JAMES O. BROWNING, District Judge.
In his Response, Mata asserts certain facts regarding the history of Mata's relationship with the Farmington Police Department ("FPD"). Although the Officer Defendants moved to strike these references, arguing that they were irrelevant and did not conform with the local rules on summary judgment procedure, the Court
Mata and several of his family members filed a civil-rights lawsuit on November 28, 2004 against the City of Farmington and several police officers, alleging that his civil rights were violated during a November 29, 2002 arrest in which he was pepper sprayed by an FPD officer; the matter was later settled for $75,000.00. See Mata v. Anderson, 685 F.Supp.2d 1223, 1236 (D.N.M.2010). Mata alleges that, after the case was filed, FPD officers routinely harassed and intimidated his family by following them around town, and by stopping in front of their home for no apparent reason and shining their spotlights on the windows. See Deposition of Juan Mata at 117:13-20, 119:8-11, 121:17-122:13, 127:15-23, 262:19-25, 277:1-21 (taken February 3 and 4, 2011), filed April 14, 2011 (Doc. 55-1). Mata publicly protested FPD Officer Mike Briseno; Mata stood in front of the police department, holding up a sign, and he signed a petition asking for an investigation of Briseno's conduct. See Mata Depo. at 19:17-21:6. Mata alleges that the FPD negatively reacted to a series of articles that the Daily Times in Farmington ran about his family's lawsuit and that, after the articles ran, the police intensified their actions of following him, spotlighting him, and driving by his house. See Mata Depo. at 363:22-364:10. Mata alleges that FPD police officers attempted to plant methamphetamine at his residence. See Mata Depo. at 63:8-64:17. Mata further alleges that, on April 2, 2007, a police officer stopped him and gave him a warning, allegedly because the officer could not See that his license plate lights were on, but a video of the incident shows that his license plate lights worked. See Mata Depo. at 130:6-132:18.
On June 16, 2008, at approximately 8:40 p.m., Ahlm, a FPD officer, and FPD Corporal Kee, who was traveling in Ahlm's squad car, stopped a dark blue sports utility vehicle ("SUV") on the street in front of Mata's residence at 408 Sycamore in Farmington. See, e.g., Complaint for Civil Rights Violations ¶¶ 31-32, at 7, filed April 15, 2010 (Doc. 1); Deposition of John Ahlm at 39:7-25, 41:16-21 (taken February 24, 2011), filed March 31, 2011 (Doc. 50-2); Dashcam Video from Officer Ahlm's Squad Car, FPD Unit 9853 at 20:38:36, filed March 31, 2011 (Doc. 53, Ex. C) ("Unit 9853 Dashcam"); Motion ¶ 1, at 7-8 (setting forth this fact); Plaintiffs' Response to City Defendants' Motion for Partial Summary Judgment No. I: Motion by Officers Rahn and Ahlm for Qualified Immunity on Excessive Force and Failure to Intervene Claims in Counts I and II, at 4, filed April 14, 2011 (Doc. 55) ("Response") (not controverting this fact). Ahlm advised the driver of the dark blue SUV, Valentin Araiza, that he had stopped him because the vehicle's license plate was covered by a piece of plastic, obscuring the license plate's numbers from view. See, e.g., Ahlm Depo. at 42:2-4; Unit 9853 Dashcam at 20:38:47-20:39:04; Motion ¶ 2, at 8 (setting forth this fact); Response at 4 (not controverting this fact).
As Ahlm was trying to get Araiza's license and registration, an individual who was watching the traffic stop started cursing at Ahlm and telling the officer to get off the property. See Ahlm Depo. at 42:22-43:17; Unit 9853 Dashcam at 20:39:52-20:42:32. Ahlm asked the individual to stay behind the gate to the property so that he could complete the paperwork for the traffic stop, but the individual continued to protest that the officer was on his property. See Unit 9853 Dashcam at 20:39:52-20:42:50. Within several minutes of pulling Araiza over, a number of individuals
Ahlm grew concerned about the number of individuals who were walking in and out of the traffic stop area—including some small children, about the level of incivility between one individual and the officers, and about his ability to exercise control over the traffic stop under these circumstances.
As Ahlm began to brief Rahn and Browning, one of the individuals in the crowd started to interrupt and protest anew that it was his property. See Unit 9844 Dashcam at 20:43:30-57. At that point, Kee advised Ahlm that he was going to have Araiza back up so that Mata could get out of his driveway; Mata then began to back out his gold SUV from the driveway. See Unit 9844 Dashcam at 20:43:56-20:44:14; Unit 10029 Dashcam at 20:43:56-20:44:14; Mata Videotape at 8:41:17-30. As Mata continued to back his vehicle out of the driveway, the individual who had earlier been challenging Ahlm continued to yell at the officers, insisting that they were on private property and referring to them with profanities.
Rahn, who was standing several feet to the side of Mata's front wheel, moved back a step as Kee yelled at Mata to "Stop." Unit 9853 Dashcam at 20:45:10-15; Unit 9844 Dashcam at 20:45:10-15. See Deposition of Tyler Rahn at 71:1-15 (taken February 23, 2011), filed March 31, 2011 (Doc. 50-3). Mata did not obey the order to stop, and continued to slowly move his vehicle forward several feet; as Mata moved his vehicle, Rahn reached back and removed his firearm from the holster, and trained it on Mata, ordering him to stop. See Unit 9853 Dashcam at 20:45:10-15; Unit 9844 Dashcam at 20:45:10-15. As Rahn removed his firearm from the holster, Ahlm was approximately fifteen feet away standing by his squad car, but he was facing Mata's SUV. See Ahlm Depo. at 78:7-16, 99:11-21, 100:1-8; Unit 9844 Dashcam at 20:45:09-13; Unit 9853 Dashcam at 20:45:13 (showing Ahlm facing the SUV as Rahn is reaching to pull his firearm out of its holster). Once Ahlm heard Kee and Rahn order Mata to stop again, Ahlm moved in behind Rahn.
Videotape of the incident does not clearly show where Rahn's firearm was trained; however, as Mata stopped his vehicle, the flashlight at the end of Rahn's firearm can be seen shining on the lower portion of the driver's side window. See Unit 9853 Dashcam at 20:45:12-19. Although the videotape does not clearly show where Rahn had his firearm trained during this incident, Mata's minor son, J.A.M., who was traveling in the front passenger seat of the vehicle at the time, may have been in the line of fire had Rahn fired his gun; J.A.M. testified that Rahn pointed the gun at his father, but that the gun was "sort of" pointing at him as well in that—"if it would have shot my dad, it would have shot me, too." Deposition of J.A.M. at 10:18-23, 11:10-18 (taken February 3, 2011), filed March 31, 2011 (Doc. 50-4). Mata's mother, who was standing alongside the passenger side of the vehicle and facing in towards the interior of the vehicle at the time when Rahn pulled out his firearm, testified that Rahn did not point his firearm at Mata's minor son, J.A.M.
Mata's minor daughter, G.M. was not a passenger in Mata's vehicle at the time of the incident; she was, however, standing
Approximately eleven seconds elapsed from the time that Rahn pulled out his firearm and ordered Mata to stop until the time that he re-holstered the firearm, and Kee moved in to extract Mata from the car.
On April 15, 2010, Mata filed his Complaint for Civil Rights Violations. See Doc.
On March 31, 2011, Rahn and Ahlm filed the City Defendants' Motion for Partial Summary Judgment No. I: Motion by Officers Rahn and Ahlm for Qualified Immunity on Excessive Force and Failure to Intervene Claims in Counts I and II. See Doc. 50. They argue that Rahn is entitled to qualified immunity on Count I and that Ahlm is entitled to qualified immunity on Count II. The Officer Defendants argue that the decision to display a firearm as a show of force at a traffic stop and the decision not to intervene in a fellow officer's show of force are the sort of discretionary decisions that qualified immunity is designed to shield. Rahn argues that he is entitled to qualified immunity on Mata's excessive force claims, because Mata fails to allege or show that his minor children were seized for purposes of a Fourth-Amendment excessive force claim, because Mata fails to show that Rahn's display of force was so unreasonable and excessive as to constitute a violation of the Fourth Amendment, and because the clearly established weight of legal authority does not hold that Rahn's show of force was unconstitutional. Ahlm argues that he is entitled to qualified immunity on Count II, because Mata has failed to show that Ahlm witnessed a constitutional violation, which is a necessary predicate to a failure to intervene claim, and because a videotape shows that Ahlm did not have a realistic opportunity to intervene. The Officer Defendants thus request that the Court dismiss the individual capacity claims against Rahn and Ahlm with prejudice.
