M. CHRISTINA ARMIJO, District Judge.
The Court has considered the parties' submissions and the relevant law, and is otherwise fully informed. For the following reasons, the Court
In September 2015 Plaintiffs filed a Complaint alleging deprivation of their constitutional rights under 42 U.S.C. § 1983.
Plaintiffs allege in the Second Amended Complaint that the Program "is a privately funded program for troubled youths that provides a simple ranch life with the goal of helping troubled teenagers turn their lives around." [Doc. 76, ¶ 11] They further allege that Hall was enrolled in the Program at the time of the events at issue, Scott is an owner and director of the Program and Colette owns a community property interest in some of the Program. [Doc. 76, ¶¶ 5-7] At all material times, Defendant was employed by the New Mexico State Police. [Doc. 76, ¶ 8]
The following facts are undisputed. In either January or May, 2013, Defendant began investigating allegations of child abuse of youths enrolled in the Program. [Doc. 91, ¶ 2; Doc. 94, ¶ 2] In September 2013, a resident of the Program was killed in a car accident while riding in a vehicle driven by a Program staff member. [Doc. 94, SAMF ¶ 4; Doc. 91, ¶ 10; Doc. 95] A few days after the accident, Defendant contacted Scott to arrange to question people at the Ranch. [Doc. 91, ¶ 9; Doc. 94, ¶ 4, SAMF ¶ 5] The parties disagree over whether Defendant made clear that he would also interview youths about the child abuse allegations, but it is undisputed that Defendant arranged with the Children, Youth and Families Department (CYFD) for CYFD personnel to accompany him to the Ranch to interview youths there. [Doc. 91, ¶ 10; Doc. 94, SAMF ¶ 10, 13-14; Doc. 95] On September 30, 2013, Defendant arrived at the Ranch with five other state police officers as well as five staff members of CYFD. [Doc. 91, ¶ 14-15; Doc. 94, SAMF ¶ 16] Plaintiffs allege that, over objections by the Chandlers and "[u]sing threats and coercion, CYFD and the New Mexico State Police entered the property and interviewed the youths without permission or a warrant." [Doc. 76, ¶ 47] Specifically, Plaintiffs allege, on behalf of the Program and Scott, that
[Doc. 76]
Count II is titled "§ 1983 Unlawful Detention in Violation of the Fourth Amendment." [Doc. 76] Plaintiffs allege, on behalf of Hall, that Defendant "illegally entered onto the Tierra Blanca Creek Ranch property and detained Bryce Hall against his will without warrants or other legal basis," [Doc. 76, ¶ 102] and that "because of the actions by [Defendant,] and/or others under his command or in the course of events instigated by him, Plaintiff Bryce Hall was forcibly sent away from the Program and deprived of his constitutional right of association, and the care and guidance of the . . . Program, which he was depending on to turn his life around and keep him out of trouble." [Doc. 76, ¶ 110] Plaintiffs further allege that after the interviews, CYFD "directed [the parents of youths in the Program] to remove their youths from the . . . Program because the Program was going to be shut down." [Doc. 76, ¶ 60] The Second Amended Complaint states that Scott was forced to "return the boys to their families due to the untenable situation caused by the actions of CYFD following the September 30, 2013, interviews." [Doc. 76, ¶ 56]
Defendant now moves for summary judgment on the basis of qualified immunity. [Doc. 91] Plaintiffs oppose the motion and move for additional discovery pursuant to Rule 56(f). [Doc. 94]
The doctrine of qualified immunity shields government officials performing discretionary functions from suit and liability for civil damages "unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known." Eaton v. Meneley, 379 F.3d 949, 954 (10th Cir. 2004). "[W]hen a defendant raises the defense of qualified immunity, the plaintiff has the initial two-part burden to show that (1) a reasonable jury could find facts supporting a violation of a constitutional right, which (2) was clearly established at the time of the defendant's conduct." Sweat v. City of Las Cruces, No. 15-CV-0226 RB/SMV, 2016 WL 9087264, at *3 (D.N.M. Apr. 21, 2016); see Cillo v. City of Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation." Cortez v. McCauley, 478 F.3d 1108, 1114 (10th Cir. 2007) (internal quotation marks and citation omitted). A plaintiff ordinarily demonstrates that a law is clearly established by referencing a Supreme Court or Tenth Circuit decision on point, or showing that the clearly established weight of authority from other courts has determined the law to be as the plaintiff maintains. Medina v. City & County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992). Only if the plaintiff satisfies both elements does the defendant bear the normal burden of the summary judgment movant of "showing that no material factual issues remain to defeat his claim of qualified immunity." Pallottino, 31 F.3d at 1026 (quoting Losavio, 847 F.2d at 646).
Consistent with this framework, the Court will first examine whether Plaintiffs have raised a question of fact as to whether Defendant violated their constitutional rights, then address whether the law was clearly established such that a reasonable officer would have known that his conduct was unlawful under the circumstances.
