: A. Ramirez was
suspected of threateningly using firearms, he might have had the firearms on his person or had
easy access to a firearm, and he refused to comply with the officers’ order to halt. See Scott v.
Harris, 550 U.S. at 383 (“[I]n judging whether [the police officer] Scott’s actions were reasonable,
we must consider the risk of bodily harm that Scott’s actions posed to respondent in light of the
threat to the public that Scott was trying to eliminate.”). As noted above, Jones and Ali did not
know if A. Ramirez had a firearm on his person or how quickly he could access his rifle. That A.
Ramirez was an older and smaller man than either Jones or Ali does not mean that they could not
tackle him to the ground; officers are not permitted only to physically retrain suspects their same
age and size, especially when dangerous offenses and firearms are involved, which can necessitate
immediately controlling a situation, regardless of a suspect’s physical characteristics. Cf. Fisher
v. City of Las Cruces, 584 F.3d at 894 (“Not every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment. . . . [P]olice
officers are often forced to make split-second judgments -- in circumstances that are tense,
uncertain, and rapidly evolving -- about the amount of force . . . necessary in a particular

- 37 -

situation.”). The lapel footage shows unambiguously that the physical altercation lasted less than
thirty seconds, and that Jones and Ali allowed A. Ramirez to get more comfortable after placed in
handcuffs. The officers therefore did not unconstitutionally use excessive force on A. Ramirez.
In conclusion, Jones and Ali did not violate A. Ramirez’ Fourth Amendment seizure rights,
and even if they did, A. Ramirez points to no clearly established law holding that his seizure was
unconstitutional. The Court’s independent research identifies no caselaw holding that a Fourth
Amendment violation exists under these circumstances. Accordingly, even if there were a
violation, A. Ramirez cannot show that the law was clearly established that a Fourth Amendment
violation occurs under these circumstances at the time he suffered his alleged violation, so Jones
and Ali are entitled to qualified immunity. See Perea v. Baca, 817 F.3d 1198, 1202 (10th Cir.
2016)(placing burden on plaintiff to “show that (1) the officers’ alleged conduct violated a
constitutional right, and (2) [that right] was clearly established at the time of the violation”).
E.

JONES AND ALI DID NOT VIOLATE A. RAMIREZ’ RIGHTS TO BE
FROM UNLAWFUL SEARCH.

Jones and Ali did not violate A. Ramirez’ Fourth Amendment right to be free from
unreasonable searches. The Court deals briefly with this subject, because although the SAC asserts
violations of both seizure and search rights, the A. Ramirez MSJ offers no argument that
A. Ramirez’ search rights were violated: it argues only that his seizure was unconstitutional and
that Jones and Ali used excessive force on him. Compare SAC ¶¶ 38-42, at 6 (Fourth Amendment
search claims), with A. Ramirez MSJ at 17-21 (unreasonable seizure argument), and id. at 21-24
(excessive force argument). Jones and Ali did not violate A. Ramirez’ right to be free from
unreasonable searches, particularly as it relates to A. Ramirez’ person. Terry authorizes any pat
down of A. Ramirez, because officers apprehended him on potentially violent crimes. See Favela