On April 14, 2011, Mata filed the Plaintiffs' Response to City Defendants' Motion for Partial Summary Judgment No. I: Motion by Officers Rahn and Ahlm for Qualified Immunity on Excessive Force and Failure to Intervene Claims in Counts I and II. See Doc. 55. Mata argues that his minor children were seized by the FPD officers as that term is used under the Fourth Amendment. He argues that Rahn used excessive force. He also argues that Rahn's use of force was unconstitutional. Mata further argues that Ahlm is not entitled to qualified immunity and that he was obligated to intervene.
On April 22, 2011, the Officer Defendants filed the Motion to Strike Certain References in Plaintiffs' Response to City Defendants' Motion for Partial Summary Judgment No. I [Docket No. 55]. See Doc. 62. They argue that Mata devotes six pages of his response to various encounters he had with officers of the FPD
On April 28, 2011, Rahn and Ahlm filed their Reply to Response to City Defendants' Motion for Partial Summary Judgment No. I [Docket No. 50]. See Doc. 65. The Defendant Officers argue that Rahn did not subject J.A.M. and G.M. to a show of authority. They argue that Rahn's show of force was not unreasonable. They further argue that Mata misapprehends the case law on the failure-to-intervene claims.
At the hearing, the Court indicated that it was inclined to address the two motions in one Memorandum Opinion and Order, that it was inclined to not strike Mata's allegations, and that it was inclined to make a determination whether the allegations were material in the body of its opinion. Mata's counsel represented that he agreed with the Court's inclination to not strike the allegations and to determine whether they are material in its analysis. Mata's counsel represented that he did not want to file a written response to the Officer Defendants' motion to strike; instead, he wished to stand on the record.
At a pre-trial hearing on June 1, 2011, the Court informed Mata's counsel that Mata had not submitted Exhibits 1 or 3 in support of his Response, and that he had not submitted portions of his deposition. Mata's counsel informed the Court that he did not intend to file the exhibits or the excerpts of the deposition, and stated that the Court should rule on the record before it.
Rule 56(c) states that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). The movant bears the initial burden of "show[ing] that there is an absence of evidence to support the nonmoving party's case." Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991) (internal quotation marks omitted). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ("Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [record], together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.") (internal quotation marks omitted). Once the movant meets this burden, rule 56(e) requires the non-moving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993) ("However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.") (internal quotation marks omitted).
The party opposing a motion for summary judgment must "set forth specific
To survive summary judgment, genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505. A mere "scintilla" of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539. Rather, there must be sufficient evidence on which the fact-finder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill & Dauphin Improv. Co. v. Munson, 81 U.S. 442, 448, 14 Wall. 442, 20 L.Ed. 867 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539. "[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 (internal citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the non-moving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
When reviewing a motion for summary judgment, the court should keep in mind three principles. First, the court's role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505. Second, the court must resolve all reasonable inferences and doubts in favor of the nonmoving party, and construe all evidence in the light most favorable to the non-moving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). Third, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.
Qualified immunity recognizes the "need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority." Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity "protects federal and state officials from liability for discretionary functions, and from `the unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.'" Roybal v. City of Albuquerque, No. Civ. 08-0181, 2009 WL 1329834, at *10 (D.N.M. Apr. 28, 2009) (Browning, J.) (quoting Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)). Issues of qualified immunity are best resolved at the "earliest possible stage in litigation." Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)).
Qualified immunity shields government officials from liability where "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 129 S.Ct. at 815 (quoting Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. 2727). When a defendant asserts qualified immunity at summary judgment, the responsibility shifts to the plaintiff to meet a "heavy two-part burden." Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.2001). The plaintiff must demonstrate on the facts alleged: (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 unlawful activity. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.2009); Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir.2007). In assessing whether the right was clearly established, the court asks whether the right was sufficiently clear that a reasonable officer in the defendant's shoes would understand that what he or she did violated that right. See Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d at 1327. In Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part by Pearson v. Callahan, the Supreme Court of the United States held that the court must decide whether there was a constitutional violation first before it decides whether the law is clearly established. See 533 U.S. at 200-01, 121 S.Ct. 2151. Courts are no longer required to analyze the issues in that order. See Pearson v. Callahan, 129 S.Ct. at 818. "If, and only if, the plaintiff meets this two-part test does a defendant then bear the traditional burden of the movant for summary judgment—showing `that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law.'" Nelson v. McMullen, 207 F.3d 1202, 1206 (10th Cir.2000).
In determining whether the plaintiff has met his or her burden of establishing a constitutional violation that was clearly established, the court construes the facts in the light most favorable to the plaintiff as the non-moving party. See Scott v. Harris, 550 U.S. 372, 378-80, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Riggins v. Goodman, 572 F.3d at 1107 (noting that the United States Court of Appeals for the Tenth Circuit "accept[s] the facts and the plaintiff alleges them"). In Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir.2009), the Tenth Circuit explained:
Thomson v. Salt Lake County, 584 F.3d at 1312. "The Tenth Circuit, in Rhoads v. Miller, 352 Fed.Appx. 289 (10th Cir.2009), explained that the blatant contradictions of the record must be supported by more than other witnesses' testimony[.]" Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1249 (D.N.M.2010) (Browning, J.).
Rhoads v. Miller, 352 Fed.Appx. at 291-92 (internal citations and quotations omitted). See Lymon v. Aramark Corp., 728 F.Supp.2d at 1249-50 (quoting Rhoads v. Miller, 352 Fed.Appx. at 291-92). In a concurring opinion in Thomson v. Salt Lake County, Judge Holmes stated that the court must focus first on the legal question of qualified immunity and "determine whether plaintiff's factual allegations are sufficiently grounded in the record such that they may permissibly comprise the universe of facts that will serve as the foundation for answering the legal question before the court" before inquiring into whether there are genuine issues of material fact for resolution by the jury. 584 F.3d at 1326-27 (Holmes, J. concurring) (citing Goddard v. Urrea, 847 F.2d 765, 770 (11th Cir.1988) (Johnson, J., dissenting) (observing that, even if factual disputes exist, "these disputes are irrelevant to the qualified immunity analysis because that analysis assumes the validity of the plaintiffs' facts.")).
A clearly established right is generally defined as a right so thoroughly developed and consistently recognized under the law of the jurisdiction as to be "indisputable" and "unquestioned." Zweibon v. Mitchell, 720 F.2d 162, 172-173 (D.C.Cir.1983), cert. denied, 469 U.S. 880, 105 S.Ct. 244, 83 L.Ed.2d 182 (1984). "Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point,
The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified-immunity defense. In Pearson v. Callahan, the Supreme Court held that, "while the sequence set forth [in Saucier v. Katz] is often appropriate, it should no longer be regarded as mandatory." 129 S.Ct. at 818. Rather, lower courts "should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand." Id. The Supreme Court also noted that, while no longer mandatory, the protocol outlined in Saucier v. Katz would often be beneficial. See Pearson v. Callahan, 129 S.Ct. at 819. Once the plaintiff has established the inference that the defendant's conduct violated a clearly established constitutional right, a qualified immunity defense generally fails. See Cannon v. City and County of Denver, 998 F.2d 867, 870-71 (10th Cir.1993).
When an officer moves for qualified immunity on an excessive-force claim, "a plaintiff is required to show that the force used was impermissible (a constitutional violation) and that objectively reasonable officers could not have thought the force constitutionally permissible (violates clearly established law)." Cortez v. McCauley, 478 F.3d 1108, 1128 (10th Cir. 2007). Courts analyze Fourth-Amendment excessive force claims "under the `objective reasonableness' standard that governs other Fourth Amendment inquiries." Cordova v. Aragon, 569 F.3d 1183, 1188 (10th Cir.2009). See Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ("[A]ll claims that law enforcement officers have used excessive force ... in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard."). The Tenth Circuit has explained:
Weigel v. Broad, 544 F.3d 1143, 1151-52 (10th Cir.2008) (internal quotation marks and citations omitted).
