KEVIN R. SWEAZEA, Magistrate Judge.
On June 21, 2015, Torres, then a law enforcement officer with the Village of Santa Clara, was off duty hosting a Father's Day barbeque at his home on Swan Street in Silver City, New Mexico. (UMF
Detectives Murillo and Hobbs and Chief Reynolds were dispatched to Swan Street in response to a "shots-fired call." (UMF 1; Doc. 33-1). Once there, they asked Officer Serrano, also of the Santa Clara Police Department, to secure Torres's gun. (UMF 4).
Once inside, Torres asked Officer Serrano, "do you need it?"
After about forty seconds inside the house, Officer Serrano began to leave, and Torres asked Officer Serrano to "hold up." (Id., 0:0:50-0:1:50). The purpose for the request is unclear, but Officer Serrano remained for a moment before exiting the home. (Id.). Officer Serrano then returned to his squad car and placed Torres's gun and magazines on the hood. (Id.) A minute or so later, Torres joined Officer Serrano at the police unit. (Id., 0:3:45-0:5:00). Officer Serrano told Torres that "one of the officers" asked him to secure Torres gun. (Id.). The two briefly discussed the incident: Officer Serrano indicated that Torres had hit the dark-colored truck a number of times; Torres did not provide an explanation for why he shot at the truck; and Torres denied he had been drinking. (Id.). The exchange ended in a fist bump and Officer Serrano informing Torres that "they're probably going to go talk to you" and that if Torres "needed anything" to let Officer Serrano "know." (Id.).
At some point that evening or the following morning, Detective Murillo sought, obtained, and executed a search warrant for Torres's "handgun[,] handgun case[,] handgun ammunition and/or cases[,][and] DNA evidence, such items containing blood, to include DNA swabbing, articles of clothing/materials." (UMF 7, Doc. 33-3).
Detective Hobbs subsequently filed a single-count criminal complaint in the Grant County, New Mexico magistrate court charging Torres with a fourth-degree felony for "intentionally and unlawfully shoot[ing] a motor vehicle with reckless disregard for another person" in violation of N.M. Stat. Ann. § 30-3-8. (Doc. 33-3, Crim. Compl.). Chief Deputy District Attorney George Zsoka, "approved" the document but ultimately refiled the matter in state district court after the parties agreed to a nolle prosequi. The criminal information initiated in district court was later dismissed after a preliminary hearing.
Torres commenced this lawsuit in federal court on July 25, 2017. (Doc. 1, Compl.). As is relevant to this motion, Count I of the complaint alleges that the Chief and Detectives, as part of the collective term "Defendants," violated Torres's Fourth and Fourteen Amendment rights when they (1) "entered his property and home without warrant and without authority"; (2) "without a warrant and without authority, demanded and removed property from Plaintiff's home"; (3) left the property on the hood of a police car unattended; (4) made reckless misrepresentations and deliberate falsehoods to secure a search warrant; (5) fabricated an affidavit in support of criminal charges that excluded known exculpatory information and was premised upon reckless or deliberate falsehoods; (6) spoiled evidence and otherwise failed to perform a competent investigation and collect evidence; and (7) failed to corroborate or investigate information included the affidavit supporting the criminal complaint. Count II repeats Torres' allegations that "Defendants recklessly misrepresented the truth and/or forwarded deliberate falsehoods in initiating a criminal complaint against Plaintiff without probable cause" and seeks damages for "malicious prosecution under the Fourth & Fourteenth Amendments." (Doc. 1). Chief Reynolds and Detectives Murillo and Hobbs assert entitlement to qualified immunity. (See Doc. 33).