- 38 -

v. City of Las Cruces ex rel. Las Cruces Police Dep’t, 398 F. Supp. 3d 858, 927 (D.N.M.
2019)(Browning, J.)(“An officer may conduct a pat-down search of a person’s outer clothing if
the officer has reasonable suspicion to believe that person is armed and dangerous. . . . Indeed, the
‘reasonable suspicion required to justify a pat-down search represents a “minimum level of
objective justification.”’” (quoting United States v. Rice, 483 F.3d 1079, 1083 (10th Cir. 2007), in
turn quoting United States v. Alcaraz-Arellano, 441 F.3d 1252, 1260 (10th Cir. 2006))). Any
search of A. Ramirez’ person would be valid as a search-incident-to-arrest. See Cronick v. Pryor,
99 F.4th 1262, 1272 (10th Cir. 2024)(“‘[O]fficers may conduct a warrantless search of a person
when it is incident to a lawful arrest of that person.’” (quoting Chimel v. California, 395 U.S. 752,
762-63 (1969))).
Any search-right violation predicated on Jones and Ali’s unwelcome entry into the Ramirez
property fails essentially for the same reasons that the location of A. Ramirez’ arrest does not
render the arrest unlawful. The officers did not enter the home’s curtilage, and, even if they did,
exigent circumstances justified that warrantless entry. See Section I.C.1-2 supra, at 31-36.
On the property-revivalist, non-Katz model of Fourth Amendment search, the officers’
entry into A. Ramirez’ property did not effectuate a search, because they did not enter the curtilage,
and, even if they did, the entry lacked an information-gathering purpose. See United States v.
Jones, 565 U.S. at 408 n.5 (“Trespass alone does not qualify [as a Constitutional search], but there
must be conjoined with that what was present here: an attempt to find something or to obtain
information. . . . A trespass on ‘houses’ or ‘effects’ . . . is not alone a search unless it is done to
obtain information; and the obtaining of information is not alone a search unless it is achieved by
such a trespass or [a Katz] invasion of privacy.”). Cf. Morgan Cloud, Property Is Privacy: Locke
and Brandeis in the Twenty-First Century, 55 Am. Crim. L. Rev. 37, 67 (2018)(“By the second

- 39 -

decade of the twenty-first century, the hegemony of the reasonable expectation of privacy
technique was . . . complete . . . . United States v. Jones[, however,] . . . resurrected the trespass
doctrine that the Court had cast aside as ‘discredited’ nearly half a century earlier.” (quoting Katz,
389 U.S. at 353)). Here, no trespass-theory Fourth Amendment search occurred, because, although
a trespass, it did not occur on a Constitutionally protected space, i.e., not on the home’s curtilage.
See Section I.C.1 supra, at 31-34; Florida v. Jardines, 569 U.S. at 6-7 (concluding that “the
officers’ investigation took place in a constitutionally protected area,” because they entered the
“the area ‘immediately surrounding and associated with the home’ -- what our cases call the
curtilage – [which is] ‘part of the home itself for Fourth Amendment purposes’” (quoting Oliver
v. United States, 466 U.S. 170, 180 (1984)). Moreover, even if the Court did conclude that the
trespass was on A. Ramirez’ protected curtilage, the trespass was not unlicensed on the basis that
the officers possessed an information-gathering purpose: the sole purpose of Jones and Ali’s entry
onto A. Ramirez’ land was to apprehend him after he had escaped there from the public road. Cf.
Jones, 565 U.S. at 408 n.5 (“Trespass alone does not qualify [as a Constitutional search], but there
must be conjoined with that . . . an attempt to find something or to obtain information. . . . A
trespass on ‘houses’ or ‘effects’ . . . is not alone a search unless it is done to obtain information;
and the obtaining of information is not alone a search unless it is achieved by such a trespass or [a
Katz] invasion of privacy.”). Last, even if there was Fourth Amendment search on the basis that
the officers’ trespass was coupled with a law enforcement purpose -- at least to apprehend
A. Ramirez, if not to gain information or evidence about his criminal conduct, cf. United States v.
Carloss, 818 F.3d 988, 992 (10th Cir. 2016)(“The Fourth Amendment protects against the
government’s . . . unprivileged trespass on [Constitutionally protected] property . . . for the
purpose of conducting a . . . seizure . . . .” (quoting U.S. Const. amend. IV)) -- then any such

- 40 -

warrantless search was justified by exigent circumstances, as noted above, see Section I.C.2 supra
at 34-36. Accordingly, Jones and Ali did not violate A. Ramirez’ Fourth Amendment right against
unreasonable searches.
Even if A. Ramirez could show that a violation of his Fourth Amendment search rights did
occur, he does not demonstrate that such a violation was clearly established. The Court’s
independent research identifies no caselaw holding that a Fourth Amendment search violation
exists under these circumstances. Accordingly, even if there were a violation, A. Ramirez cannot
show that the law was clearly established that a Fourth Amendment violation occurs under these
circumstances at the time he suffered his alleged violation, so Jones and Ali are entitled to qualified
immunity. See Perea v. Baca, 817 F.3d at 1202. Because Jones and Ali did not violate A. Ramirez’
Fourth Amendment seizure or search rights, and because any such violation was not clearly
established at the time, they are entitled to summary judgment on A. Ramirez’ claims against them
on the basis of qualified immunity.
II.