The Court will deny the Officer Defendants' motion to strike. The Court will not strike the references in Mata's response, because this drastic remedy is generally disfavored, and the Court does not believe that it is necessary in this situation. The Court will grant in part and deny in part the Officer Defendants' motion for partial summary judgment. The Court finds that Rahn is entitled to qualified immunity on Mata's excessive force claim on G.M.'s behalf, but that he is not entitled to qualified immunity on Mata's excessive force claims on his own behalf and on J.A.M.'s behalf. Mata cannot show that Rahn's conduct violated G.M.'s constitutional rights, because G.M. was not seized. The Court will thus grant summary judgment for Rahn against Mata's excessive force claim on G.M.'s behalf on the grounds of qualified immunity. A reasonable jury could find, however, that Rahn's conduct violated Mata's and J.A.M.'s Fourth Amendment rights. The Court finds that these rights were clearly established at the time of the alleged violation. Because a reasonable jury could find that Rahn's conduct violated Mata's and J.A.M.'s Fourth-Amendment rights, Rahn is not entitled to judgment as a matter of law, and the Court will deny his request for summary judgment on Mata's excessive force claims on his behalf and on J.A.M.'s behalf on the grounds of qualified immunity. The Court finds that Ahlm is entitled to qualified immunity on Mata's failure to intervene claim on G.M.'s behalf, because Mata cannot show that Rahn violated G.M.'s constitutional rights and establishing a constitutional violation is a necessary predicate to any claim that an officer failed to intervene. The Court further finds that Ahlm is not entitled to qualified immunity on Mata's failure-to-intervene claims on his behalf and on J.A.M.'s behalf, because there is an issue of fact whether Ahlm had a realistic opportunity to intervene to prevent Rahn's alleged excessive use of force.
The Court will not strike the allegations in Mata's Response. The Officer Defendants argue that the Court has the inherent power to strike impertinent filings. They argue that Mata's references are irrelevant to the issues before the Court and that the Response does not conform to the local rules regarding summary judgment procedures.
The Court has recently proposed amendments to D.N.M.LR-Civ. 56.1(b) that will require the party responding to the motion for summary judgment to number any additional facts, and the party moving for summary judgment to specify whether the additional facts are disputed or not in its reply. A "redline" version of the proposed revisions to the Local Rules of Civil Procedure of the United States
Proposed revisions to D.N.M.LR-Civ. 56.1(b) (emphasis added). The Court's proposed rule 56.1(b) addresses additional proposed facts in a response to a motion for summary judgment. It appears that Mata was attempting to assert additional undisputed facts, and, as demonstrated by the Court's proposed rule 56.1(b), this format is not out of line with the Court's summary judgment procedures.
Rule 12(f) of the Federal Rules of Civil Procedure states:
Fed.R.Civ.P. 12(f). "The rule does not require that a movant show prejudice and the advisory committee notes do not contemplate such a requirement." Lane v. Page, 272 F.R.D. 581, 598 (D.N.M.2011) (Browning, J.). The Court has stated that it agrees with the United States Court of Appeals for the Ninth Circuit, which does not require movants to show prejudice, "that it should not add a requirement that the drafters did not place there, and that the Supreme Court and Congress did not ratify." Lane v. Page, 272 F.R.D. at 600.
This Court has noted:
Lane v. Page, 727 F.Supp.2d 1214, 1224 (D.N.M.2010) (Browning, J.).
The issues before the Court are whether Rahn's actions were objectively reasonable in light of the facts and circumstances "without regard to their underlying intent or motivation," Graham v. Connor, 490 U.S. at 397, 109 S.Ct. 1865, and whether Ahlm had a realistic opportunity to intervene, See Hall v. Burke, 12 Fed. Appx. 856, 861 (10th Cir.2001). Although Mata's allegations may not, in and of themselves, create a genuine issue of fact precluding summary judgment, the Court will consider the factual allegations as factual background, because it cannot say that the allegations have no possible bearing on the controversy before it. For example, Mata's allegations that his family had a contentious relationship with FPD and that his family felt persecuted relates to his damages for emotional distress.
The Officer Defendants argue that Rahn is entitled to qualified immunity on the claim that he used excessive force against Mata and his minor children when he stopped Mata's vehicle from leaving the scene of a traffic stop by drawing his firearm. They argue that Mata cannot present an excessive force claim on behalf of either of his children, because it is undisputed that they were never seized during the incident and that seizure is a prerequisite to an excessive force claim. The Officer Defendants argue that, while Mata
Mata argues that he and his children were seized within the meaning of the term under the Fourth Amendment. He argues that Rahn used excessive force, because his actions were not objectively reasonable in the circumstances.
The Court finds that Rahn is entitled to qualified immunity on Mata's excessive force claim on G.M.'s behalf, because G.M. was not seized. See Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1187 n. 9 (citations omitted). Mata thus cannot show that Rahn's conduct violated G.M.'s constitutional rights. See Thomas v. Durastanti, 607 F.3d at 663. The Court will therefore grant summary judgment for Rahn against Mata's excessive force claim on G.M.'s behalf on the grounds of qualified immunity. See Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.2001) ("If the plaintiff fails to satisfy either part of the two-part inquiry, the court must grant the defendant qualified immunity." (citation omitted)). The Court further finds that Rahn is not entitled to qualified immunity on Mata's excessive force claims on his own behalf and on J.A.M.'s behalf. A reasonable jury could find that Rahn's conduct violated Mata's and J.A.M.'s Fourth-Amendment rights. See Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1192-93. The Court finds that these rights were clearly established at the time of the alleged violation. See Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1196-97. Because a reasonable jury could find that Rahn's conduct violated Mata's and J.A.M.'s clearly established Fourth-Amendment rights, Rahn is not entitled to judgment as a matter of law, and the Court will deny his request for summary judgment on Mata's excessive force claims on his behalf and on J.A.M.'s behalf on the grounds of qualified immunity. See Nelson v. McMullen, 207 F.3d at 1206.
The Officer Defendants argue that G.M. was not seized, because it is undisputed that she was not in her father's vehicle at the time of the incident. They argue that Rahn is thus entitled to qualified immunity. Mata argues that G.M. was seized, because the police restricted her movements. He argues that the police told the entire family to stay on the property and not to interfere with the traffic stop of the driver in the SUV. He further argues that a reasonable child of G.M.'s age would have believed she was restrained from leaving the property.
"To state an excessive force claim `under the Fourth Amendment, plaintiffs must show both that a `seizure' occurred and that the seizure was `unreasonable.''" Thomas v. Durastanti, 607 F.3d at 663 (citing Childress v. City of Arapaho, 210 F.3d 1154, 1156 (10th Cir. 2000); Brower v. County of Inyo, 489 U.S. 593, 599, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989)). See Flores v. City of Palacios, 381 F.3d 391, 396 (5th Cir.2004) ("To bring a § 1983 excessive force claim under the Fourth Amendment, a plaintiff must first show that she was seized." (citing Graham
Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1187 n. 9 (citations omitted).
