Filed: May 18, 2020
Latest Update: May 18, 2020
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT May 18, 2020 _ Christopher M. Wolpert Clerk of Court HERMELINDA ALVARADO- ESCOBEDO, as personal representative of the estate of Edgar Camacho-Alvarado, deceased, and as natural mother of A.M., and I.M., minors, Plaintiff - Appellant, v. No. 19-2048 (D.C. Nos. 1:16-CV-01235-NF-MLC, UNITED STATES OF AMERICA; PAUL 1:18-CV-00169-NF-MLC) HERNANDEZ, individually and in his (D. N.M.) official capacit
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT May 18, 2020 _ Christopher M. Wolpert Clerk of Court HERMELINDA ALVARADO- ESCOBEDO, as personal representative of the estate of Edgar Camacho-Alvarado, deceased, and as natural mother of A.M., and I.M., minors, Plaintiff - Appellant, v. No. 19-2048 (D.C. Nos. 1:16-CV-01235-NF-MLC, UNITED STATES OF AMERICA; PAUL 1:18-CV-00169-NF-MLC) HERNANDEZ, individually and in his (D. N.M.) official capacity..
More
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 18, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
HERMELINDA ALVARADO-
ESCOBEDO, as personal representative of
the estate of Edgar Camacho-Alvarado,
deceased, and as natural mother of A.M.,
and I.M., minors,
Plaintiff - Appellant,
v. No. 19-2048
(D.C. Nos. 1:16-CV-01235-NF-MLC,
UNITED STATES OF AMERICA; PAUL 1:18-CV-00169-NF-MLC)
HERNANDEZ, individually and in his (D. N.M.)
official capacity as Deputy United States
Marshal,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HOLMES, PHILLIPS, and CARSON, Circuit Judges.
_________________________________
Plaintiffs are the mother and siblings of Edgar Camacho-Alvarado (Camacho).
On February 20, 2016, Camacho was shot and killed by defendant Paul Hernandez, a
Deputy United States Marshal. Plaintiff Hermelinda Alvarado-Escobedo, Camacho’s
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
mother and personal representative, brought a wrongful death claim against the
United States under the Federal Tort Claims Act (FTCA) and an action against
Hernandez under Bivens v. Six Unknown Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971). In a separate action, plaintiffs asserted claims for loss of
consortium under the FTCA and New Mexico state law. The district court
consolidated the cases and granted summary judgment to the defendants on all
claims. Plaintiffs appeal. We affirm.
BACKGROUND
We recount the facts in the light most favorable to the plaintiffs, the
non-moving parties, in our summary-judgment review. See Davis v. Clifford,
825 F.3d 1131, 1133 (10th Cir. 2016).
The Investigation
On February 19 and 20, 2016, the Southwest Investigative Fugitive Task Force
(SWIFT) was attempting to apprehend a fugitive named George Bond in
Albuquerque, New Mexico. Hernandez was the lead investigator on the case. Law
enforcement officials believed that Bond, who was wanted for murder, was armed
and dangerous and was working with several criminal associates.
At approximately 12:30 a.m. on February 20, investigative techniques led
SWIFT to believe that Bond was located at a trailer park in Albuquerque. Hernandez
and his team initially conducted surveillance from outside the trailer park. Then,
later that morning, Hernandez entered the trailer park. He proceeded on foot and in
2
plain clothes, seeking to maintain a covert presence while gathering intelligence
concerning Bond’s potential location.
Hernandez Encounters Camacho; The Shooting
At approximately 3:30 a.m. Hernandez was near the southern end of the trailer
park when he observed Camacho standing near the middle of the trailer park.
Although Hernandez could not see Camacho’s face, he could tell from what he knew
of Bond’s description that he was not Bond.
Camacho stood for a moment, looking around to the north and to the south.
Hernandez was concerned he might be engaged in counter-surveillance. Hernandez
began to walk away, unsure if Camacho had seen him. When he turned around, he
observed Camacho walking directly toward him.
As Camacho approached him, Hernandez attempted to make small talk.
Camacho responded with only curt responses that indicated to Hernandez that he did
not want to talk to him. Camacho walked directly up to Hernandez and stopped
approximately six to eight feet in front of him.
According to Hernandez, Camacho stared at him for a few seconds without
saying anything. Then he took out a cell phone and appeared to be making a call.
While still on the phone, Camacho asked Hernandez, “[W]hat are you doing here?”