Qualified immunity entitles a law enforcement officer to avoid trial and the other burdens of litigation arising from the performance of his or her discretionary functions. See Quinn v. Young, 780 F.3d 998 (10th Cir. 2015). To give effect to the doctrine, the Court views the parties' respective burdens on summary judgment differently. See Clark v. Edmunds, 513 F.3d 1219, 1222 (10th Cir. 2008); Price-Cornelison v. Brooks, 524 F.3d 1103, 1108 (10th Cir. 2008). To defeat qualified immunity on summary judgment, the plaintiff must satisfy "a strict two-part test" by establishing with record evidence (1) "the defendant's actions violated a constitutional . . . right" and (2) that right was "clearly established at the time of the conduct at issue." Clark, 513 F.3d at 1222 (internal quotation marks and citation omitted). The Court has discretion to analyze the two prongs in whatever order it chooses "in light of the circumstances in the particular case at hand." Pearson v. Callahan, 555 U.S. 223, 236 (2009). If a plaintiff satisfies the two-part test, then—and only then—does the law enforcement officer bear his or her traditional burden under Federal Rule of Civil Procedure 56 to show the absence of a triable issue of fact. See Clark, 513 F.3d at 1222.
From what the Court can discern, Count I against the Chief and Detective comprises two distinct theories: their alleged (1) illegal entry into Torres's home and seizure of Torres's gun; and (2) malicious criminal prosecution of Torres in the state court.
The Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const., amend. IV. It also commands that "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Id. (internal capitalization omitted). "[T]he Fourth Amendment protects people, not places." Katz v. United States, 389 U.S. 347, 351 (1967). The inquiry, therefore, turns not on whether a particular place is worthy of constitutional protection, but whether the individual has an expectation of privacy in the place searched and whether that expectation was objectively reasonable. See id. There is no doubt, however, that a citizen has a reasonable expectation of privacy, and a particularly strong one, in his own home. See Kyllo v. United States, 533 U.S. 27, 31 (2001) ("At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.") (Quotation omitted)).
The Fourth Amendment's protection is not absolute. "One of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent." United States v. Pena-Sarabia, 297 F.3d 983, 985 (10th Cir. 2002). Consent must be given knowingly and voluntarily, but need not be verbally given. See Patel v. Hall, 849 F.3d 970, 981 (10th Cir. 2017). As above, the determination focuses on reasonableness, and the Court asks whether, under the totality of the circumstances, a reasonable officer would have understood from the exchange between the officer and the suspect that the suspect consented to the warrantless search and seizure. See United States v. Flores, 48 F.3d 467, 468-69 (10th Cir. 1995). Thus, "[t]he focus is not whether one subjectively consented, but rather, whether a reasonable officer would believe consent was given as `inferred from words, gestures, or other conduct.'" United States v. Lopez-Carillo, 536 F. App'x 762, 768 (10th Cir. 2013) (quoting United States v. Pena-Ponce, 588 F.3d 579, 584 (8th Cir. 2009)).
In this case, the parties agree that the Chief and Detectives themselves did not enter Torres's home or seize anything. Instead, Torres asserts these Defendants violated the Fourth Amendment because they asked Officer Serrano to secure the gun used in the incident. The Chief and Detectives do not challenge the legal foundation of Torres's theory, concede Torres has a legitimate expectation of privacy, and admit Office Serrano did not have a warrant to enter the premises or seize personal property at the time Officer Serrano entered Torres's home. As the parties frame it, the two questions the Court must answer are whether Torres consented to Officer Serrano's warrantless entry into the home and warrantless seizure of the gun and magazines.
Officer Serrano's lapel camera recorded the exchange between Officer Serrano and Torres.
After about forty seconds inside, Officer Serrano began to leave when Torres asked Officer Serrano to "hold up." Officer Serrano remained for a moment before exiting the home and returning to his squad car, where he placed Torres's gun and magazines on the hood. A minute or so later, Torres joined Officer Serrano at the police unit. There Officer Serrano told Torres "one of the officers" asked Officer Serrano to secure the gun. After some discussion about the incident—why Torres shot for which he gave no answer and whether Torres had been drinking, which he had not—Torres parted company with Officer Serrano after a fist bump.
After viewing the recording, the Court is persuaded that Officer Serrano did not violate the Fourth Amendment by opening the screen door of the house and following Torres inside.