Rahn did not seize G.M. In the Complaint, Mata alleges excessive force claims only against Rahn. He does not allege that the other officers whom he sued used excessive force; he only contends that they failed to stop Rahn's use of excessive force. The videotape shows that Ahlm, not Rahn, told the occupants of Mata's residence to stay in their front yard and to not interfere with the traffic stop. See Unit 9853 Dashcam at 20:40:02-20. Rahn's only command issued to any of the gathered individuals was a command to stop using profanities. See Unit 9844 Dashcam at 20:44:11-19; Mata Videotape at 8:40:48-8:41:04. Moreover, the dashcam videos show that FPD officers made no effort to restrict the movements of G.M.'s grandmother, who was walking along the sidewalk in front of the Mata home as the incident unfolded, nor did they try to keep J.A.M. from leaving the sidewalk in front of his property and getting in his father's vehicle. See Unit 9853 Dashcam at 20:43:56-20:44:14; Unit 9844 Dashcam at 20:44:48. Mata's minor daughter, G.M. was not a passenger in Mata's vehicle at the time of the incident; Rahn did not train his firearm on her. See G.M. Depo. at 6:4-8, 10:16-21; G. Mata Depo. at 18:21-19:2. There is no evidence Rahn interacted with her in any way or engaged in show of authority to restrain her movements. Under these circumstances, Rahn did not intentionally terminate G.M.'s freedom of movement. See Brower v. County of Inyo, 489 U.S. at 596-97, 109 S.Ct. 1378. G.M. thus was not seized. The Court does not need to proceed to analyze the excessive force claim involving G.M., because G.M. cannot show that Rahn's conduct violated a constitutional right. See Saucier v. Katz, 533 U.S. at 201, 121 S.Ct. 2151 ("If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity."); McCormick v. City of Lawrence, 325 F.Supp.2d 1191, 1205 (D.Kan.2004) ("Because the court has determined that no constitutional violation occurred, there is no need to proceed to the second prong of the qualified immunity analysis."). The Court will thus grant summary judgment for Rahn on Mata's claims on G.M.'s behalf on the grounds of qualified immunity. See Medina v. Cram, 252 F.3d at 1128 ("If the plaintiff fails to satisfy either part of the two-part inquiry, the court must grant the defendant qualified immunity." (citation omitted)).
The Officer Defendants argue that, while J.A.M. was in the front passenger seat of his father's vehicle at the time of the incident, he was not seized, because it is undisputed that Rahn did not train his firearm on him, and because there is no evidence that Rahn applied any force to J.A.M. no matter how slight, or issued any commands to him to get him to submit to
Mata argues that J.A.M. was seized, because he was in the vehicle with his father who was "being held at gunpoint and being told to stop the car." Response at 16. He argues that J.A.M. undoubtedly believed he was not free to leave and that a reasonable seven-year-old would not believe he was free to leave the scene in the circumstances.
The Supreme Court has stated:
Brendlin v. California, 551 U.S. 249, 257, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). Mata, however, is not challenging the legality of the traffic stop on J.A.M.'s behalf. Mata thus must demonstrate that there was a governmental termination of J.A.M.'s freedom of movement through means intentionally applied. See Brower v. County of Inyo, 489 U.S. at 596-97, 109 S.Ct. 1378.
Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1187 n. 9 (citations omitted). As the Supreme Court has observed: "A police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise, there is at most an attempted seizure, so far as the Fourth Amendment is concerned." Brendlin v. California, 551 U.S. at 254, 127 S.Ct. 2400.
A reasonable child would not have felt free to leave in the circumstances. Videotape of the incident does not clearly show where Rahn's firearm was trained; however, as Mata stopped his vehicle, the flashlight at the end of Rahn's firearm can be seen shining on the lower portion of the driver's side window. See Unit 9853 Dashcam at 20:45:12-19. Although the videotape does not clearly show where Rahn had his firearm trained during this incident, Mata's minor son, J.A.M., who was traveling in the front passenger seat of the vehicle at the time, testified that Rahn pointed the gun at his father, but that the gun was "sort of" pointing at him as well in that—"if it would have shot my dad, it would have shot me, too." J.A.M. Depo. at 10:18-23, 11:10-18. Mata's mother, who was standing alongside the passenger side of the vehicle and facing in towards the interior of the vehicle at the time when Rahn pulled out his firearm, testified that Rahn did not point his firearm at Mata's minor son, J.A.M., See G. Mata Depo. at 23:21-24:9 (stating that the police pointed the gun only at Mata and that the officer did not point the gun at J.A.M.); however, there is evidence that J.A.M. may have been in the line of fire had Rahn fired his gun, See J.A.M. Depo. at 10:18-23, 11:10-18. J.A.M. did not get out of the car, even though there is evidence in the record that he was not restrained the "entire time the car was moving on the roadway." Ahlm Depo. at 76:1-24. Under these circumstances, J.A.M. "was `seized' within the meaning of the Fourth Amendment because
Kia P v. McIntyre, 235 F.3d at 762. The Court will thus proceed to analyze the excessive force claim on J.A.M.'s behalf.
The Officer Defendants argue that Rahn is entitled to qualified immunity on the excessive force claim involving Mata and on the excessive force claim involving J.A.M., because the undisputed facts show that it was not unreasonable for Rahn to display his firearm at a traffic stop involving a seatbelt violation. The Officer Defendants argue that it is clear from the dashcam videotapes that a police officer, possessing all the facts that Rahn possessed at the time of the incident, could reasonably conclude that Mata's actions warranted a show of force. Mata argues that Rahn used excessive force, because his actions were not objectively reasonable in the circumstances.
Courts analyze Fourth-Amendment excessive force claims "under the `objective reasonableness' standard that governs other Fourth Amendment inquiries." Cordova v. Aragon, 569 F.3d at 1188. See Graham v. Connor, 490 U.S. at 395, 109 S.Ct. 1865 ("[A]ll claims that law enforcement officers have used excessive force ... in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard."). "In analyzing the reasonableness of the alleged seizure, the key inquiry is `whether it would be clear to a reasonable officer [in the defendant's position] that his conduct was unlawful in the situation he confronted.'" Thomas v. Durastanti, 607 F.3d at 663-664 (citations omitted). "The `reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham v. Connor, 490 U.S. at 396, 109 S.Ct. 1865 (citation omitted). The Tenth Circuit has explained:
Weigel v. Broad, 544 F.3d at 1151-52 (internal quotation marks and citations omitted).
In Thomas v. Durastanti, the Tenth Circuit reversed a district court's decision denying an agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") qualified immunity from the plaintiff's claim that the agent violated his
607 F.3d at 659-61 (footnotes omitted). The Tenth Circuit found that, even assuming Thomas could meet the seizure element of his claim, he could not show "that it was unreasonable." 607 F.3d at 663. The Tenth Circuit found that there was "no room for genuine disagreement as to the speed of the Lincoln—it was moving deliberately out of the parking lot," 607 F.3d at 664-65 (citation omitted), but stated that, even if it accepted Thomas' argument that the videotape did not conclusively establish the speed of the Lincoln, it would still conclude that the agent's actions were objectively reasonable, See 607 F.3d at 665.
607 F.3d at 665-66. The Tenth Circuit stated that the sequence of events leading up to the time when the Lincoln struck the agent was "key in analyzing the reasonableness" of the agent's actions and stated that, assuming Thomas was wounded in the first volley of shots, it was "certainly reasonable for Agent Durastanti to believe that he was in danger at the `precise' time he fired the first two shots and seized Mr. Thomas." 607 F.3d at 666.
In Holland ex rel. Overdorff v. Harrington, the Tenth Circuit addressed whether the officers' actions of pointing firearms at bystanders violated the plaintiffs' constitutional rights. See 268 F.3d at 1193. The SWAT team arrived at a residence to conduct a search and arrest one individual pursuant to lawful search and arrest warrants. See 268 F.3d at 1192. They knew in advance that other persons, including children would be at the residence. See 268 F.3d at 1192. In conducting the search and effecting the seizure of the individual, the SWAT team held each of the plaintiffs at gunpoint, "initially forcing several of them to lie down on the ground for ten to fifteen minutes, and ultimately gathering all of them in the living room of the residence where they were held until all but [the individual for whom they had the arrest warrant] were released." 268 F.3d at 1192.
268 F.3d at 1192. The Tenth Circuit found that prior case law supported the district court's conclusion as to reasonableness. See 268 F.3d at 1192.
268 F.3d at 1192. The Tenth Circuit stated that the "display of weapons, and the pointing of firearms directly at persons inescapably involves the immediate threat of deadly force[;] [s]uch a show of force should be predicated on at least the perceived risk of injury or danger to the officers, based upon what the officers know at the time." 268 F.3d at 1192. "These are the very ingredients relevant to an excessive force inquiry." 268 F.3d at 1192-93 (quoting McDonald v. Haskins, 966 F.2d at 294).