JONES AND ALI DID NOT VIOLATE S. RAMIREZ’ FOURTH AMENDMENT
RIGHTS.
Jones and Ali did not violate S. Ramirez’ Fourth Amendment rights and any such violation

was not clearly established. Jones and Ali did not seize unconstitutionally S. Ramirez, because
they did not detain her in any manner; nor did they unconstitutionally search her, because the only
basis for such a conclusion is their entry onto the Ramirez property, which is not unconstitutional
for reasons discussed above. The A. Ramirez MSJ contains no argument how Jones and Ali’s
conduct violated S. Ramirez’ rights: it focuses solely on the violation of A. Ramirez’ rights. 14 The

14

The Court’s Order denying the A. Ramirez MSJ, focuses solely on the alleged violations
of A. Ramirez’ rights, because the A. Ramirez MSJ only contains argument that Jones and Ali
violated A. Ramirez’ rights, with no argument regarding S. Ramirez’ rights. See Order at 1-11.
- 41 -

unambiguous record evidence -- including S. Ramirez’ own testimony -- establishes indisputably
that Jones and Ali did not violate S. Ramirez’ rights against unreasonable seizure or search, and
that any such violation was not clearly established.
A.

JONES AND ALI DID NOT UNLAWFULLY SEIZE S. RAMIREZ.

Jones and Ali did not violate S. Ramirez Fourth Amendment rights against unreasonable
seizure, because their conduct did not constitute a seizure of S. Ramirez. During Jones and Ali’s
Terry detention of A. Ramirez, S. Ramirez was not arrested, nor was she Terry detained. Cf.
Romero v. Story, 672 F.3d 880, 885 (10th Cir. 2012)(“An arrest, for purposes of the Fourth
Amendment, is a seizure, which occurs ‘only when, by means of physical force or a show of
authority, [an individual’s] freedom of movement is restrained.’” (quoting Fogarty v. Gallegos,
523 F.3d 1147, 1155 (10th Cir. 2008))); United States v. Mosley, 743 F.3d 1317, 1328 (10th Cir.
2014)(“During ‘brief investigatory stops of persons or vehicles that fall short of [a] traditional
arrest,’ such as Terry stops, ‘the Fourth Amendment is satisfied if the officer’s action is supported
by reasonable suspicion to believe that criminal activity “may be afoot.”’” (quoting United States
v. Arvizu, 534 U.S. 266, 273 (2002), in turn quoting United States v. Sokolow, 490 U.S. 1, 7
(1989))); United States v. Roberson, 864 F.3d 1118, 1121 (10th Cir. 2017)(“A police officer may
seize someone either by physical force or a show of authority.”); United States v. Salazar, 609 F.3d
1059, 1064 (10th Cir. 2010)(“[W]hen an officer does not apply physical force to restrain a subject,
a Fourth Amendment seizure occurs only if (a) the officer shows his authority; and (b) the citizen
‘submits to the assertion of authority.’” (quoting California v. Hodari D., 499 U.S. 621, 626
(1991))). None of these Fourth Amendment seizure conditions obtained: the officers did not

The Jones MSJ and Ali MSJ, however, do argue that they did not violate S. Ramirez’ Fourth
Amendment rights.
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handcuff S. Ramirez or detain her; she was not told she was not free to leave, nor did the officers’
conduct in any way indicate she was not free to leave. The unambiguous lapel footage and her
own testimony establishes this conclusion. While the line between an arrest and a Terry detention
can sometimes be unclear, neither occurred in this situation.