Aplt. App., Vol. VI at 1702 (internal quotation marks omitted). Hernandez replied
“with something like ‘[W]hat the hell does it matter to you.’” Id.
3
The only living witness to the shooting, Hernandez was deposed, and, based on
his deposition responses, the United States reported the following facts as being
undisputed: 1
Deputy Hernandez observed Camacho-Alvarado attempt to pull his
hand out his hoodie pocket and saw that Camacho-Alvarado was holding a
gun. Deputy Hernandez yelled, “Police! Don’t move!” as loud as he could
and drew his own firearm. Deputy Hernandez then observed Camacho-
Alvarado successfully draw the gun from his right hoodie pocket. At this
point, Deputy Hernandez and Camacho-Alvarado were as close as 4 or 5
feet apart.
Camacho-Alvarado ignored Deputy Hernandez’s command and
turned and ran north, further into the trailer park, with his weapon in hand.
Deputy Hernandez ran after Camacho-Alvarado and again yelled, “Police!”
...
During the pursuit, Deputy Hernandez could see the firearm in
Camacho-Alvarado’s hand. The pursuit lasted approximately 8 seconds.
Camacho-Alvarado turned left by trailer 26 [where he and his
mother lived] and Deputy Hernandez briefly lost sight of him. After a
second or maybe a couple of seconds, Deputy Hernandez observed
movement to his left and saw Camacho-Alvarado to his west, near the front
door of trailer 26.
As Deputy Hernandez was facing west, he observed Camacho-
Alvarado moving northward from his left to his right, with his firearm
pointed at Deputy Hernandez.
Deputy Hernandez discharged his duty-issued weapon, a Glock 23
Gen 4 40 Caliber handgun, four times. He fired the shots in quick
succession, within approximately one second, until he lost sight of
Camacho-Alvarado.
1
Plaintiff Hermalinda Alvarado-Escobedo, Camacho’s mother, testified that
she heard rapid gunshots from her bedroom in trailer 26, but she did not look outside
or see anything at the time she heard the shots. Alvarado-Escobedo’s boyfriend also
heard shots. He approached the front door and saw Camacho fall to the ground near
the door, but he did not witness the shooting.
4
Deputy Hernandez was near the southeast corner of trailer 26 when
he discharged his weapon.
At that time, Deputy Hernandez was less than 30 feet and possibly as
little as 20 feet away from the front door of trailer 26, where he had seen
Camacho-Alvarado.
Id., Vol. II at 319-21 (internal quotation marks, alterations, paragraph numbers and
record citations omitted).
Plaintiffs did not dispute that this was an accurate summary of Hernandez’s
testimony, but they argued it was incomplete and they attempted to call his account
of events into question with other evidence. See Pauly v. White, 874 F.3d 1197, 1218
(10th Cir. 2017) (on summary judgment, court must “look at the circumstantial
evidence that, if believed, would tend to discredit the police officer’s story” (internal
quotation marks omitted)). Most importantly, they disputed whether Camacho had or
pointed a gun at Hernandez. We analyze plaintiffs’ evidence in depth later in this
decision.
The Aftermath
Camacho was hit once by the gunshots. A medical investigation found that the
fatal bullet entered his right lateral chest near the armpit, crossed through his body
and came to rest in the tissues of his left mid back.
Immediately after the shooting, Deputy Hernandez, along with two other
officers who arrived at the scene, Deputies Malone and Hoyle, approached the front
door of trailer 26, where they saw that Camacho had fallen in the doorway. The
upper part of his body was inside the threshold of the trailer, and the lower part of his
body was on the front steps.
5
Malone and Hernandez observed a gun near Camacho’s body. Hoyle testified
he saw something that he thought was a gun near the body, but he acknowledged it
might have been something other than a gun.
Hernandez testified he recovered the gun and placed it in Task Force Officer
Tim Hix’s police vehicle for security. Hoyle did not see Hernandez retrieve the gun.
The New Mexico State Police later recovered a 9mm Ruger P89 with a red
grip from Officer Hix’s vehicle. DNA was obtained from the grip, trigger, and
trigger-guard of the gun that tested positive for Camacho. The gun had previously
been stolen. At the time it was stolen, it did not have a red grip. The defendants
presented evidence that Camacho had owned and used red spray paint.
After the shooting, Malone and Hoyle moved Camacho from the doorway of
trailer 26 to a place of cover behind the engine block of a nearby vehicle. The
deputies explained that they moved Camacho because the trailer doorway represented
an area of danger known as the “fatal funnel . . . where altercations could potentially
happen” and law enforcement officers or bystanders could “get hurt or hit.” Aplt.