Defendant asserts that he is entitled to qualified immunity because Colette and/or Scott consented to his entry to the Ranch, and, therefore, he did not violate Plaintiffs' Fourth Amendment rights. Plaintiffs argue that any consent given by Colette or Scott was coerced by Defendant's trickery or demanding and threatening behavior. Alternatively, they argue that questions of material fact preclude summary judgment as to whether Scott or Colette voluntarily consented to Defendant's entry onto the property. [Doc. 94]
The Fourth Amendment provides:
"It is a basic principle of Fourth Amendment law . . . that searches and seizures inside a home without a warrant are presumptively unreasonable." Kentucky v. King, 563 U.S. 452, 459 (2011) (internal quotation marks and citation omitted). "But . . . this presumption may be overcome in some circumstances because the ultimate touchstone of the Fourth Amendment is `reasonableness.'" Id. (alterations, internal quotation marks, and citation omitted). When the Fourth Amendment is implicated, the Government bears the burden of demonstrating that a warrant was not required because an exception applied. See United States v. Jeffers, 342 U.S. 48, 51 (1951) (stating that "the burden is on those seeking the exemption [from the warrant requirement] to show the need for it").
One such exception to the Fourth Amendment's warrant requirement is voluntary consent. When officers obtain voluntary consent to enter a home, a warrantless search or seizure is not unconstitutional. See United States v. Lopez, 777 F.2d 543, 548 (10th Cir. 1985). To establish that there was voluntary consent, "(1) there must be clear and positive testimony that consent was unequivoc[al] and specific and freely and intelligently given; [and] (2) the Government must prove consent was given without duress or coercion, express or implied." Id. (internal quotation marks and citation omitted). "[T]he courts indulge every reasonable presumption against the waiver of fundamental constitutional rights and there must be convincing evidence that such rights were waived." Id. (alterations, internal quotation marks and citation omitted). Consent may be demonstrated by actions, rather than communicated verbally. See United States v. Payan, 905 F.2d 1376, 1379 (10th Cir. 1990) (consent given where the officer "asked [the defendant], `would you mind opening the trunk,' and [the defendant] had done so without hesitancy or comment").
Consent may be rendered involuntary, i.e., coerced, by use of "physical mistreatment, use of violence, threats, threats of violence, promises or inducements, deception or trickery." United States v. McCurdy, 40 F.3d 1111, 1119 (10th Cir. 1994). Other factors include the number of officers present and the physical and mental capacity of the defendant. See United States v. Jones, 701 F.3d 1300, 1318 (10th Cir. 2012). "[G]overnment actions are coercive when they imply an individual has no right to refuse consent," or that there will be "punitive ramifications" for refusal of consent. United States v. Harrison, 639 F.3d 1273, 1279 (10th Cir. 2011) (internal quotation marks and citation omitted). No one factor is dispositive; rather, the Court must assess the totality of the circumstances. United States v. Gay, 774 F.2d 368, 376 (10th Cir. 1985) ("Whether a consent was voluntary or was the product of coercion or duress, express or implied, is to be determined by the totality of the circumstances."). Whether a person gave voluntary consent is judged by an objective standard: "what would the typical reasonable person have understood by the exchange between the officer and the suspect?" United States v. Waupekenay, 973 F.2d 1533, 1535 (10th Cir. 1992) (internal quotation marks and citation omitted). Thus, a plaintiff's beliefs about the exchange are immaterial to the extent they differ from what a reasonable person would have understood.
"[T]he test for existence of a `show of authority' is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer's words and actions would have conveyed that to a reasonable person." California v. Hodari D., 499 U.S. 621, 628 (1991). For example, in United States v. Iribe, our Tenth Circuit held that there was no coercion where, although there were five officers present, the exchange between the officers and the consenting person was "cordial and spoken in low volume[,] [n]o promises or threats were made in an attempt to extract her consent[, and she] . . . signed a consent to search form[ which] contained a clause discussing the right to refuse consent." 11 F.3d 1553, 1557-58 (10th Cir. 1993). In Wilson, the Court held that what began as a consensual encounter evolved into a nonconsensual seizure when the officers made "statements about the legality of Wilson's refusal, and order[ed her] to go get her son or . . . they would do it for her, after persistently asking her to do so." Wilson v. Jara, 866 F.Supp.2d 1270, 1298 (D.N.M. 2011), aff'd, 512 F. App'x 841 (10th Cir. 2013).
Finally, "when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant." United States v. Matlock, 415 U.S. 164, 171 (1974). Instead, the prosecution "may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." Id. "[A] third party has authority to consent to a search of property if that third party has either (1) mutual use of the property by virtue of joint access, or (2) control for most purposes over it." United States v. Rith, 164 F.3d 1323, 1329-30 (10th Cir. 1999). The husband-wife relationship gives rise to such a presumption of authority. Id. at 1330.