Jones and Ali did not seize

S. Ramirez, so Jones and Ali did not violate S. Ramirez’ rights against unreasonable seizure.
Even if they did seize S. Ramirez and did so unconstitutionally, S. Ramirez points to no
clearly established law demonstrating a Fourth Amendment seizure violation lies on such facts as
these. The Court’s independent research identifies no applicable caselaw for such a proposition.
Accordingly, even if there were a violation, S. Ramirez cannot show that the law was clearly
established that a Fourth Amendment violation occurs under these circumstances at the time she
suffered her alleged violation, so Jones and Ali are entitled to qualified immunity. See Perea v.
Baca, 817 F.3d at 1202.
B.

JONES AND ALI DID NOT UNLAWFULLY SEARCH S. RAMIREZ.

Jones and Ali did not violate S. Ramirez’ Fourth Amendment search rights. The sole basis
for an unconstitutional-search conclusion -- Jones and Ali’s warrantless entry onto S. Ramirez’
property -- fails for the same reasons that A. Ramirez’ identical claim fails. First, Jones and Ali’s
entry onto the Ramirez’ property does not constitute a search: they did not enter the home’s
curtilage without a warrant, because the Ramirezes manifest no expectation of privacy in a front
lawn exposed to the public, see Section I.C.1 supra, at 31-34; Section E supra, at 38-41; on the
trespass theory, the officers’ entry was not an unlicensed physical intrusion on the basis that the
officers possessed an investigatory purpose, so the trespass alone is not a Fourth Amendment
search, see Section E supra, at 38-41. Even if the Court concluded the trespass was a search on
the basis that the officers’ purpose was to execute A. Ramirez’ seizure, see Section E supra, at 38-

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41, nevertheless, such a warrantless search of S. Ramirez’ property is not unconstitutional, because
exigent circumstances justified it. See Section I.C.2 supra, at 34-36.
Last, even if Jones and Ali’s conduct did amount to a constitutional violation of
S. Ramirez’ Fourth Amendment search rights, the Plaintiffs identify no clearly established law
establishing such a violation as to put Jones and Ali on notice of their actions’ unconstitutionality.
The Court’s independent research identifies no caselaw holding that a Fourth Amendment search
violation exists under these circumstances. Therefore, Jones and Ali are entitled to qualified
immunity. See Perea v. Baca, 817 F.3d at 1202. Because Jones and Ali did not violate S. Ramirez’
Fourth Amendment seizure or search rights, and because any such violation was not clearly
established at the time, they are entitled to summary judgment on A. Ramirez’ claims against them
on the basis of qualified immunity.
IT IS ORDERED that: (i) the Plaintiff’s Opposed Motion for and Memorandum in
Support of Partial Summary Judgment Against Defendants Jacob Jones and Malik Ali on
Unreasonable Seizure and Excessive Force Claims, filed August 14, 2023 (Doc. 54), is denied;
Officer Malik Ali’s Motion for Summary Judgment on the Basis of Qualified Immunity and for
Failure to Provide Factual Support for Plaintiffs’ Their Claims and Memorandum in Support, filed
October 18, 2023 (Doc. 69), is granted; (iii) the Defendants’ Motion for Summary Judgment on
the Basis of Qualified Immunity and on Other Grounds and Memorandum in Support, filed
October 19, 2023 (Doc. 72), is granted; (iv) Defendant Board of County Commissioners of Sierra
County is dismissed with prejudice; (v) the SAC’s claim of malicious prosecution liability is
dismissed with prejudice; (vi) the Court will prepare an order entering Final Judgment in this case.

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________________________________
UNITED STATES DISTRICT JUDGE

Counsel:
Christopher K.P. Cardenas
Robert L. Sharpe, Jr
Cardenas Law Firm LLC
Las Cruces, New Mexico
Attorneys for the Plaintiffs
Daniel J. Macke
Macke Law & Policy, LLC
Albuquerque, New Mexico
Attorneys for Defendants Board of County Commissioners of Sierra County and Deputy
Jacob Jones
Patricia Williams
Natasha Wesenberg
Wiggins, Williams & Wiggins, P.C.
Albuquerque, New Mexico
Attorneys for Defendant Officer Malik Ali

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