App., Vol. II at 323 (internal quotation marks omitted). Plaintiffs complain, based on
their expert’s report, that dragging Camacho away from the doorway “had a
detrimental effect on trace evidence in the clothing, which affected the ballistics
analysis in this case.” Id., Vol. V at 1228.
6
ANALYSIS
Our summary judgment standard of review is well established:
We review the grant of summary judgment de novo. We view the facts in
the light most favorable to the nonmovant and draw all reasonable
inferences in the nonmovant’s favor. Summary judgment is appropriate
only if there is no genuine dispute as to any material fact. A fact is material
if, under the governing law, it could have an effect on the outcome of the
lawsuit. A dispute over a material fact is genuine if a rational jury could
find in favor of the nonmoving party on the evidence presented.”
Jones v. Norton, 809 F.3d 564, 573 (10th Cir. 2015) (citations and internal quotation
marks omitted).
Bivens Claim
The district court granted summary judgment in favor of Hernandez based on
qualified immunity. “The doctrine of qualified immunity shields officials from civil
liability so long as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Mullenix v.
Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (internal quotation marks omitted). A
Bivens defendant’s assertion of this affirmative defense “creates a presumption that
[the defendant is] immune from suit.” Perea v. Baca,
817 F.3d 1198, 1202 (10th Cir.
2016). To overcome that presumption, the plaintiff “must show that (1) the
[officer’s] alleged conduct violated a constitutional right, and (2) it was clearly
established at the time of the violation, such that every reasonable official would
have understood, that such conduct constituted a violation of that right.”
Id. (internal
quotation marks omitted). The district court found that plaintiffs had failed to raise a
7
genuine issue of material fact concerning whether Hernandez violated Camacho’s
constitutional rights.
Plaintiffs asserted a Fourth Amendment excessive force claim. Such claims
are evaluated “under an objective reasonableness standard, which we judge from the
perspective of a reasonable officer on the scene.” Id. (citing Graham v. Connor,
490 U.S. 386, 396-97 (1989)). “To determine if an officer’s actions were objectively
reasonable, we carefully consider the totality of the circumstances, including the
severity of the crime at issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.”
Id. (internal quotation marks omitted).
“[O]fficers are not justified in using deadly force unless objectively reasonable
officers in the same position would have had probable cause to believe that there was
a threat of serious physical harm to themselves or to others.” Estate of Ceballos v.
Husk,
919 F.3d 1204, 1213-14 (10th Cir. 2019).
Plaintiffs concede that if a “jury found that [Camacho] was armed and pointed
a firearm at . . . Hernandez, then obviously . . . Hernandez was privileged to use
deadly force against . . . [Camacho].” Reply Br. at 5. The district court concluded
that, considering the facts as Hernandez recounted them, his use of force was
reasonable. It noted that “[o]nce Camacho pulled a weapon and refused Deputy
Hernandez’s instruction not to move, Deputy Hernandez had probable cause to
believe that Camacho posed a serious threat of physical harm to others in the trailer
park justifying [his] pursuit of Camacho,” and that “Deputy Hernandez did not use
8
force until Camacho pointed his gun at [him].” Aplt. App., Vol. VI at 1688. The
district court opined that plaintiffs “offer[ed] nothing other than speculation to
dispute Hernandez’s version of events and the evidence” which was “not sufficient to
overcome summary judgment.” Id. at 1694.
In their appellate briefing plaintiffs identify three areas of factual dispute that
they contend should have precluded summary judgment. They argue that material
factual disputes exist concerning whether: (1) Hernandez could identify the person he
was shooting at; (2) Camacho was aiming a gun when Hernandez shot him, thus
posing a deadly threat; and (3) Camacho even possessed a gun when he was shot.
See Aplt. Opening Br. at 16-18. Not every factual dispute, however, prevents the
entry of summary judgment. We address plaintiffs’ contentions below.
1. Hernandez’s Identification of Camacho
Plaintiffs complain that because it was dark at the time of the shooting, and
because Hernandez twice “lost his visual” of Camacho—during the pursuit and as he
fired the final round at him—he “shot a man he could not see or identify.” Aplt.
Opening Br. at 16. They contend a genuine issue of material fact exists concerning
whether Hernandez reasonably believed that he was shooting at the same person he
had encountered seconds earlier—the person who had refused his instruction not to
move and had drawn a weapon.