Officer Serrano's retrieval of the weapon and magazines presents a closer call. The scope of consent is typically "limited by the breadth of the consent given." United States v. McRae, 81 F.3d 1528, 1537 (10th Cir. 1996). While the Court has little difficulty finding that Torres's hand gesture invited Officer Serrano into the house, it does not necessarily follow that Torres's non-verbal communication meant that Torres had consented to the seizure of the gun and magazine without a warrant as well. In fact, while Torres seemed willing to hand over the gun to Officer Serrano, he did not necessarily understand Officer Serrano's intention to remove it as evidenced by his question to that effect. At the same time, Officer Serrano's stated purpose for contacting Torres was to find the pistol, and Torres did not object to handing the items to Officer Serrano. Indeed, Torres handed over a magazine after Torres knew Officer Serrano was confiscating the firearm.
A strong argument exists that Torres voluntarily relinquished his Glock .40 and magazines. Acquiescence generally supports consent as does handing over items of personal property without objection. See Guerrero, 472 F.3d at 789-90; United States v. Patten, 183 F.3d 1190, 1192-95 (10th Cir. 1999) (upholding consent where an officer repeatedly asked the defendant to open his suitcase and in response the defendant did so gradually); United States v. Amador-Beltran, 655 F. App'x 666, 668 (10th Cir. 2016) (explaining that by handing personal property to an officer without limitation, the defendant "sufficiently manifested" her permission to search). Moreover, from the Court's review of the recording, none of the elements of coercion that the case law articulates are present. See United States v. Jones, 701 F.3d 1300, 1318 (10th Cir. 2012) (identifying "physical mistreatment, use of violence, threats, promises, inducements, deception, trickery, or an aggressive tone, the physical and mental condition and capacity of the defendant, the number of officers on the scene, and the display of police weapons" as non-exhaustive factors to consider in assessing voluntariness). The Court recognizes that "mere submission to lawful authority" is insufficient for consent and an officer in an individual's home that makes demands to take property carries necessarily some coercive force. See United States v. Rodriguez, 525 F.2d 1313, 1316 (10th Cir. 1975).
Even construing Officer Serrano's conduct as a directive to turn over the gun and magazines, the Court is not convinced consent was absent. In Jones, the Tenth Circuit upheld a consent finding on arguably egregious conduct by law enforcement. 701 F.3d at 1318. There, Missouri police officers entered Kansas and engaged the defendant in conversation outside of his home. One officer took the defendant's driver's license and another implied that the defendant could be on his way if he let the officers search his home. In fact, after seizing his license, one officer said to the defendant "I'm here for your marijuana plants" and "let's clear up what we have here today and make sure that there are no marijuana plants here at your house." Id. at 1320 (internal alterations omitted). The defendant did not verbalize consent; nor did he "openly refuse consent to a search of his residence." Id. at 1307. Instead, in mid-conversation, the defendant turned back toward the home and began walking. The officers followed, smelt a strong odor of marijuana, and entered a screened-in porch area. When the defendant entered into the living room of the home after unlocking a door, the defendant aimed a gun at one of the officers inside the home. Another officer shot the defendant five or six times, wounding him. The officers retreated and obtained warrants.
The defendant was ultimately indicted on federal drug charges and moved to suppress the marijuana seized, claiming he did not consent to the officers' entry into his home. The district court denied the motion, and the defendant appealed. Among other things, the defendant argued that the comment that the officers were there for his marijuana plants and their demand to "clear up" that he had no plants "rendered involuntary any consent [the defendant] may have given." Id. at 1319. The Tenth Circuit disagreed. Although the court of appeals explained that the statement "was accusatory and may well have been jolting to a reasonable person," the court could not "conclude that a reasonable person would have felt so threatened or cowed by the statement that he or she would have involuntarily complied with an officer's requests or directions." Id.
In this case, like Jones, the Court cannot say that that a reasonable person would have felt from Officer's Serrano's statements that he or she had no choice but to produce the gun and magazines. Even after Torres confirmed Officer Serrano's intent was to seize the guns, he turned over an additional magazine. Nonetheless, even though there may be competing inferences to draw from Officer Serrano's comments to Torres, the Court is permitted to and does resolve the qualified immunity issue on more narrow grounds; that Torres has not shown Officer Serrano—and by extension the Chief and Detectives—deprived Torres of any clearly established constitutional right as analyzed below in the section devoted to the second prong.