268 F.3d at 1193. The Tenth Circuit concluded that, taken in the light most favorable to the plaintiffs, "the acts alleged concerning the pointing of firearms at the child bystanders found at the Heflin residence on April 16, 1996 show the officers' conduct violated a constitutional right." 268 F.3d at 1193. "While the SWAT Team's initial show of force may have been reasonable under the circumstances, continuing to hold the children directly at gunpoint after the officers had gained complete control of the situation outside the residence was not justified under the circumstances at that point." 268 F.3d at 1193. The Tenth Circuit stated that pointing a gun at the children rendered the "seizure of the children unreasonable, violating their Fourth Amendment rights." 268 F.3d at 1193.
In Mecham v. Frazier, 500 F.3d 1200 (10th Cir.2007), the Tenth Circuit reversed the district court's denial of the officers' motion for summary judgment on the grounds of qualified immunity. See 500 F.3d at 1202. Frazier pulled Mecham over
500 F.3d at 1203. The Tenth Circuit stated that, "viewed in light of the last two Graham factors quoted above—the suspect's resistance to arrest and safety concerns—the officers conduct in this case was reasonable." 500 F.3d at 1204. The Tenth Circuit stated:
500 F.3d at 1204-05 (footnote omitted). The Tenth Circuit stated:
500 F.3d at 1205.
In Fogarty v. Gallegos, 523 F.3d 1147 (10th Cir.2008), the Tenth Circuit found that "each of the Graham factors balances in Fogarty's favor" and thus held that the "level of force was unreasonable under the circumstances Fogarty recounts." 523 F.3d at 1161. The Tenth Circuit first considered the severity of the crime at issue. See 523 F.3d at 1160.
523 F.3d at 1160. The Tenth Circuit then considered whether Fogarty posed an immediate threat to the safety of officers or others, and found that there was no suggestion that he did. See 523 F.3d at 1160.
523 F.3d at 1160. The Tenth Circuit then found that Fogarty was neither actively resisting arrest nor attempting to evade arrest by flight. See 523 F.3d at 1160.
523 F.3d at 1160. The Tenth Circuit also noted that Fogarty presented evidence indicating that the police may have "contributed to the need to use force." 523 F.3d at 1161.
523 F.3d at 1161. The Tenth Circuit also noted that the amount of force that the police used against Fogarty was considerable, stating that Fogarty alleged that he was hit with a "rifle-fired projectile" and that four to five officers grabbed him, "thrust him to the ground, and forcibly escorted him through a cloud of tear gas," and that, when he had difficulty breathing, the officers used "an incredible amount of force" to put his wrist "into a painful hyperflexion position." 523 F.3d at 1161. The Tenth Circuit held that this level of force was unreasonable. See 523 F.3d at 1161.
In Baird v. Renbarger, 576 F.3d 340 (7th Cir.2009), the United States Court of Appeals for the Seventh Circuit addressed whether the defendant violated the plaintiffs' Fourth-Amendment rights through an unreasonable seizure done with the use of excessive force—"by using a submachine gun to round them up and detain them during the search." 576 F.3d at 344. The Seventh Circuit stated that "[t]he factors identified in Graham all tend to show that the use of the submachine gun was objectively unreasonable in the setting that [the defendant] faced." 576 F.3d at 344.
576 F.3d at 344. The Seventh Circuit stated that it had found "similar uses of force unreasonable in other cases." 576 F.3d at 345.
576 F.3d at 345. The Seventh Circuit distinguished cases in which they found comparable conduct to be reasonable, as
Taking the facts in the light most favorable to Mata, a reasonable jury could find that Rahn violated Mata's rights under the Fourth Amendment. The severity of the infraction that Mata committed— failure to wear his seatbelt—is low. Failure to wear a seatbelt is a "petty misdemeanor." Rahn Depo. at 43:12-13. See N.M.S.A.1978, §§ 66-8-122, 66-7-373. Mata's infraction is thus "among the least severe crimes contemplated by New Mexico law, and the amount of force [Rahn used] should have been reduced accordingly." Fogarty v. Gallegos, 523 F.3d at 1160 (citing Casey v. City of Fed. Heights, 509 F.3d 1278, 1281 (10th Cir.2007) (holding that, when a plaintiff is suspected of committing a minor misdemeanor, this fact "reduces the level of force that was reasonable [for an officer] to use")). This factor thus weighs in Mata's favor.
Viewing the evidence in the light most favorable to Mata, the Court finds that a reasonable jury could find that Mata did not pose an immediate threat to the safety of the officers or others. The Officer Defendants argue that it was reasonable for Rahn to conclude Mata could pose a danger to him, because he was only a few feet away from the front wheels of Mata's vehicle, because, although the vehicle was moving slowly, Rahn was in close proximity to Mata, who, the Defendants allege, had shown a dismissive attitude to traffic safety laws, and because Rahn had only seconds to judge whether Mata's vehicle might accelerate or turn into his path. The Defendants cite to Thomas v. Durastanti in support of their position. In Thomas v. Durastanti—a case which involved a Bivens action as opposed to a § 1983 claim and the use of deadly force as opposed to a show of force—the Tenth Circuit stated that the driver of the Lincoln was pulling away from a traffic stop and was, in the process, "advancing toward Agent Durastanti placing him in harm's way." 607 F.3d at 665. The Tenth Circuit stated that, "[e]ven given a dispute about whether the Lincoln was accelerating, it goes without saying that an officer in close quarters is no match for a two-ton vehicle." 607 F.3d at 665 (citation omitted). Rahn was standing on the driver's side of Mata's vehicle, several feet away from the vehicle, approximately parallel to the front bumper of the vehicle; as Mata's vehicle slowly moved forward Rahn walked closer to Mata's vehicle so that he was parallel with the front driver's side wheel of Mata's vehicle as he was pulling out his firearm. See Unit 9853 Dashcam at 20:45:11-12; Unit 9844 Dashcam at 20:45:06. Unlike the agent in Thomas v. Durastanti, who was in harm's way because he was in the path of the Lincoln as it proceeded, albeit slowly towards him, Rahn was not in the path's of Mata's vehicle—rather he was on the side of the vehicle's path. Although an officer is no match for a two-ton vehicle, Mata's vehicle was not proceeding towards Rahn, and was not placing Rahn in harm's way. None of the officers who conducted the stop were in the path of Mata's vehicle—they were all on the side of Mata's vehicle. See Unit 9844 Dashcam at 20:45:06-23. Mata's actions of slowly moving his vehicle forward thus did not pose an immediate threat to the officers' safety. Furthermore, there is no evidence that Mata's actions posed an immediate threat to any of the bystanders; Unit 9844 Dashcam shows that there were no bystanders in the path of Mata's vehicle. See Unit 9844 Dashcam at 20:45:06. Mata's actions thus did not pose an immediate threat to
Mata appeared to be pulling away from a traffic stop. Mata and Ahlm engaged in a heated exchange whether Mata was driving and whether his vehicle was moving. See Unit 9853 Dashcam at 20:44:50-20:45:09; Unit 9844 Dashcam at 20:44:50-20:45:09. Ahlm told Mata he was going to write him a ticket; he told Mata that he was not free leave, saying: "[D]on't leave, you're not free to leave, sir." Unit 9853 Dashcam at 20:45:05-10. As Ahlm had his back turned and was heading over to the squad car, Mata responded "Well, I need to go" and proceeded to slowly pull forward. Unit 9853 Dashcam at 20:45:08-15; Unit 9844 Dashcam at 20:45:08-11; Unit 10029 Dashcam at 20:45:08-11. The three police vehicles surrounding his residence confined Mata's ability to move his vehicle. See Map of Position of Vehicles at 1. Rahn, who was standing several feet to the side of Mata's front wheel, moved back a step as Kee could be heard yelling at Mata to "[s]top." Unit 9853 Dashcam at 20:45:10-15; Unit 9844 Dashcam at 20:45:10-15. See Rahn Depo. at 71:1-15. Mata did not obey the order to stop and continued to slowly move his vehicle forward several feet as Rahn reached back and removed his firearm from the holster, and trained it on Mata, ordering him to stop. See Unit 9853 Dashcam at 20:45:10-15; Unit 9844 Dashcam at 20:45:10-15. Although Mata was not attempting to resist or evade arrest, there is evidence that he appeared to be pulling away from a traffic stop. This factor thus weighs in Rahn's favor.