Plaintiffs’ assertion that Camacho may not have been the same person who
originally confronted Hernandez with a handgun is purely speculative and therefore
cannot preclude summary judgment. Plaintiffs point to no evidence to suggest that
9
there was a second man at the trailer park carrying a firearm whom Hernandez
initially encountered. Although Hernandez briefly lost direct visual contact with
Camacho during the pursuit, he regained visual contact a couple of seconds later. See
Aplt. App., Vol. V at 1266. The point at which he reacquired visual contact was
consistent with the trajectory of Camacho’s flight. Hernandez testified that he could
tell “where [Camacho] broke left” and that to intercept him, Hernandez “br[oke] left
in what [he] believe[d] to be his exact path” and “[a]lthough [he] lost the visual of
[Camacho he] knew the approximate distance.” Id. at 1268. In addition, although it
was dark, Hernandez could see that Camacho was wearing a black hoodie. The
person he initially encountered was also wearing a hoodie, and although Hernandez
could not recall whether that person was wearing the hood over his head, he recalled
that the person extracted the firearm from the pocket of the hoodie. Hernandez
testified there was no question that this person and the deceased (Camacho) were the
same person.
Plaintiffs also complain that Hernandez lost visual contact with the person he
was shooting at while he fired the shots. Any complaint about mistaken identity on
this point would require even greater speculation than their previous theory. It would
require a jury to believe that Hernandez began by shooting at an unknown third party
who pointed a gun at him but then somehow hit Camacho, who had no gun, instead.
Plaintiffs point to no evidence that supports such a theory.
Nor would the facts permit a jury to find it was an unreasonable use of force
for Hernandez to shoot Camacho without first doing more to verify his identity.
10
Hernandez testified that when he discharged his firearm “there was no question in my
mind it was the same subject based on the totality of the circumstances.” Id., Vol.
VII at 1756. As we have seen, the evidence supports this conclusion. In any event,
Hernandez acted reasonably based on the events immediately preceding the shooting.
According to his testimony, Hernandez faced a split-second decision after Camacho
pointed a gun in his direction, and Hernandez “thought there was an imminent threat
to [his] life.”
Id. It was reasonable to respond to such a threat with deadly force.
See Thomas v. Durastanti,
607 F.3d 655, 664 (10th Cir. 2010) (“Thus, if threatened
by [a] weapon . . . , an officer may use deadly force.”); see also, e.g., Estate of Smart
ex rel. Smart v. City of Wichita,
951 F.3d 1161, 1177 (10th Cir. 2020) (noting that
“[c]ourts are particularly deferential to the split-second decisions police must make”
in situations involving deadly threats).
2. Issues Surrounding Camacho and the Pistol
Plaintiffs attempt to cast doubt on both Camacho’s possession of and pointing
of the firearm at Hernandez. Having carefully considered the evidence, we conclude
that plaintiffs have failed to show that a genuine factual issue exists concerning either
whether Camacho possessed a pistol or whether he pointed it at Hernandez.
A. Camacho’s Possession of the Pistol
As noted, a pistol was discovered near Camacho’s body after the shooting, and
there is evidence tying Camacho to this gun. Testing of swabs taken from the pistol
confirmed that his DNA was on the pistol. In addition, when stolen from its prior
owner the gun did not have a red grip, but at the time it was recovered at the scene
11
the grip had been spray-painted red. There was evidence that Camacho possessed
and had used red spray paint at the trailer.
In response, plaintiffs presented several facts they contend created a genuine
factual dispute about whether Camacho possessed a pistol. We recognize that
“plaintiffs’ inability to conclusively prove a negative [i.e., that Camacho did not have
a gun] does not prevent their evidence from creating a genuine dispute of fact.”
Estate of Smart, 951 F.3d at 1170. Even so, plaintiffs’ evidence fails to evince a
genuine factual dispute here.
Plaintiffs claimed that according to Camacho’s mother, Hermalinda Alvarado-
Escobedo, who moved from her bedroom to the door of the trailer where Camacho’s
body lay after the shooting, Camacho “did not have a gun at or near him at the scene
of the shooting.” Aplt. App., Vol. V at 1225. But defendants cited facts that showed
that by the time she first saw her son, Hernandez had already removed the weapon. 2
Plaintiffs contended that “[l]aw enforcement officers gave three different
versions of where the gun was located on [Camacho’s] body.” Id.. 3
2
Alvarado-Escobedo testified that she arrived at her son’s body within a few
seconds of when she heard gunshots. But she also testified she thought it might have
been 10 or 15 seconds. She admitted that her memory of the timing of events that
night was poor.