Torres implies his relationship with Officer Serrano as a "colleague and acquaintance" renders consent involuntary and argues that a triable issue of fact also exists as to whether the Silver City Police Department ordered Officer Serrano to obtain the gun and magazines. As to the first point, Torres does not cite to record evidence to establish that Officer Serrano gained access to Torres's home and took the gun on that basis. Even if such a theory is cognizable under the Fourth Amendment, Officer Serrano was dressed in full uniform as reflected in the video. Officer Serrano called out to "Manny," asked after Torres's gun, and followed Torres into the residence only after Torres waived him in. Objectively, although it appears the two were familiar, Officer Serrano did not invoke their relationship as a basis for gaining access and was there is his capacity as a law enforcement agent.
Even if Torres could offer record support for a ruse, the only concept that might square with Torres's friendship theory, see United States v. Harrison, 639 F.3d 1273, 1280 (10th Cir. 2011) (explaining that where "the effect of the ruse is to convince the resident that he . . . has no choice but to invite the undercover officer in, the ruse may not pass constitutional muster") (citation omitted), any such claim would be "blatantly contradicted" by the video footage and not capable of creating genuine issue of fact for trial. See Scott v. Harris, 550 U.S. 372, 380 (2007) ("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment."). The recoding does not evidence any conduct that reasonably could be seen as presenting Torres, himself trained in the law, as no choice but to allow Officer Serrano inside. Notwithstanding their status as coworkers and perhaps even friends, the Court concludes Torres's and Officer Serrano's service on the same police force does not provide a basis for overcoming qualified immunity.
As to the second point— an alleged existence of genuine issue of material fact as to "whether SCPD acted to direct Defendant Serrano to search and seize Plaintiff's property without a warrant, making SPCD/City of Silver City liable for his wrongful actions"— Torres's argument is not well taken. The liability of these Defendants is not at issue in this motion for summary judgment.
Even if Torres could establish that Officer Serrano's warrantless entry and seizure violated the Fourth Amendment, Torres must satisfy his legal burden to identify, cite, and apply case law that existed as of June 21, 2015 and served to prohibit Officer Serrano's actions under similar circumstances. See Gutierrez v. Cobos, 841 F.3d 895, 901 (10th Cir. 2016). "To qualify as clearly established, a constitutional right must be sufficiently clear that
Here, Torres does not cite authority in analyzing whether the Fourth Amendment forbade Officer Serrano's warrantless search and seizure, much less offer a case in which an officer was held to have violated the Constitution under circumstances where there are objective indicia of consent. Without such a case, the Court cannot say Officer Serrano acted unreasonably in entering Torres's residence and receiving the gun and magazines; Torres waived Officer Serrano into the home and handed over the personal property without objection. See Gutierrez, 841 F.3d at 901 (upholding summary judgement on qualified immunity where "Plaintiffs did not cite case law or make a legal argument to show how any infringement of their constitutional rights violated clearly established law"). Since Officer Serrano did not deprive Torres of any clearly established constitutional right, the Chief and Detectives' directive to Officer Serrano to obtain the gun likewise cannot serve as predicate for liability. The Court therefore concludes that qualified immunity is appropriate at the second step of the analysis.
Torres contends that the Chief and Detectives violated the Fourth-Amendment by maliciously prosecuting Torres in the state court on the charge of shooting at a motor vehicle in violation of N.M. Stat. Ann. § 30-3-8(B). A Fourth-Amendment claim for malicious prosecution requires the plaintiff to prove "(1) the defendant caused the plaintiff's continued confinement or prosecution; (2) the original action terminated in favor of the plaintiff; (3) there was no probable cause to support the original arrest, continued confinement, or prosecution; (4) the defendant acted with malice; and (5) the plaintiff sustained damages." Novitsky v. City of Aurora, 491 F.3d 1244, 1258 (10th Cir. 2007). The Chief and Detectives focus primarily on the lack-of-probable-cause element.
Detective Hobbs filed the criminal complaint at issue in this case along with a supporting affidavit. It is beyond debate that an officer "must have probable cause to initiate . . . prosecution under the Fourth Amendment." Stonecipher v. Valles, 759 F.3d 1134, 1141 (10th Cir. 2014). "Probable cause is not a precise quantum of evidence—it does not, for example, require the suspect's guilt to be more likely true than false." Id. (internal quotation marks and citation omitted). The question is "whether a substantial probability existed that the suspect committed the crime," which requires only "something more than a bare suspicion." Kerns v. Bader, 663 F.3d 1173, 1187 (10th Cir. 2011) (internal quotation marks and citation omitted).
