JAMES O. BROWNING, District Judge.
The Court primarily takes the facts from the FAC. Normally, the sufficiency of a complaint must rest on its contents alone. See Casanova v. Ulibarri, 595 F.3d 1120,
On April 19, 2001, Reid pled guilty to criminal charges in three separate cases: (i) Quay County Cause No. D-1010-CR-2000-00137 ("CR-137"); (ii) Quay County Cause No. D-1010-CR-2000-00138 ("CR-138"); and (iii) Quay County Cause No. D-1010-CR-2000-00139 ("CR-139"). FAC ¶¶ 5, at 1-2. The three cases cross-referenced each other, but only the Judgment and Sentence for CR-137 set out Reid's incarceration and probation terms. See FAC ¶ 5, at 1-2. The Judgment, Sentence, and Commitment, No. CR-00-00139, filed August 16, 2013 (Doc. 27-2)("CR-139 J&S"), states: "The aforesaid sentence shall be consecutive to the sentence imposed in Cause No. CR-00-00137 and CR-00-00138. Defendant has also pled guilty to charges in Cause No. CR-00-00137 and CR-00-00138 and the terms and conditions shall apply to all three cases." CR-139 J&S ¶ 4, at 2. See MTD Memo. ¶ 18, at 7-8. Reid was sentenced to three hundred sixty-four days incarceration at the Quay County Detention Center; upon release, "he was to be transported directly to a residential rehabilitation treatment facility
In June, 2002, an Order of Probation was filed in CR-137 requiring Reid to be on supervised probation from May 2, 2002, until May 1, 2007. See FAC ¶ 7, at 2. On May 27, 2004, the court entered an Order of Early Discharge on the suspended sentence, relieving Reid of any further obligations in CR-137. See FAC ¶¶ 7, at 2. In February, 2006, an Amended Order of Probation was filed in CR-138 and CR-139, requiring Reid to serve probation from March 14, 2002, until March 13, 2007. See FAC ¶ 8, at 2. Reid alleges that, "[u]nder New Mexico law, the total period of probation a defendant can be sentenced in district courts may not exceed five (5) years." FAC ¶ 7, at 2 (citing N.M. Stat. Ann. § 31-20-5(A); State v. Devigne, 1981-NMCA-088, 96 N.M. 561, 632 P.2d 1199).
In June, 2007, three months after Reid completed five years of probation in CR-139, Ross "questioned why Plaintiff was no longer on probation." FAC ¶ 10, at 3. "Even though the file and documentation contained therein clearly showed that the Plaintiffs probation had ended on March 13, 2007 and that he could not be placed on any additional probation," Ross filled out a new Order of Probation, which extended Reid's probation from March 14, 2007, until March 13, 2012, and "submitted it to the district court for its signature." FAC ¶¶ 10-11, at 3.
Judge Purcell signed the Order of Probation. See Order of Probation at 2, dated June 12, 2007, filed August 16, 2013 (Doc. 27-1); MTD Memo. ¶ 17, at 7. After the court signed the Order of Probation, Ross presented it to Reid and required him to sign it; although Reid "questioned the validity of extending his probation any further," Ross assured him that he had an additional five years of probation to serve for his April 19, 2001, convictions. FAC ¶ 11-12, at 3. Under the Order of Probation, Reid
FAC ¶ 12, at 3. Reid adhered to the terms of the Order of Probation until September, 2011, including monthly reporting to his PO and allowing his PO on at least one occasion to search his home in Logan, New Mexico. See FAC ¶ 13, at 3.
At some point before September, 2011, Garcia directly supervised Reid, and Muller supervised Garcia. See FAC ¶¶ 14, at 4. On September 7, 2011, Reid went to the Tucumcari, New Mexico, probation office
Reid alleges that NMRA 5-805(B) requires that the Defendants file a notice of the arrest, and give a copy to the probationer and the district court, and that the court then has five days to review the conditions of release for the incarcerated probationer. See FAC ¶ 17, at 4-5.
Reid retained counsel to represent him, and on September 14, 2011, an order modifying his conditions of release was filed, and he was released on a $5,000.00 Own Recognizance Bond. See FAC ¶ 18, at 5. Reid's counsel and the Tenth Judicial District Attorney's Office then determined that Reid had completed his probation in March, 2007, and that "he was not legally on probation after that date." FAC ¶ 19, at 5. The parties stipulated to an order discharging Reid based on fulfilling his term of probation, see FAC ¶ 19, at 5; that order states, in relevant part:
Stipulated Order at 1.