3
Plaintiffs also cited evidence that New Mexico State Police (NMSP)
diagrams did not show a gun near Camacho, and that Deputy Hoyle stated he “did not
observe any gun on the doorway floor of the trailer or in the dirt.” Aplt. App., Vol. V
at 1225; see also id., Vol. II at 391. They do not renew these arguments on appeal.
In any event, this evidence does not create a genuine factual dispute. The NMSP
diagrams, which depict Camacho’s body removed from the trailer steps, appear to
have been prepared after the gun had been removed from the scene. As we have
12
Deputy Malone recalled seeing a red-colored pistol “on the eastern side of
[Camacho’s] body,” within a foot of his shoulder. Id., Vol. III at 368. Deputy Hoyle
saw what appeared to be a gun “kind of just in between the waist and the arm, free, it
looked like.”
Id. at 391. Hernandez testified the gun was “right next to [Camacho’s]
right arm.”
Id. at 426. Any discrepancies in these observations, however, were
minor and did not create a genuine factual dispute about whether Camacho possessed
a firearm.
Plaintiffs also presented evidence that “none of [Camacho’s] family members
who lived with him had previously seen him in possession of a gun or gun
paraphernalia or observed such items on the premises.” Id., Vol. V at 1238. Such
evidence may be relevant to an excessive-force inquiry. See Estate of
Smart,
951 F.3d at 1169-70 (citing “testimony from witnesses who said they . . . never knew
[the decedent] to own a gun”). But its value rests on inferences that (1) if the
decedent possessed a firearm, the witnesses would have noticed it; and (2) what the
witnesses previously failed to observe was also absent on the relevant occasion, i.e.,
that the decedent did not possess a firearm when he was shot. Here, direct evidence
refutes the inference plaintiffs seek to draw from the witnesses’ previous failure to
observe Camacho with a firearm.
noted, Hoyle testified he did see what appeared to be a gun in proximity to
Camacho’s body.
13
After the shooting, the New Mexico State Police obtained a search warrant for
trailer 26, where Camacho resided. From Camacho’s bedroom they recovered a
black .380 firearm, firearm paraphernalia, a black holster, a green rifle case, body
armor, and 9mm bullets. The 9mm bullets bore the same headstamp as the 9mm
bullet found in the gun recovered near Camacho’s body. Given this evidence, it
would be unreasonable to infer from witnesses’ prior failure to observe Camacho in
possession of a firearm that he did not possess a firearm when he was shot.
Finally, plaintiffs complained that Hernandez removed the gun from the scene
of the crime and placed it in a law enforcement vehicle rather than allowing it to be
placed into evidence. They further noted that Deputy Hoyle did not see Hernandez
pick up the gun from the scene and place it in the vehicle, and that Deputies Malone
and Hoyle moved Camacho’s body, interfering with the ballistic evidence. These
facts bear little relevance to the issue of whether Camacho possessed the firearm,
unless offered to support a theory that Hernandez planted the firearm in the vehicle or
attempted in other ways to obscure the facts of the shooting. We find the district
court’s critique of any such “planting of evidence” theory persuasive:
The jury would have to find that after Hernandez shot Camacho, that
in a matter of seconds between the gunshot and when the other officers
arrived, Deputy Hernandez somehow got possession of the Ruger 9mm
with the distinctive red handle matching the spray paint in Camacho’s room
and on the stairs of Camacho’s trailer, got Camacho’s DNA on the gun,
then put the gun in a secure Marshals vehicle, where it would be found later
by a completely different agency investigating the shooting. Additionally,
the jury would have to find that Hernandez quickly came up with this story
that matched all the physical evidence at the scene. Then somehow in a
matter of seconds, Hernandez relayed this story to Deputies Malone and
Hoyle, so that they would know to move the body to potentially make any
14
ballistics investigation more difficult. Additionally, Hernandez then got
Deputy Malone to lie under oath by testifying that he saw a gun that was a
reddish color and was close to the shoulder area, or that the gun and the
shoulder were in close proximity to each other. Deputy Malone also
testified that he saw Hernandez grab the gun, but did not see what happened
after that.
Aplt. App., Vol. VI at 1691-92 (citation omitted).