The following facts are undisputed except as noted. On September 24, 2013, Defendant contacted Scott seeking to interview Scott and residents of the Program and to arrange a time for the interviews. While the parties agree that this call took place, they disagree on whether it was clear from the call that Defendant wished to interview all of the residents and whether Scott agreed that he could do so. [See Doc. 51-1, Gonzales affidavit, ¶ 11; Doc. 94, pg. 46, Scott affidavit, ¶¶ 5, 6, 10] The transcript of the September 24 call includes the following exchanges:
[Doc. 51-2, Tr. 9/24/13, 23:15-24]
[Doc 51-2, Tr. 9/24/13, 32:13-19] Elsewhere in the transcript, Scott refers to "pulling out those guys," apparently referring to selecting a few of the youth residents for interviews. [Doc. 51-2, Tr. 9/24/13, 35:5-6] During the conversation, Scott voluntarily suggested that the interviews take place at the ranch. [Doc. 51-2, Tr. 9/24/13, 35:1-7; Doc. 91, ¶ 12; Doc. 94, ¶ 7] Defendant and Scott agreed that the interviews would take place on Monday, September 30, 2013, at 10:00 a.m. [Doc. 51-2, Tr. 9/24/13, 35:9 - 36:16; Doc. 91, ¶ 13; Doc. 94, ¶ 8] Scott was not informed that Defendant would be accompanied by CYFD personnel. [Doc. 94, SAMF ¶¶ 13-14; Doc. 95]
On the morning of September 30, 2013, Defendant, five other New Mexico State Police officers, and five representatives of CYFD arrived at the Ranch to conduct interviews. [Doc. 91, ¶ 14; Doc. 94, ¶ 9, SAMF ¶ 16 (stating number of officers and CYFD personnel); Doc. 95] They were stopped at the property gate by Colette, who called Scott on a speaker phone. [Doc. 91, ¶ 15; Doc. 94, ¶ 10, SAMF ¶ 18] Defendant then spoke with Scott on speaker phone regarding the number of youths who would be interviewed. [Doc. 51, Exh C (transcript of 9/30/13 call); Doc. 61, Exh. 6 (Colette affidavit, ¶ 5); Doc. 91, ¶ 15; Doc. 94, ¶ 10, SAMF ¶ 23-27; Doc. 95] During the conversation, Defendant stated to Scott that he wished to interview all of the residents of the Program. [Doc. 51-3, Tr. 9/30/13, 2:17-3:21; Doc. 91, ¶ 16; Doc. 94, ¶ 11] The exchange was as follows:
[Doc. 51-3, Tr. 9/30/13, 2:17-3:21]
During the conversation, Defendant stated that Scott could not be present while the interviews with the youths took place because Scott was "listed as a suspect." [Doc. 51-3, Tr. 9/30/13, 5:20-25; Doc. 91, ¶ 17; Doc. 94, ¶ 12, SAMF ¶ 25] He further stated that no one other than law enforcement or CYFD personnel could be in the room when interviewing victims of child abuse. [Doc. 51-3, Tr. 9/30/13, 6:4-6; Doc. 91, ¶ 17; Doc. 94, ¶ 12; SAMF ¶ 25] Defendant offered to retrieve the youth residents who were working offsite and bring them to the Ranch to start the interviews, but Scott stated that he could send somebody to get them. [Doc. 51-3, Tr. 9/30/13, 7:4-12; Doc. 91, ¶ 18; Doc. 94, 13, SAMF ¶¶ 26-27]
At the end of the conversation the phone was passed back to Colette. [Doc. 91, ¶ 19; Doc. 94, ¶ 14] Defendant states that "[f]ollowing [Colette] concluding her conversation with [Scott], [Defendant] asked, `So I guess for now, are we able to go in and out?' to which [Colette] responded, `yeah we can go in and . . . yeah. Let's just get it going.'" [Doc. 91, ¶ 20; Doc 51-4 (Conv. w/ Colette), Tr. 2, 9/30/13, 6:8-16] Plaintiffs dispute that the transcript cited by Defendant supports this assertion and state that "[i]t is impossible to discern from the transcript provided who was speaking to [Colette] . . . and the context of the discussion is not clear from the transcript." [Doc. 94, ¶ 15] Nevertheless, Plaintiffs do not dispute that Colette ultimately gave permission for Defendant and the others to enter the property. [Doc. 94, SAMF ¶ 30] Thus, the precise statement permitting access—and the parties' dispute over it—is immaterial at this juncture.
A few hours after Defendant's arrival and after Defendant and some officers ate lunch provided by Colette, the youths returned to the Ranch and interviews began. [Doc. 91¶ 23; Doc. 94, ¶ 17] Hall was one of the residents interviewed. [Doc. 91, ¶ 24; Doc. 94, ¶ 18] Defendant did not personally interview Hall. [Doc. 91, ¶ 25; Doc. 94, ¶ 19]
With this background in mind, the Court will examine each count in the Second Amended Complaint in turn.
As a preliminary matter, the Court notes that, in the Second Amended Complaint, Plaintiffs assert a Fourth Amendment claim on behalf of the Program. [Doc. 76] It is undisputed that the Program is a sole proprietorship owned by Scott. [Doc. 76, ¶ 9; Doc. 91, ¶ 1; Doc. 94, ¶ 1] Defendant argues that the Program's claim must be dismissed because, as a sole proprietorship, the Program has no legal identity separate from Scott. [Doc. 91, pg. 7] See Two Old Hippies, LLC v. Catch the Bus, LLC, 784 F.Supp.2d 1221, 1225 (D.N.M. 2011) (stating that a sole proprietorship "has no legal identity separate from the proprietor himself"); 1 William M. Fletcher, et al., Cyc. of the Law of Corp. § 23 (stating that "[a] sole proprietorship is merely a designation assigned to a manner of doing business by an individual who is solely responsible for all of the debts and obligations of the business; no legal distinction exists between the individual and the business."). Plaintiffs do not respond to this argument. [Doc. 94] The Court agrees with Defendant that, because it is indistinct from its owner, a sole proprietorship "does not have standing to sue in its own right." Geneva Coll. v. Sebelius, 929 F.Supp.2d 402, 429 (W.D. Pa. 2013), on reconsideration in part (May 8, 2013); Crane Const. Co. v. Klaus Masonry, 71 F.Supp.2d 1138, 1144 (D. Kan. 1999) (stating that "a sole proprietorship is unable to bring suit in its own name"). Hence, to the extent the Program asserts any claims, they must be dismissed.