On July 17, 2013, Reid filed the FAC, alleging three counts: (i) Count I, due-process violation under the Fourteenth Amendment to the Constitution of the United States; (ii) Count II, a search in violation of the Fourth Amendment to the Constitution of the United States; and (iii) Count III, a seizure in violation of the Fourth Amendment to the Constitution. See FAC at 5-7. In Count I, Reid alleges that "[t]he Defendants, while acting under the color of state law, deprived the Plaintiff of his liberty interest without due process of law," in violation of the Fourteenth Amendment to the Constitution, by requiring him to submit to four and one-half years of supervised probation and seven days of incarceration. FAC ¶¶ 21, at 5. He alleges that "it was a clearly established law that an individual cannot be placed on probation and required to adhere to the terms of probation and arrested for allegedly violating those terms, without first being charged with a crime and being provided with due process prior to a conviction," FAC ¶ 19, at 5, and that "[t]he conduct of the Defendants was intentional, willful, wanton, and in reckless disregard of the rights of the Plaintiff and he is therefore entitled to an award of punitive damages to punish the Defendants for their conduct to deter similar conduct on their part in the future," FAC ¶¶ 23, at 6. In Count II, Reid alleges that "[t]he Defendants, while acting under the color of state law, forced the Plaintiff to submit to a urine test and searched his home, without a warrant, absent exigent circumstances," in violation of the Fourth Amendment. FAC ¶ 26, at 6. He contends that "it was a clearly established law that a law enforcement officer could not require an individual to submit to a urine test or search his home without a warrant, unless there were exigent circumstances," FAC ¶ 25, at 6, and that "the conduct of the Defendants was intentional, willful, wanton, and in reckless disregard of the rights of the Plaintiff," entitling him to punitive damages, FAC ¶ 28, at 7. In Count III, Reid alleges that the "individual Defendants, while acting under the color of state law, arrested the Plaintiff on September 7, 2011 without probable cause and without a warrant," in violation of the Fourth Amendment. FAC ¶ 31, at 7. He contends that "it was a clearly established law that a law enforcement officer could not arrest an individual without probable cause and/or an arrest warrant," and that, "under New Mexico law a probation officer has no independent law enforcement authority, but may only enforce the terms of valid probation orders." FAC ¶ 30, at 7. He alleges that the "conduct of the Defendants was intentional, willful, wanton, and in reckless disregard of the rights of the Plaintiff," entitling him to punitive damages. FAC ¶ 33, at 7.
The Defendants move the Court, pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure, for an order dismissing the FAC with prejudice as to all Defendants. See MTD at 1. The Defendants
The Defendants emphasize "two observations" from the United States Court of Appeals for the Tenth Circuit "concerning probation officers and their `unique' relationship to the sentencing court":
MTD Memo. at 2. The Defendants note that the Tenth Circuit addressed "whether a federal probation officer had certain powers," but argue that "there is no rational reason why the Davis court's comments about the special role probation officers play is any less applicable to state probation officers." MTD Memo. at 2 n.2.
In the Defendants' view, they are all entitled to absolute quasi-judicial immunity, because their work was "intimately or intrinsically associated with a judicial proceeding." MTD Memo. at 11. The Defendants point to the Tenth Circuit's holding that "a probation officer is entitled to quasi-judicial immunity for activities that are `intimately associated with the judicial phase of the criminal process' such as preparation of a pretrial sentence report,"
MTD Memo. at 11 (quoting Tripati v. U.S.I.N.S., 784 F.2d 345, 348 (10th Cir. 1986)(per curiam)), and that "an `official charged with the duty of executing a facially valid court order enjoys absolute immunity from liability for damages in a suit challenging conduct prescribed by that order,'" because "`[e]nforcing a court order or judgment is intrinsically associated with a judicial proceeding,'" MTD at 11 (quoting Valdez v. City & Cnty. of Denver, 878 F.2d 1285, 1286 (10th Cir.1989)).