In this case, Torres admits in the complaint that he shot several times at an occupied, moving vehicle on June 21, 2015. New Mexico law proscribes "willfully discharging a firearm at or from a motor vehicle with reckless disregard for the person of another." N.M. Stat. Ann. § 30-3-8(B). The car had occupants, circumstantially evidencing a risk of harm. See Adams v. Williams, 407 U.S. 143, 149 (1972) ("Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction"). Torres's allegations in the complaint constitute judicial admissions. See Guidry v. Sheet Metal Workers Int'l Ass'n, 10 F.3d 700, 716 (10th Cir. 1993); Grynberg v. Bar S. Services, Inc., 527 Fed. Appx. 736, 739 (10th Cir. 2013) (relying on Guidry and determining that statements contained in the plaintiff's complaint and answer to the counterclaim were binding admissions). These admissions establish probable cause for prosecution.
Torres fails to address probable cause as a dispositive element. Instead, Torres suggests Detective Murillo engaged in errors or omissions in "obtaining an after-the-fact warrant" for Torres's gun and ammunition. Even if true, it is hard to see how this contention negates probable cause for prosecution or is material to the analysis. Torres was charged with shooting a gun at a vehicle, which he does not deny. To the extent Torres is claiming a separate violation of the Fourth Amendment—a lack of probable cause to seize the gun and magazines because the search-warrant affidavit contained material omissions, false representations, or statements made with reckless disregard for the truth—the Court is not persuaded Torres survives summary judgment. The fact that he gave the gun and magazines to Officer Serrano without objection and with indicia of consent is not actionable under the doctrine of qualified immunity.
In any event, Torres is obligated to point to the affidavit and identify specific omissions, misrepresentations, and make an affirmative showing of dishonesty. See Snell v. Tunnell, 920 F.2d 673, 698 (10th Cir. 1990) (explaining in the warrant context, "to survive qualified immunity, a plaintiff must make a substantial showing of deliberate falsehood or reckless disregard for truth" and demonstrate that, including the omitted information in the warrant, or excising the false information, probable cause would not exist or remain). Torres has not attempted to make this showing, and likely could not overcome his own factual averments in the complaint that support probable cause.
The unstated crux of Torres's theory is that he should not have been prosecuted—and is in fact entitled to money damages as a result—because he was a police officer, albeit off duty, that followed protocol in shooting at the moving vehicle. Regardless of the wisdom of the decision to shoot at a moving car, it is true that law enforcement officers are privileged under New Mexico law and immune from civil actions under federal law for their objectively reasonable use of force. See Graham v. Connor, 490 U.S. 386, 394 (1989); State v. Gonzales, 642 P.2d 210, 213 (N.M. Ct. App. 1982). Thus, had the occupants of the vehicle sued Torres, he would have an argument that his use of force was reasonable. Conceivably, Torres could have used his status as a police officer as a defense in the prosecution. At the same time, Torres does not identify any legal authority standing for the proposition that the probable cause analysis requires evidence negating a state-granted privilege or otherwise precludes prosecution where an off-duty officer admits to shooting at moving vehicle with multiple occupants.
In the probable-cause context, the clearly-established prong is assessed "practically," meaning the Court asks "whether there is arguable probable cause for [prosecution]." Kaufmann v. Higgs, 697 F.3d 1297, 1300 (10th Cir. 2012) (citation omitted). In other words, even if an officer is "mistaken about whether he possesses actual probable cause," so long as a reasonable officer could have believed probable exits, qualified immunity applies. A.M. ex rel. F.M. v. Holmes, 830 F.3d 1123, 1139-40 (10th Cir. 2016) (citations omitted) (emphasis added). In this case, the Court finds that even if Torres status as a law enforcement officer privileged his use of force, Torres's failure to adduce case law clearly prohibiting a finding probable cause under the circumstances entitles the Chief and Detectives to qualified immunity against Torres's claims of malicious prosecution.