Defendant next argues that the Fourth Amendment's protections do not apply here because "neither a search or seizure of the property nor a search or seizure of Mr. Chandler's person was conducted on September 30, 201[3]." [Doc. 91, pg. 10] However, in Payton, the Supreme Court held that "`the Fourth Amendment has drawn a firm line at the entrance to the house.'"
The next question is whether Plaintiffs have shown a question of fact surrounding whether Colette or Scott voluntarily consented to Defendant's entry to the Ranch. If, as Defendant argues, the undisputed facts show that Colette and Scott voluntarily consented to Defendant's entry, then there was no constitutional violation and the Court's inquiry is complete. In that case, Defendant would be entitled to qualified immunity. If, on the other hand, Plaintiffs demonstrate that there is a factual question precluding summary judgment as to whether Colette's and Scott's consent was coerced, then the Court must go on to determine whether the constitutional right allegedly violated was clear such that Defendant would have known his conduct was illegal.
The parties devote substantial portions of their arguments to whether Defendant misrepresented his intent to Scott in the days leading up to September 30, 2013, and to what Scott knew about Defendant's investigation and when he knew it. The parties argue over what was said during the September 24, 2013 call, whether there was a second call on September 27 or 28, 2013, what was said during the second call, and what Scott knew about the scope of the interviews before September 30, 2013. [Doc. 91, pg. 11; Doc. 94, pg. 26-29] Both parties' reliance on these calls, however, is misplaced.
To the extent Defendant relies on Scott's consent during the September 24, 2013 phone call to Defendant's entry to the Ranch, such consent, if any, is relevant only to the extent it informs the Court's analysis of Colette and Scott's consent on September 30, 2013 at the gate to the Ranch. This is so because it is clearly established that consent may be withdrawn. See United States v. Torres, 663 F.2d 1019, 1027 (10th Cir. 1981) (stating that "[t]he question as to whether [consent] was [withdrawn] is . . . a factual one"). Thus, even if Scott had agreed to the interviews during calls on September 24th or 28th, viewing the facts in the light most favorable to Plaintiffs, it is clear that Colette stopped Defendant and the other officers and CYFD personnel at the gate to the Ranch because the circumstances surrounding their entry differed from her expectation based on the calls. [Doc. 91, ¶ 15 (Defendant stating that he was "not permitted entrance onto the property" when he arrived at the Ranch); Doc. 94, ¶ 10, SAMF ¶ 18; Doc. 19] Similarly, Scott expressed several times during the speaker phone call on September 30, 2013, that he had not given consent for Defendant to interview all of the youths at the Ranch about both the accident and the child abuse allegations. [Doc. 94, SAMF ¶ 27; Doc. 95; Doc. 51-3, Tr. 9/30/13] Hence, viewing these facts and their implications in Plaintiffs' favor, any consent given during the phone calls was withdrawn at the gate. See Manzanares v. Higdon, 575 F.3d 1135, 1143 (10th Cir. 2009) (recognizing that "consent which waives Fourth Amendment rights may be limited, qualified, or withdrawn" (internal quotation marks and citation omitted)); 4 Wayne R. LaFave, Search & Seizure § 8.2(f) (5th ed.) ("A consent to search is not irrevocable, and thus if a person effectively revokes his prior consent prior to the time the search is completed, then the police may not thereafter search in reliance upon the earlier consent.")
For their part, Plaintiffs rely on the September 24, 2013 call to argue that Defendant used "trickery" to obtain Scott's consent to access the property, and cite Harrison, in which the Tenth Circuit stated that "the Fourth Amendment can certainly be violated by guileful as well as by forcible intrusions into a constitutionally protected area." 639 F.3d at 1278-79 (internal quotation marks and citation omitted). Noting that it has "repeatedly held that deception and trickery are among the factors that can render consent involuntary," the Court went on to state that whether the Government "misrepresent[ed] the nature of th[e] investigation" is considered as part of the totality of the circumstances surrounding consent to search. Id.
Plaintiffs' reliance on Harrison is misplaced because at the time Scott and Colette agreed to allow Defendant onto the Ranch property, any misrepresentation or obfuscation about the nature of the investigation had been eliminated. Plaintiffs do not dispute that Defendant told Scott, while the phone was on speaker, that 1) he wished to interview all of the youth residents, 2) the investigation was about both the accident and the child abuse allegations, and 3) Scott was a suspect. [Doc. 61, pg. 10, ¶ 19; Pg. 11, ¶¶ 20, 24; Doc. 51-3, Tr. 9/30/13, 5:20-25; 2:17-3:21] Hence, assuming that Defendant concealed or misrepresented these facts prior to September 30, 2013, they were revealed during that phone call. Colette and Scott were therefore fully informed as to the nature of the investigation by the end of the call. The Court concludes that the telephone calls leading up to Defendant's arrival at the Ranch gate are relevant only to the extent they had an impact on the voluntariness of either Colette's and/or Scott's consent on September 30, 2013.