The "first two Graham factors weigh in [Mata's favor] and so weigh in favor of a trial in this matter." Herrera v. Bernalillo County Bd. of County Comm'rs, 361 Fed.Appx. 924, 928 (10th Cir.2010). The Court cannot say, on the record before it as it currently exists, "that no reasonable jury could find that [Rahn's] use of force was excessive." Herrera v. Bernalillo County Bd. of County Comm'rs, 361 Fed. Appx. at 928.
Taking the facts in the light most favorable to the non-moving party, a reasonable jury could find that Rahn violated J.A.M.'s rights under the Fourth Amendment. The Court cannot say, on the record before it, that no reasonable jury could find Rahn's use of force against Mata excessive. Furthermore, there is no evidence that J.A.M. posed "a perceived risk of injury or danger to the officers or others." Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1192. J.A.M. was not a suspect; he was not attempting to evade the officers; nor was he posing any threat. See Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1193 (citing McDonald v. Haskins, 966 F.2d at 295). Although Rahn did not train his firearm on J.A.M., taking the facts in the light most favorable to Mata, J.A.M. was in the line of fire, and "[p]ointing a firearm ... at a child calls for even greater sensitivity to what may be justified or what may be excessive under all the circumstances." 268 F.3d at 1193. Taking the facts in the light most favorable to Mata, J.A.M. was in the line of fire for approximately eleven seconds. See Unit 9853 Dashcam at 20:45:12-22. The Court cannot say that no reasonable jury could find that Rahn's use of force in these circumstances was excessive. See Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1192-93.
"The relevant, dispositive inquiry in determining whether a right is
In 2008, the law was clearly established that the display of firearms "and the pointing of firearms directly at persons... should be predicated on at least a perceived risk of injury or danger to the officers or others, based upon what the officers know at that time." Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1192. In Holland ex rel. Overdorff v. Harrington, the Tenth Circuit in 2001 stated that it could "find no substantial grounds for a reasonable officer to conclude that there was legitimate justification" to train their weapons on the plaintiffs when they had no "reason to believe that the [plaintiffs] posed any kind of threat," or to "train[ ] a firearm directly upon a four-year-old child at any time during the operation." 268 F.3d at 1197. The Tenth Circuit stated that the "violation [did] not reflect a reasonable mistake of law for which [the officer] should enjoy the benefits of qualified immunity," and thus found that the district court properly denied summary judgment in favor of the officer on his assertion of qualified immunity. See 268 F.3d at 1197. As in Holland ex rel. Overdorff v. Harrington, where the Tenth Circuit found that there were no substantial grounds for the officers to conclude there was a legitimate justification for training their weapons on the plaintiffs when they had no reason to believe the plaintiffs posed a threat, there are no substantial grounds for Rahn to conclude there was a legitimate justification for training his weapon on Mata, with J.A.M. in the line of fire, because—taking the facts in the light most favorable to Mata— the facts do not demonstrate that Rahn had reason to believe that Mata or J.A.M. posed an immediate threat to the officers' safety or the safety of others. Rahn's alleged violation of Mata's and J.A.M.'s constitutional rights thus does not reflect a reasonable mistake of law for which he should enjoy the benefits of qualified immunity. See Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1197.
The Defendants rely on Thomas v. Durastanti for the proposition that it is "clear that the established weight of legal authority for this Circuit did not hold in 2008, and it does not hold now, `that an officer may not draw his weapon when there is a rapidly developing situation with a traffic stop and the officer's concerns have not been obviated." Motion at 21 (citing Thomas v. Durastanti, 607 F.3d at 669). In Thomas v. Durastanti, the Tenth Circuit noted that the district court had cited
607 F.3d at 669. Thomas v. Durastanti was decided in 2010 whereas this incident occurred in 2008. Even had the Tenth Circuit decided Thomas v. Durastanti before this incident, unlike Thomas v. Durastanti, where none of the risks of concerns Durastanti identified—his concern that his fellow agent was in distress and the risk of the two-ton vehicle proceeding directly towards him—were obviated when he drew his weapon, neither Rahn nor any of the other officers or bystanders were in the path of Mata's vehicle. There is thus no evidence that Rahn could reasonably have had concerns about his or others' safety when he drew his weapon. The Court therefore believes that Thomas v. Durastanti is not factually analogous.
Because a reasonable jury could find that Rahn's conduct violated Mata's and J.A.M.'s constitutional rights, and because Mata's and J.A.M.'s constitutional rights were clearly established at the time of the alleged violation, Mata has satisfied his burden. See Nelson v. McMullen, 207 F.3d at 1206. The Court cannot properly hold, at this stage in the case, that, as a matter of law, Rahn is entitled to qualified immunity, because a reasonable jury could find that Rahn's conduct violated Mata's and J.A.M.'s constitutional rights. See Herrera v. Bernalillo County Bd. of County Comm'rs, 361 Fed.Appx. at 928. The Court will thus deny Rahn's request for summary judgment in his favor against Mata's excessive force claim and Mata's excessive force claim on J.A.M.'s behalf on the grounds of qualified immunity.
The Officer Defendants argue that Ahlm is entitled to qualified immunity on the claim that he failed to intervene and prevent Rahn from violating Mata's constitutional rights. They argue that, if Mata cannot show that Rahn used excessive force in stopping Mata's vehicle, he cannot establish a necessary predicate act for his failure-to-intervene claim. They argue that, additionally, even if Mata can establish that Rahn used excessive force, videotape evidence shows that Ahlm was not in a position to prevent Rahn from drawing his firearm on Mata. They argue that liability attaches only when an officer has a
Mata argues that Ahlm is not entitled to qualified immunity. He argues that Rahn's actions were unreasonable and excessive, and that Ahlm had a duty to stop his fellow officer and had the opportunity to do so.
Ahlm is entitled to qualified immunity on Mata's failure to intervene claim on G.M.'s behalf. Establishing a constitutional violation is a necessary predicate to any claim that an officer failed to intervene. See Hall v. Burke, 12 Fed.Appx. at 861 ("An officer who fails to intercede is liable ... where that officer observes or has reason to know: (1) that excessive force is being used, (2) that a citizen has been unjustifiably arrested, or (3) that any constitutional violation has been committed by a law enforcement official[.]"). Mata cannot show that Rahn violated G.M.'s constitutional rights. Ahlm is thus entitled to qualified immunity on Mata's failure-to-intervene claim brought on G.M.'s behalf.
"An officer who fails to perform a duty may be liable under § 1983 if that failure causes deprivation of protected rights." Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1433 (10th Cir.1984) (citing McClelland v. Facteau, 610 F.2d 693 at 696 (10th Cir.1979)), judgement vacated on other grounds by City of Lawton, Okla. v. Lusby, 474 U.S. 805, 106 S.Ct. 40, 88 L.Ed.2d 33 (1985). An officer may be liable if he had the opportunity to prevent or stop a constitutional violation, but failed to do so. See Lusby v. T.G. & Y. Stores, Inc., 749 F.2d at 1433. The Tenth Circuit has stated:
Hall v. Burke, 12 Fed.Appx. at 861 (citation omitted). In Mick v. Brewer, 76 F.3d 1127 (10th Cir.1996), the Tenth Circuit found that the district court erroneously awarded the defendant qualified immunity at the summary judgment stage, because there was a genuine issue of material fact whether the defendant "observed the interaction and failed to intervene to prevent [the other defendant] from using allegedly excessive force." 76 F.3d at 1137. In Fogarty v. Gallegos, 523 F.3d 1147 (10th Cir.2008), the Tenth Circuit found that the district court was correct to deny summary judgment on the grounds there was an issue of fact whether the officer could be liable for failing to intervene in the alleged excessive use of force when the plaintiff described the arrest as lasting between three and five minutes, and when the district court found that the officer was present for the arrest, which, together, supported a "conclusion that [the officer] had the opportunity to prevent [the plaintiff's] injuries." 523 F.3d at 1164 (citing O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir.1988) (holding that defendant had no duty to intervene when "three blows were struck in such rapid succession that [the