Federal Rule of Civil Procedure 56(d) allows the Court to permit discovery before ruling on a motion for summary judgment "when facts are unavailable to the non-movant." Under the Rule, the party must "show[] by affidavit or declaration that, for specified reasons, [he] cannot present facts essential to justify [his] opposition[.]" Fed. R. Civ. P. 56(d). The declaration or affidavit must "explain[] why facts precluding summary judgment cannot be presented" and "identify[] the probable facts not available and what steps have been taken to obtain these facts." Comm. for the First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir. 1992) (citation omitted). The party seeking discovery "must also explain how additional time will enable him to rebut the movant's allegations of no genuine issue of material fact." Id. Qualified immunity heightens the Rule 56(d) inquiry. See Lewis v. City of Ft. Collins, 903 F.2d 752, 758 (10th Cir. 1990). The plaintiff's application "must demonstrate how discovery will enable [him] to rebut a defendant's showing of objective reasonableness" and establish "a connection between the information [sought] in discovery and the validity of the . . . qualified immunity defense." Id. at 759. "[R]elief should not be granted when the desired discovery would not meet the issue on which the moving party contends there is no genuine factual issue." Jones v. City of Denver, 854 F.2d 1206, 1211 (10th Cir. 1988).
The Court has already addressed Torres's Rule 56 affidavit in the context of Defendant G. George Zsoka and found it lacking. (Doc. 71). The same holds true here. Other than a generalized statement that discovery is necessary on "all factual matters raised in the Motions for Summary Judgment," (Doc. 48-3, Richard's Aff., ¶4), Torres asserts discovery is needed to determine (1) whether Torres heard the fight outside his yard or whether the fight was more generally outside where a crowd had gathered; (2) whether Torres took the gun from his home and began shooting or whether the driver of the truck shot first before Torres fired at the truck; (3) who, and/or whether anyone, from the City of Silver City directed Officer Serrano to secure Torres's weapon; (4) whether Officer Serrano was invited into the home; and (5) whether Torres's gun and ammunition were kept on the hood of Officer Serrano's police vehicle for the seven hours it took to obtain a warrant. (Id., ¶¶16-19).
Torres's Rule 56(d) application is insufficient. As a first impression, Torres seeks discovery on many questions to which he should know the answer. Even assuming the categories Torres identified had some nexus to the qualified-immunity analysis, Torres could have simply submitted his own affidavit to establish, for example, what exactly he heard as it relates to the fight and its location, who shot first, and that he did not consent to Officer Serrano entering his home. The Court is, therefore, at a loss why Torres could not present these "facts," why additional time is necessary, and how Torres has been diligent. Moreover, while Torres may not know who directed Officer Serrano to enter the residence, discovery is not necessary on that point because the Chief and Detectives concede they did so.
Many of the topics for which Torres seeks additional time for discovery are also resolved under the summary judgment standard itself. For example, the Court accepted as true Torres's contention that he heard the fight outside, not outside his yard, and that that Torres did not shoot first. What the affidavit does not explain, however, is why these facts make a difference to the qualified-immunity inquiry. In other words, Torres does not explain how the facts are material to his burden to establish a constitutional violation. As explained above, the fact that the car had occupants and Torres intentionally shot at it underscores probable cause for prosecution despite Torres's belief that he was following protocol. Ultimately, discovery at the summary judgment stage is unnecessary when the Court is already required to accept a plaintiff's supported version of events as true. Torres has not demonstrated that additional time and discovery are necessary for him to adequately respond to Chief Reynolds, and Detectives Murillo and Hobbs' motion for summary judgment.
Chief Reynolds, Detective Murillo, and Detective Hobbs are entitled to qualified immunity. Torres has not shown any violation of a clearly established constitutional right premised on Officer Serrano's entry into Torres's home and receipt of Torres's gun and magazines. Nor has Torres demonstrated that his prosecution for shooting at a vehicle was undertaken without probable cause. Because the Court cannot discern and Torres does not support any other theory of relief against the Chief and Detectives in Counts I and II, summary judgment is appropriate notwithstanding Torres's request for time to undertake discovery.