Plaintiffs argue that Colette's and Scott's consent was coerced because of the number and type of officers present and because Defendant "demanded" access to the property and threatened to take custody of all of the youth residents. [Doc. 94, pg. 57, Colette affidavit, ¶¶ 9, 12, 14; Doc. 94, pg. 46, Scott affidavit, ¶¶ 25-27; Doc. 94, pg. 46, Scott affidavit, ¶¶ 18, 19, 25, 26] After review of the record, the Court finds that questions of fact preclude summary judgment on this issue. First, it is undisputed that Defendant was accompanied by five other officers and five CYFD personnel, whereas Colette and Scott were expecting only Defendant and "a couple of" officers. [Doc. 94, pg. 57, Colette affidavit, ¶¶ 3, 5; Doc. 91, ¶ 14; Doc. 94, ¶ 9, SAMF ¶¶ 13, 14; Doc. 95] It is also undisputed that Defendant did not tell Scott that CYFD personnel would be present to interview the youths. [Id.]
Second, Plaintiffs submitted affidavits by Scott and Colette stating that Defendant "demanded" entry to the Ranch and that, because of Defendant's conduct, they did not feel free to refuse consent. [Doc. 94, pg. 46, Scott affidavit; Doc. 94, pg. 57, Colette affidavit] Both Scott and Colette state that Defendant threatened to take the youths away from the Ranch if they did not consent. [Doc 94, pg. 57, Colette affidavit, ¶¶ 9, 12, 14; Doc. 94, pg. 46, Scott affidavit, ¶¶ 18, 19, 25, 26; see Doc. 94, SAMF ¶¶ 28, 30] Defendant does not dispute the latter assertion in his Reply as required by Local Rule 56.1(b), which provides that "[t]he Reply must contain a concise statement of those facts set forth in the Response which the movant disputes or to which the movant asserts an objection" and that "[e]ach fact must be lettered, must refer with particularity to those portions of the record upon which the movant relies, and must state the letter of the non-movant's fact." Instead, he states that Plaintiffs' additional facts "do not controvert Defendant's material facts which Defendant relies upon for summary judgment" and that "Plaintiffs' facts are therefore immaterial." [Doc. 95, pg. 1] "An assertion of relevancy, without more, does not specifically dispute an enumerated undisputed fact but rather constitutes argument of counsel." Martinez v. Romero, No. CIV-11-785 ACT/WDS, 2012 WL 13071884, at *3 (D.N.M. Nov. 19, 2012).
Instead, Defendant argues elsewhere in his Reply that Plaintiffs' assertions that he threatened to remove the youths are contradicted by the record and points to the transcript of his conversation with Scott on the speaker phone. [Doc. 95, pg. 10-11; Doc. 51-3] He argues that "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." [Doc. 95, pg. 3 (quoting Thomson v. Salt Lake City, 584 F.3d 1304, 1312 (10th Cir. 2009) (alterations omitted)].
Defendant's argument is unavailing for several reasons. First, it is unclear from the transcripts whether they encompass the entirety of conversations at the gate. For instance, none of the transcripts includes a greeting between Defendant and Colette, suggesting that there is a portion of their interaction not captured. Similarly, there is no evidence of how much time, if any, elapsed between the conversation with Scott on the telephone and the subsequent conversation with Colette, and what, if anything, was said during that time. [See Doc. 51-3, 51-4] Moreover, a third transcript provided by Plaintiffs is unclear as to the identity of the speakers and the time the conversation occurred. [Doc. 61, pg. 59 (denoting the speakers as "Felipe Gonzales," "Mrs. Chandler," and "Male2," but also indicating that it is unclear whether one of the males speaking is Defendant)] Hence, the Court cannot find, based on this record, that the transcripts are complete representations of the exchanges at the gate. Cf. Seidel v. Crayton, No. CV 15-00925-MV/CG, 2017 WL 4737254, at *7 (D.N.M. Oct. 19, 2017) (stating that a plaintiff's assertions are not "blatantly contradicted by the record" where "the video d[id] not clearly show whether [the officer] applied any force to [the plaintiff because t]he placement of the camera and the location of the [p]laintiffs' SUV obscure[d] the positions of [the officer's] hands and arms and [the plaintiff's] body").
Second, Defendant implies that an affidavit submitted by a nonmovant does not constitute evidence in the record. But "[a]s long as an affidavit is based upon personal knowledge and sets forth facts that would be admissible in evidence, such averment of a party is legally competent to oppose summary judgment, notwithstanding its inherently self-serving nature." Williams v. Shields, 77 F. App'x 501, 503 (10th Cir. 2003) (alteration, internal quotation marks, and citation omitted); see Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991) (stating that affidavits may create a question of fact and that "affidavits must be based upon personal knowledge and set forth facts that would be admissible in evidence; conclusory and self-serving affidavits are not sufficient"); Fed. R. Civ. P. 56(c)(1) (stating that a nonmovant may support its assertions of fact by referring to "materials in the record, including depositions, documents, electronically stored information, affidavits or declarations,. . . ." (emphasis added). In Williams, for example, an affidavit by the defendant stating that he was released from prison on July 11, 2000, was valid to establish a question of material fact even though it was contradicted by other evidence in the record, such as prison records, showing that he was released on July 10, 2000. 77 F. App'x at 503; see Hall v. Queensbury Union Free Sch. Dist., 147 A.D.3d 1249, 1252 (N.Y. App. Div. 2017) ("While the affidavit . . . was contradicted by other evidence in the record, such contradictions presented credibility determinations, which [the] Supreme Court should have left to be resolved by the trier of fact").