839 F.2d at 11-12.
There is a genuine issue of material fact whether Ahlm had a realistic opportunity to intervene. As Rahn removed his firearm from the holster, Ahlm was approximately 15 feet away standing by his squad car, but he was facing Mata's SUV. See Ahlm Depo. at 78:7-16, 99:11-21, 100:1-8; Unit 9844 Dashcam at 20:45:09-13; Unit 9853 Dashcam at 20:45:13 (showing Ahlm facing the SUV as Rahn is reaching to pull his firearm out of its holster). Once Ahlm heard Kee and Rahn order Mata to stop again, Ahlm moved in behind Rahn. See Ahlm Depo. at 99:17-21; Unit 9853 Dashcam at 20:45:10-18. As Ahlm moved in behind Rahn, Kee crossed in front of Ahlm's path to position himself to one side of Rahn. See Ahlm Depo. at 100:9-15; Unit 9853 Dashcam at 20:45:12-15. Approximately eleven seconds elapsed from the time that Rahn pulled out his firearm and ordered Mata to stop until the time that he re-holstered the firearm as Kee moved in to extract Mata from the car. See Unit 9853 Dashcam at 20:45:12-22. As in Fogarty v. Gallegos, where the Tenth Circuit affirmed the district court's denial of summary judgment when the alleged violation of constitutional rights lasted several minutes and the officer was present for the alleged violation, taking the facts in the light most favorable to Mata, Ahlm saw the alleged constitutional violation, was in close proximity to the alleged constitutional violation, and the alleged constitutional violation lasted for approximately eleven seconds. Although eleven seconds is a not nearly as long a period as the three to five minutes in Fogarty v. Gallegos, it may be a longer period of time than the time in O'Neill v. Krzeminski it took to strike three blows in rapid succession—which may take only a second or two. The Court believes that, given Ahlm's presence in close proximity to Rahn, his view of Rahn pulling out his firearm, and the length of the alleged constitutional violation, a reasonable jury could find that Ahlm had a realistic opportunity to intervene, or was capable of preventing or ending Rahn's alleged use of excessive force. See Hall v. Burke, 12
Motion ¶¶ 3-5, at 8 (internal citations omitted). Mata disputes these asserted facts, stating that "the video evidence of the incident shows that the individual cursing at the police was not the Plaintiff, and shows the Plaintiff beside his automobile with a video camera waiting for the officers to remove the suspect's vehicle from in front of his driveway so he could leave." Response ¶ 2, at 4-5 (citing Exhibit 1(9853) 20:39:38-43:37). Mata cites to the dashcam video from unit 9853 as his Exhibit 1; throughout his response, he also cites to the dashcam videos from units 9844 and 10029 as Exhibit 1. Mata does not, however, place Exhibit 1 in the record. It appears, however, that the dashcam videos to which Mata cites as his Exhibit 1 are the same as the dashcam videos that the Officer Defendants attached to their motion for summary judgment as exhibits C, D, and F. Unit 9853 Dashcam depicts an individual cussing at the officers and telling them to get off the property. See Unit 9853 Dashcam at 20:39:52-20:42:32. In their asserted undisputed facts, the Officer Defendants did not assert that this individual was Mata. Mata has not directed the Court's attention to evidence controverting the Officer Defendants' asserted facts. D.N.M.LR-Civ. 56.1(b) states:
The memorandum in support of the motion must initially set out a concise statement of all material facts as to which movant contends no genuine issue exists. The facts must be numbered and must refer with particularity to those portions of the record upon which movant relies.
A memorandum in opposition to the motion must contain a concise statement of the material facts as to which the party contends a genuine issue does exist. Each fact in dispute must be numbered, must refer with particularity to those portions of the record upon which the opposing party relies, and must state the number of the movant's fact that is disputed. All material facts set forth in the statement of the movant will be deemed admitted unless specifically controverted.
D.N.M.LR-Civ. 56.1(b). Because Mata has not directed the Court's attention to evidence controverting the Officer Defendants' asserted facts, the Court will deem the Officer Defendants' asserted facts admitted.
Response ¶ 3, at 5. Mata did not include the portion of his deposition to which he cites. Although Mata also did not place Exhibit 1 in the record, Unit 9853 Dashcam shows that one individual spoke to the officers in a loud manner, using profanities, and that the officers warned the individual against behaving in that manner towards them. See Unit 9853 Dashcam at 20:40:39-20:44:07. Because the Court must construe the evidence in the light most favorable to the non-moving party, the Court will accept as true Mata's version of the Officer Defendants' asserted fact—that the acrimonious dialogue was between the officers and a single individual. See Hunt v. Cromartie, 526 U.S. 541, 551, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999) (stating that the court must resolve all reasonable inferences and doubts in favor of the non-moving party, and construe all evidence in the light most favorable to the non-moving party).
Response ¶ 4, at 5-6 (citing Exhibit 3 at 0:55 min; Deposition of Juan Mata at 202 (taken February 3 and 4, 2011), filed April 14, 2011 (Doc. 55-1)). Although Mata placed portions of his deposition in the record, he did not include the portion of his deposition to which he cites to controvert the Officer Defendants' asserted fact. Mata also did not place Exhibit 3—a video recording taken by his video camera—in the record. It appears, however, that the Officer Defendants' Exhibit G—a videotape that Fransisco Mata shot—is the same as Mata's Exhibit 3. Although Mata's videotape shows a brief shot of Rahn with his nightstick out before putting the nightstick away, the video does not depict Rahn yelling—or even speaking—or interacting with any of the individuals watching the traffic stop. See Videotape shot by Fransisco Mata at 8:39:55-8:40:10, filed March 31, 2011 (Doc. 54, Ex. G) ("Mata Videotape"). This videotape does not controvert the Officer Defendants' assertion that Rahn and Browning arrived on the scene approximately five minutes after Ahlm pulled over Araiza. Because Mata has not directed the Court to evidence in the record which controverts the Officer Defendants' asserted facts, the Court will deem the Officer Defendants' asserted facts admitted. See D.N.M.LR-Civ. 56.1(b).
Motion ¶¶ 8-10, at 9 (internal citations omitted). Mata states that he does not "dispute that an individual was acting in a loud and unruly manner as alleged in Defendants' Facts ¶¶ 8-10, and further states that the videos of the incident show that the Plaintiff himself acted in a civil manner prior to the time that Defendant Rahn assaulted him with a firearm," and that he does "not dispute the remaining allegations in Defendants' Facts ¶ 8-10." Response ¶¶ 5-6, at 6 (citing Exhibit 1 (9853) at 20:39:38-43:37). Although Mata did not submit Exhibit 1, Unit 9853 Dashcam depicts and individual yelling at the officers and referring to them with profanities. See Unit 9844 Dashcam at 20:44:09-39. The Officer Defendants do not assert that the unruly individual was Mata, and Mata does not direct the Court's attention to evidence in the record which controverts the Officer Defendants' asserted facts. The Court will thus deem the Officer Defendants' asserted facts admitted. See D.N.M.LR-Civ. 56.1(b).
Motion ¶¶ 11-16, at 9-10 (internal citations omitted). Mata
Response ¶ 7, at 6. Although Mata did not submit Exhibit 1, Unit 9853 Dashcam shows that Kee called out "put your seat belt on" twice, but Mata continued to slowly move the vehicle forward, that when Kee and Ahlm ordered Mata to stop his vehicle the vehicle stopped moving forward and Mata yelled "What? I'm gonna put it on, man. What the hell?" and that after Ahlm stated that he was going to give Mata a ticket and told him that he was not free to leave, Mata responded "Well, I need to go," and the car started slowly moving forward. Unit 9853 Dashcam at 20:44:40-57. This evidence thus does not controvert the Officer Defendants' asserted facts; instead, it supports the Officer Defendants' asserted facts. "While a court considering a summary judgment motion based upon qualified immunity `usually' must `adopt[ ] ... the plaintiff's version of the facts,' that is not true to the extent that there is clear contrary video evidence of the incident at issue." Thomas v. Durastanti, 607 F.3d 655, 659 (10th Cir.2010) (quoting Scott v. Harris, 550 U.S. 372, 378-80, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so 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.") (other citations omitted)). Mata did not submit the portions of Mata's deposition on which he relies, and, even if he did, the dashcam videos clearly show the events as the Officer Defendants depict them. Although Mata also relies on the Mata Videotape to create an issue of fact, and although the Mata Videotape depicts a person stating "he ain't going nowhere, he's gonna park on the curb," Mata Videotape at 8:41:18-23, this comment was made when the officers were telling Mata to put on his seat belt, before Ahlm told Mata he was going to write him a ticket. This evidence thus does not controvert the Officer Defendants' assertions that Mata stated "Well, I have to go" and proceeded to slowly pull forward.