In sum, the cited facts do not create a genuine factual issue concerning
whether Camacho possessed the Ruger 9mm pistol
B. Camacho’s Pointing of the Pistol
Plaintiffs also assert that even if Camacho possessed a pistol, there is a
genuine issue of material fact about whether he pointed it at Hernandez. They
complain that it was dark at the scene, making it difficult for Hernandez to see
whether Camacho was pointing the gun at him. But a conclusory assertion that it was
dark at the scene does not by itself create a genuine factual dispute about what
Hernandez saw. In addition to seeing Camacho pointing the gun, Hernandez testified
that he could identify obstacles around him and that there was some lighting in the
area. See Aplt. App., Vol. VII at 1757. He also stated that he sought cover after the
shooting because there was enough light in the area that he was concerned Camacho
could still see him. See id.
Plaintiffs also cite an alleged dispute concerning the forensic evidence. One of
the physicians who autopsied Camacho stated that “[t]he location of the gunshot
wound, and the trajectory through the body, indicate that, with [Camacho] standing in
an erect position, the right side of his body was towards the shooter, with the
15
orientation of his upper body nearly perpendicular to the shooter’s orientation and
also with his upper arm raised towards his front, away from his side.” Id. at 1851.
Defendants argue this statement is consistent with Hernandez’s report that Camacho
pointed a gun at him. But plaintiffs counter with the statement of their forensic and
projectile expert, David Balash, who stated:
Investigators conclude that the bullet wound to the victim correlates to the
stated fact by Agent Hernandez that the suspect was pointing his weapon
at him when he fired, however there are many other scenario[s] that allow
the arm to be away from the body when the fatal bullet struck such as
reaching forward, above, or backwards.
Aplt. Opening Br. at 17 (quoting Aplt. App., Vol. V at 1383).
Balash thus speculated that Camacho could have been reaching forward,
above, or backwards at the time Hernandez shot him, rather than pointing a gun at
Hernandez. Such speculation, without additional evidentiary support, does not create
a genuine factual issue. The standard here is a demanding one: whether Hernandez
reasonably perceived that Camacho posed a threat of serious physical harm to
himself or others. See Estate of Smart, 951 F.3d at 1171 (“An officer may be found
to have acted reasonably even if he has a mistaken belief as to the facts establishing
the existence of exigent circumstances.” (internal quotation marks omitted)). Given
Hernandez’s testimony and the other evidence we have described, Balash’s
speculative testimony fails to create a genuine issue of material fact on this point.
The district court properly granted qualified immunity in favor of Hernandez.
16
FTCA Claim
The United States may be held liable under the FTCA in “circumstances where
the United States, if a private person, would be liable to the claimant in accordance
with the law of the place where the act or omission occurred.” 28 U.S.C.
§ 1346(b)(1). Citing New Mexico law, Plaintiffs argue that the United States is liable
because Hernandez negligently shot and killed Camacho. See, e.g., Torres v. State,
894 P.2d 386, 391 (N.M. 1995) (stating officers have “a duty to exercise that care
ordinarily exercised by reasonably prudent and qualified law enforcement officers”);
cf. State v. Johnson,
954 P.2d 79, 82-83 (N.M. Ct. App. 1997) (noting New Mexico
legislature has limited use of deadly force by law enforcement officers to situations
where officers have probable cause to believe they are threatened with serious harm
or deadly force). 4 Plaintiffs summarize the alleged negligence as follows:
Hernandez “while in plain clothes with no official indicia that would alert the
residents of [the trailer park] of his status as a law enforcement officer, used lethal
force against an unknown and unidentified man who posed no risk to law
enforcement.” Aplt. Opening Br. at 21. For the reasons we have already explained,
plaintiffs have failed to identify a genuine issue of material fact that would permit a
jury to conclude that Hernandez used lethal force against “an unknown and
unidentified man” or that he failed to act as a reasonably prudent officer in
concluding that Camacho posed a serious risk of harm to law enforcement. The
district court properly granted summary judgment concerning this claim.
17
Loss of Consortium Claims
Plaintiffs also challenge the grant of summary judgment on their loss of
consortium claims. In a brief argument they incorporate their contentions that
genuine issues of material fact exist concerning whether Camacho posed a threat to
law enforcement when Hernandez shot him. For the reasons we have stated, these
arguments fail, and the loss of consortium claims therefore fail as well.
CONCLUSION
We affirm the district court’s grant of summary judgment.
Entered for the Court
Jerome A. Holmes
Circuit Judge
18