Finally, cold transcripts do nothing to resolve the conflict in the parties' characterization of Defendant's conduct and the encounter as a whole, as it is impossible to determine the tone and tenor of the conversation from the text. See United States v. Williams, No. 2:09-CR-27-FTM-29DNF, 2010 WL144870, at *5 (M.D. Fla. Jan. 8, 2010) ("The disadvantage of reviewing a `cold' transcript is that a court is unable to discern the nuances of language, tone, inflection and demeanor."); cf. Benavidez v. Shutiva, 2015-NMCA-065, ¶ 27, 350 P.3d 1234 (concluding that "interpretation of [a] video gives rise to a dispute over material facts" where the officers' and defendant's conduct depicted in the video could be interpreted several ways).
The Court concludes that Plaintiffs have demonstrated that a material question of fact exists as to whether Defendant's statements, conduct, or demeanor, under the totality of the circumstances including the number and type of officers and interviewers present and the alleged threat to remove youths from the Ranch, unlawfully coerced Colette's or Scott's consent for his entry onto the Ranch property. Cf. Walsh, 240 F. Supp. 2d at 748 (holding that "a reasonable jury could find that any putative consent given by Mr. Walsh was coerced by references to removal of the children if opposition continued; detention of the family; frisk of the father; the number, office, and power of the county officials an city officers present; and the apparent (or, at least threatened) arrest of Mr. Walsh for obstruction of official business" (emphasis added)); Adelman v. Smith, No. 2:13-CV-0096-ABJ, 2015 WL 11090921, at *9 (D. Wyo. Aug. 10, 2015) ("Because of the disparity in the [d]efendants' and [p]laintiffs' depiction of events, which the audio tape does not resolve, the [c]ourt finds that there are disputed facts, specifically whether [the plaintiff] gave her consent for [the d]efendant to enter [her] home, which a reasonable juror could resolve in favor of either side on the issue of whether [the d]efendants violated [the p]laintiffs' Fourth Amendment right to be free from unreasonable searches.") reconsideration denied, No. 2:13-CV-0096-ABJ, 2015 WL 11108640 (D. Wyo. Oct. 30, 2015).
Defendant argues that 1) he is not the appropriate defendant for Plaintiff Hall's Fourth Amendment claim because he did not personally interview Hall, and that 2) "the undisputed facts in this case demonstrate that the interview of Plaintiff Hall was a consensual encounter with a police officer." [Doc. 9, pg. 16] As to the first argument, the Court disagrees that the fact that Defendant did not personally interview Hall is dispositive. "Government actors may be liable for the constitutional violations that another committed, if the actors set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights, thus establishing the requisite causal connection between the government actor's conduct and a plaintiff's constitutional deprivations." Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir. 2006) (internal quotation marks and citation omitted). It is undisputed that Defendant was the lead investigator in charge of the interviews of the youths, arranged to have CYFD personnel present to interview youths, and prepared the questions to be asked of the youths. [Doc. 94, ¶¶ 34, 35; Doc. 95] Hence, this argument is unavailing.
As to Defendant's second argument that the interview of Plaintiff Hall was consensual, this contention is based in large part on Defendant's position that Scott and/or Colette consented to his entry onto the Ranch property and to the interview of Hall, a minor under Scott's guardianship. [Doc. 91, pg. 16; Doc. 76, ¶ 17 (alleging that Scott has legal guardianship of youths in the Program)] Defendant also asserts, and Plaintiffs do not specifically dispute, that Hall "never once asked to leave, never requested counsel, and never made any statements indicating he did not want to participate in the interview." [Doc. 95, pg. 13; Doc. 91, ¶ 27; Doc. 94, ¶ 20] However, these facts, even if undisputed, are insufficient on their own to establish Hall's voluntary consent because they do not exist in a vacuum. In other words, Defendant's argument ignores the totality of the circumstances, including the question of fact over whether Defendant and the other officers and CYFD personnel were lawfully on the property at all; Hall's age; and the undisputed facts that: Hall was not told he did not have to consent, that two people interviewed Hall in a closed room, and that no adult from the Program was present during the interview. [Doc. 94, ¶¶ 33-34; Doc. 95 (not specifically disputing these facts); Doc. 94, pg. 71-72, Hall affidavit]
The Court concludes that there is a question of fact as to whether Defendant obtained consent to enter the Ranch and interview Hall through coercive means.
Having concluded that Plaintiffs have shown that there is a question of material fact as to whether Defendant violated Plaintiffs' constitutional rights, the Court turns to whether it would have been clear to a reasonable officer that such conduct would violate the Fourth Amendment in the circumstances presented here. The Tenth Circuit recently set out the test for this prong as follows.
Sause v. Bauer, No. 16-3231, 2017 WL 2641070, at *3 (10th Cir. June 20, 2017) (alterations, internal quotation marks, and citations omitted). A case "on point" does not have to present the same exact facts, but must be analogous enough to show illegality. Hence, "[a]lthough [the plaintiff] need not show that the very action in question has previously been held unlawful, in the light of pre-existing law the unlawfulness must be apparent." A.M. v. Holmes, 830 F.3d 1123, 1136 (10th Cir. 2016), cert. denied sub nom. A.M. ex rel. F.M. v. Acosta, No. 16-984, 2017 WL 2039255 (U.S. May 15, 2017) (alterations, internal quotation marks, and citation omitted).