Response ¶ 8, at 7 (citing Exhibit 1(9853) at 20:44:44-20:45:12; Mata Deposition 236-238). Unit 9853 Dashcam depicts Mata uttering profanities, and arguing with the officers regarding whether he was driving. Mata did not place the portion of his deposition to which he cites in the record. Mata has thus not directed the Court's attention to evidence in the record controverting the Officer Defendants' asserted facts.
Mata further disputes the allegations in paragraphs 15 and 16 that he "attempted to leave after being told that he was not free to leave." Response ¶ 9, at 7. Mata states:
Response ¶ 9, at 7. The bystander's statement that Mata was pulling to the curb was made before Ahlm told Mata that he was going to give him a ticket and that he was not free to leave, and before Mata said "well, I have to go," and proceeded to slowly pull forward. This evidence thus does not controvert the Officer Defendants' asserted facts. Unit 9853 Dashcam clearly captures Ahlm's statement to Mata that he was not free to leave. Mata has not included the portions of Mata's deposition to which he cites. There is thus no evidence in the record that Mata did not understand what Ahlm told him or that he was merely pulling to the curb. Furthermore, Unit 9853 Dashcam shows that Mata stated "well, I have to go" immediately before slowly pulling forward. Mata thus has not directed the Court's attention to evidence in the record controverting the Officer Defendants' assertions. The Court will thus deem the Officer Defendants' assertions admitted. See D.N.M.LR-Civ. 56.1(b).
Motion ¶¶ 17-20, at 10-11 (internal citations omitted).
Mata disputes the allegations in paragraphs 17 to 20 in the Officer Defendants' Motion, stating that the police officers were acting in an unreasonable and unprofessional manner. See Response ¶ 10, at 7. He states that his car was moving very slowly after Ahlm turned and walked a few feet, giving no indication he was attempting to flee or speeding up, that a bystander told the police Mata was going to park at the curb, that he testified he was pulling to the curb to fasten his seat belt to avoid a parking ticket, that there were police cars blocking the road to the West—where his car was headed—which would make it difficult or impossible to escape in that direction. See Response ¶ 10, at 7-8 (citing Exhibit 1 at 20:45:10-16; Exhibit 3, 2:11; Mata Depo. at 196, 200, 229-231. The bystander's comment was made before Ahlm told Mata that he was going to give him a ticket and that he was not free to leave. Although Unit 9853 Dashcam shows that Mata's vehicle was moving slowly, the videotape shows that Rahn ordered Mata to stop, and that Mata did not obey the order and continued to slowly move the vehicle forward. This evidence thus does not controvert the Officer Defendants' assertions. Mata did not submit the portions of his deposition to which he cites. Mata thus has not directed the Court's attention to evidence in the record which controverts the Officer Defendants' asserted facts.
Mata also disputes the allegations in paragraphs 18 and 19 in the Officer Defendants' Motion "where the Defendants may intend to imply that ... Rahn was justified in pointing his firearm at the Plaintiff and his son because the Plaintiff was attempting to flee," stating that he was blocked by police cars and his car was moving slowly. Response ¶ 11, at 8 (citing Mata Depo. at 196, 200; Rahn Depo. at 43). Mata does not include the portion of his deposition to which he cites. In Rahn's deposition, Rahn testified that failure to wear a seat belt is a petty misdemeanor and that it is not, based on his training and experience, an arrestable offense. See Deposition of Tyler Rahn at 43:12-17 (taken February 23, 2011), filed April 14, 2011 (Doc. 55-3). This testimony does not controvert the Officer Defendants' assertions that Rahn ordered Mata to stop the vehicle, that Mata proceeded to move the vehicle forward, and that Mata then removed his firearm from the holster. There is, however, some evidence in the record that police cars confined the area in which Mata could more his car—Unit 9853 was directly behind Mata's driveway, Unit 10029 was West of Mata's driveway on one side of the street, and Unit 9844 was West of Mata's driveway, on the opposite side of the street from Unit 10029. When Mata pulled his vehicle out of the driveway, he turned the vehicle West and proceeded to slowly move the vehicle West, towards Units 9844 and 10029. See Map of Position of Cars, filed April 14, 2011 (Doc. 55-2). The Defendants concede that Mata was maneuvering his vehicle in a confined space. See Reply to Response to City Defendants' Motion for Partial Summary Judgement No. I [Docket No. 50], filed April 28, 2011 (Doc. 65). Taking the evidence in the light most favorable to the non-moving party, the Court will accept as true Mata's assertion that he was maneuvering his vehicle in a space confined by the three police vehicles.
Mata also disputes the alleged facts in paragraph 19 of the Officer Defendants' Motion "where the Defendants may claim that Defendant Ahlm was not in a position to protect the Plaintiff from Defendant Rahn's armed assault or to stop the Defendant from pulling his pistol," stating that the dash cam recordings show that Ahlm moved to the side and behind Rahn while he was pointing his pistol at Mata, and that Ahlm made no effort to restrain Rahn, that Ahlm was the first on the scene and the officer who decided to arrest Mata, that Ahlm was in charge of the scene and responsible for the conduct of the officers, and that the officers were agitated out of proportion to the situation, and that Ahlm had a duty to calm the rest of the officers and make sure no one was endangered by an overreaction. See Response ¶ 12, at 9 (citing Exhibit 1 at 20:45:15, 20:38:20, Exhibit 3 at:55; Mata Depo. at 202, Rahn Depo. at 43). Unit 9853 Dashcam shows that Ahlm's back was not turned when Rahn removed his firearm from the holster. See Unit 9853 Dashcam 20:45:13. Because the Court must construe the evidence in the light most favorable to the non-moving party, see Hunt v. Cromartie, 526 U.S. at 551, 119 S.Ct. 1545, the Court will accept as true Mata's version of the fact that the dash cam recordings show that Ahlm saw Rahn pull out his firearm and moved to the side and behind Rahn while Rahn was pointing his firearm at Mata, and made no effort to restrain Rahn. Mata's assertions that Ahlm was in charge and responsible for the conduct of the officers is a legal argument. The Court thus will not accept these assertions as true factual statements, but will address them in its legal analysis.
Motion ¶¶ 23-25, at 11 (internal citations omitted). Mata disputes the allegations in paragraphs 23 to 25 of the Officer Defendants' Motion
Response ¶ 13, at 9-10 (citing Exhibit 1; Ex. 3; Ahlm Depo. at 74-76). In his deposition, Ahlm testified that J.A.M. was not restrained in the front seat. See Deposition of John Ahlm at 76:1-24 (taken February 24, 2011), filed April 14, 2011 (Doc. 55-4). The dashcam videos show Rahn pointing the firearm into the low portion of the driver's side window. See Unit 9853 Dashcam at 20:45:15. Taking facts in light most favorable to Mata, See Hunt v. Cromartie, 526 U.S. at 551, 119 S.Ct. 1545, the Court will accept as true Mata's version of the facts that J.A.M., who was in front seat, may have been in line of fire had Rahn fired his gun.
Motion ¶¶ 26-28, at 12 (internal citations omitted).
Response ¶ 14, at 10 (citing Exhibit 1(Unit 9844)). Unit 9844 Dashcam shows a fence with a hedge growing on it. See Unit 9844 Dashcam at 20:45:52. Mata has not directed the Court's attention to evidence that controverts the Officer Defendants' asserted facts. The Court will thus deem the Officer Defendants' asserted facts admitted. See D.N.M.LR-Civ. 56.1(b).