Defendant argues that "Plaintiffs have presented no evidence as to why a reasonable officer would not have believed that [Colette's] statements were explicit voluntary consent to enter on to the property." [Doc. 95, pg. 13] He goes on, "There is simply no clearly established law that would have put a reasonable officer on notice that in conducting voluntary onsite interviews with the children of the ranch, after having obtained consent to enter the property, they could be . . . found to have unreasonabl[y] searched or seized either the ranch itself or [Scott]." [Doc. 95, pg. 13] Finally, as to Plaintiff Hall, he argues that "there is no clearly established law that would have le[]d a reasonable officer to determine that a witness[']s lengthy, forthright, and apparently voluntary interview violated the witness's constitutional right." [Doc. 95, pg. 14]
Defendant's arguments are faulty because he misstates the premise of the inquiry by assuming that Plaintiffs' consent was voluntary. But Plaintiffs have demonstrated a question of fact over whether any consent Scott or Colette gave was coerced by Defendant's threats or intimidating conduct. Thus, the proper inquiry is whether the law was clear that consent obtained through intimidation or threats was unlawful. A.M., 830 F.3d at 1136.
The essential principles of Fourth Amendment law are well established. As another court stated, "[b]asic and applicable Fourth Amendment principles were clearly articulated and firmly embedded in our constitutional jurisprudence well before the events giving rise to this suit." Walsh, 240 F. Supp. 2d at 758-59. It is a "bedrock principle" that "government officers cannot enter a home without either prior court approval, consent, or exigent circumstances" Id. "[T]he law properly presumes [this principle is] known to every agent of the state who seeks to enter a private home. . . ." Id.
In addition, the law related to voluntary consent was clear at the time. In 1973, the United States Supreme Court stated in Schneckloth v. Bustamonte that "the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was applied, the resulting `consent' would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed." 412 U.S. 218, 228 (1973). Our Tenth Circuit case law is clear that coercion can occur in a variety of ways, including intimidation, physical force, threats, or misrepresentation. See McCurdy, 40 F.3d at 1119. In addition, a number of cases have found that threats involving children can be coercive. See, e.g., Lynumn v. Illinois, 372 U.S. 528, 534 (1963) (holding that the police statements were coercive where the defendant confessed "after the police had told her that state financial aid for her infant children would be cut off, and her children taken from her, if she did not `cooperate.'"); Siliven v. Indiana Dep't of Child Servs., 635 F.3d 921, 926 (7th Cir. 2011) (stating that "[i]n the context of Fourth Amendment seizures involving official coercion, we have noted that a threat becomes more coercive as the cost of non-compliance increases relative to the cost of compliance" and that "it is difficult to overstate the cost of non-compliance—losing custody of one's child, even temporarily" where officers had threatened to place the child in foster care if the mother did not take him to his grandmother's house (internal quotation marks and citation omitted)); United States v. Tingle, 658 F.2d 1332, 1336 (9th Cir. 1981) (stating that the officer's statements were "patently coercive" where he told the defendant that, unless she cooperated, "a lengthy prison term could be imposed, that [she] had a lot at stake, that her cooperation would be communicated to the prosecutor, that her failure to cooperate would be similarly communicated, and that she might not see her two-year-old child for a while" (footnotes omitted)); Walsh, 240 F. Supp. 2d at 760 (denying qualified immunity where the officers threatened to arrest the defendant and remove his children if he did not consent, stating that the officers "cannot reasonably claim that they, as reasonable law enforcement officers, would not reasonably have known basic Fourth Amendment doctrines relating to arrests, detentions, and searches" or that they could "believe that consent to enter private premises could be procured by threats and other coercive action").
Defendant appears to rely on the particular context of a child abuse investigation to argue that a reasonable officer would have believed the interview of Plaintiff Hall was lawful. He states that, even if "the interview [of Hall] could be viewed as an investigative detention," Defendant's conduct would be reasonable. [Doc. 91, pg. 17] He argues that his conduct was justified by the fact that "[o]fficers had reasonable suspicion
In sum, viewing the facts in their favor, Plaintiffs have met their burden to raise a question of material fact over whether Defendant violated their clearly established constitutional right to be free of unreasonable seizures. Hence, Defendant's Motion for Summary Judgment will be denied as to qualified immunity against Plaintiffs' Fourth Amendment claims.
Count I of the Second Amended Complaint is titled "§ 1983 Unlawful Entry and Unreasonable Search and Seizure and Malicious Prosecution in Violation of the Fourth and Fourteenth Amendments." [Doc. 76] Defendant argues that "summary judgment is appropriate on Plaintiffs' claim for malicious prosecution" because no search or arrest warrant was issued. [Doc. 91, pg. 13-14] Plaintiffs do not address this argument in their Response. [Doc. 94] Although they purport to deny Defendant's statement of fact that "Scott Chandler has not been prosecuted as a result of the September 30, 2013, interviews," [Doc. 91, ¶ 33] they do not point to evidence that a search or arrest warrant was issued. [Doc. 94, ¶ 26] See Local Rule Civ. D.N.M. 56.1(b) ("Each fact in dispute must be numbered, must refer with particularity to those portions of the record upon which the non-movant relies, and must state the number of the movant's fact that is disputed. All material facts set forth in the [Motion] will be deemed undisputed unless specifically controverted.").
The Court notes first that the United States Supreme Court has held that "[b]ecause the Fourth Amendment provides an explicit textual source of constitutional protection against . . . physically intrusive governmental conduct, that Amendment, not the more generalized notion of `substantive due process,' must be the guide for analyzing these claims." Graham v. Connor, 490 U.S. 386, 395 (1989); see Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion) (stating that the right to be free of arrest and prosecution without probable cause is governed by the Fourth Amendment, not the constitutional protections for substantive due process). The Tenth Circuit has also "applied this holding when the alleged denial of due process is procedural rather than substantive." Shimomura v. Carlson, 811 F.3d 349, 361 (10th Cir. 2015). Hence, the Court will consider Plaintiffs' claim only under the Fourth Amendment. See Coleman v. Cty. of Lincoln, No. CV 17-663 GBW/SMV, 2018 WL 401185, at *10 (D.N.M. Jan. 12, 2018) (stating that, where the plaintiffs alleged an unreasonable search and seizure of their home, "[the p]laintiffs' Fourteenth Amendment claim is improper in the context of a law enforcement search or seizure," and that "the Court [would] only address[ the p]laintiffs' claims under the Fourth Amendment.").
A Fourth Amendment malicious prosecution claim, unlike a false imprisonment claim, arises after the institution of legal process. See Myers v. Koopman, 738 F.3d 1190, 1194 (10th Cir. 2013) (footnote omitted), as amended on denial of reh'g (Jan. 8, 2014). Claims of malicious prosecution and false imprisonment are akin to "rain and snow[:] the claims emanate from the same source, but under different conditions." Id. "What separates the two claims?—the institution of legal process. Unreasonable seizures imposed without legal process precipitate Fourth Amendment false imprisonment claims. . . [whereas] seizures imposed with legal process precipitate Fourth Amendment malicious-prosecution claims." Id. "At common law, the issuance of an arrest warrant represents a classic example of the institution of legal process." Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008).
Here, the undisputed facts indicate that an essential element of a malicious prosecution claim—institution of legal process—is missing. Thus, summary judgment as to Plaintiffs' Fourth Amendment malicious prosecution claim shall be granted.
In their Response [Doc. 94], Plaintiffs state that additional discovery is necessary to permit them to respond adequately to Defendant's Motion for Summary Judgment. Specifically, they argue that they need additional discovery addressing what Defendant told Scott about the interviews in the days leading up to September 30, 2013, whether and when Defendant had a plan for the interviews that he concealed from Scott and Colette, and Defendant's and the other officers' conduct at the gate to the Ranch on September 30, 2013. [Doc. 94, pg. 6-7] Defendant opposes additional discovery, arguing that "[t]he requested discovery is not limited in nature, nor tailored for the purposes of responding to the subject Motion, and are overall irrelevant and unnecessary." [Doc. 95, pg. 14] He also states that Plaintiffs' request is a "red herring" because Plaintiffs are "likely already in possession of the documents they now allege[] they warrant more time to collect" because Plaintiffs have obtained "voluminous documents from CYFD and [Department of Public Safety (DPS)] by and through the current CYFD administrative proceedings [in the First Judicial District Court] and [the Inspection of Public Records Act] requests." [Doc. 95, pg. 15]
Plaintiffs also move for leave to file a sur-reply. [Doc. 97] The purpose of the proposed sur-reply is solely to address Defendant's statements regarding discovery. Plaintiffs argue that Defendant inaccurately presented an essential fact, which is that the discovery obtained in the CYFD proceeding is sealed by order of the First Judicial District Court. [Doc. 97, pg. 2] They note that they have filed a motion to unseal depositions of DPS personnel, and that "[i]n the event the [First Judicial] District Court timely releases the information . . . Plaintiffs will not need additional discovery." [Doc. 97, pg. 3]
Given the Court's conclusion that Plaintiffs have demonstrated a question of fact precluding summary judgment on the basis of evidence already in hand, additional discovery is unnecessary at this time. Hence, Plaintiffs' Rule 56(d) Request for Time to Conduct Discovery, and the Motion for Sur-Reply to Defendant's Motion for Summary Judgment [Doc. 97] shall be denied as moot.
Plaintiffs also move for spoliation sanctions against Defendant in the form of a "presumption that the missing audio recordings would have supported the Plaintiffs' argument that the events of September 30, 2013 were not consensual." [Doc. 101] In the Motion, Plaintiffs make arguments related to two sets of audio recordings. First, they contend that Defendant was on notice that audio recordings of certain interviews and conversations should have been preserved for litigation but were not. [Doc. 101, pg. 4-5] These included 1) a telephone conversation on September 28, 2013; 2) interviews by Defendant of parents of youths in the Program; 3) an interview by Defendant of Scott Chandler on October 16, 2013; 4) Defendant's conversations with Barbara Holler and Jim Hurt. [Doc. 101, pg. 4-5] Second, they argue that audio recordings by officers present at the Ranch gate on September 30, 2013 should have been preserved but were not. [Doc. 101, pg. 4] Plaintiffs note, however, that "[n]o recording of the conversation between Mrs. Chandler and Officer Williams has been provided and it apparently does not exist" and that Officer Williams stated in deposition testimony that "he did not know why the conversation was not recorded." [Doc. 101, pg. 4] Defendant responded on May 24, 2018. [Doc. 103]
The Court finds that it is unnecessary to address Plaintiffs' Motion at this time. Because Plaintiffs' seek only an inference in their favor as to the Motion for Summary Judgment and the Court has addressed the Motion without reliance on such inference, the Court will deny the Motion for Spoliation Sanctions [Doc. 101] as moot without prejudice.
For the foregoing reasons, the Court
Furthermore, the Court
Finally, the Court