The Defendants identify five allegations that Reid makes against Ross: (i) she questioned why Reid was no longer on probation; (ii) she filled out a new Order of Probation and submitted it to the district court for its signature; (iii) she presented Reid with the new Order of Probation; (iv) she assured Reid that he had an addition five years of probation to serve; and (v) she did not file a notice of arrest NMRA 5-805 allegedly required. See MTD Memo. at 11-12. Regarding the first allegation—that Ross questioned why Reid was no longer on probation—the Defendants contend that the FAC does not allege any "constitutionally infirm motive" for Ross' actions; they argue that her actions were consistent with the language in the CR-139 J&S, which indicated that the sentence "shall be consecutive" to the sentence imposed in CR-137 and CR-138. MTD Memo. at 12. Further, although Reid alleges that "the file and documentation contained therein clearly showed that the Plaintiff's probation had ended on March 13, 2007 and that he could not be placed on any additional probation," FAC ¶ 10, at 3, the Defendants argue that "there is simply no allegation that Ross was aware of such documentation" when she questioned why Reid was no longer on probation or submitted a new probation order to Judge Purcell," MTD Memo. at 12. In the Defendants' view, these allegations
Regarding the alleged failure to file a notice pursuant to NMRA 5-805(B), the Defendants argue that this allegation "cannot be used to predicate liability on Ross or any of the other defendants." MTD Memo. at 17. NMRA 5-805(B) states:
NMRA 5-805(B). See MTD Memo. at 17 (quoting NMRA 5-805(B)). The Defendants point out that NMRA 5-805(B) imposes an obligation on the probation office, not on a probation officer, and that Reid has not alleged that any of the Defendants are responsible within the probation office to file the notice. See MTD Memo. at 17. The Defendants assert that Reid's FAC does not allege that Ross or Muller took any part in Reid's arrest on September 7, 2011, and, thus, the "blanket reference to `Defendants' . . . that no notice of arrest was filed" cannot apply to Ross or Muller. MTD Memo. at 17. & n.18. The Defendants further contend that "no harm resulted from the alleged failure to file the notice," because, based on the calculations from NMRA 5-104(A), the judge had until September 14, 2011, to "review the notice of arrest or warrant and consider conditions of release," and the order modifying Reid's conditions of released was filed on September 14, 2011. MTD Memo at 17-18 (citing NMRA 5-104(A)).
The Defendants argue that Hatley, Garcia, Pautler, and Muller are also entitled to quasi-judicial immunity, because their "alleged involvement with the violation of plaintiff's civil rights occurred in the context of them `executing a facially valid court order.'" MTD Memo. at 19 (quoting Valdez v. City & Cnty. of Denver, 878 F.2d at 1286). They note that Reid has not alleged that the Order of Probation was facially invalid and argue that "a review of such order reveals no facial invalidity." MTD Memo. at 19 n.19. They point to the Order of Probation, which, among other things, authorized them to have Reid arrested without a warrant if he violated a probation condition, and argue that their conduct was consistent with the Order of Probation's authorizations and that they were "assisting Judge Purcell exercise his supervisory power" over Reid. MTD Memo. at 20-21. The Defendants contend that the Order of Probation authorized them to arrest Reid on September 7, 2011, and that the arrest was based on probable cause: "Pautler and Hatley administered a urine test as specifically authorized by the facially valid" Order of Probation, and when Reid then "admitted that he had used marijuana," they had probable cause to believe that Reid had violated one of the conditions in the Order of Probation. MTD Memo. at 21.
The Defendants assert that Reid amended his complaint to "beef up" the allegations against them by adding that they "falsely stated that Plaintiff was a danger
MTD Memo. at 25. The Honorable James T. Giles, former United States District Judge for the Eastern District of Pennsylvania, held that the probation officers' conduct was adjudicatory in nature, and thus, granted the motion to dismiss based on absolute immunity. See MTD Memo. at 25-26.
MTD Memo. at 27. The Defendants maintain that the weight of authority is to the contrary, that is, that the law is not clearly established that probation officers must independently research the lawfulness of a probation order which the sentencing judge signed. See MTD Memo. at 27-28. Although Reid alleged in the FAC that the maximum term of probation he could serve under New Mexico law is five years, the Defendants contend that the rule and case on which Reid relies—N.M. Stat. Ann. § 31-20-5(A) and State v. Devigne—show that the maximum probation term for convictions that occurred at one trial is five years, but that Reid's situation involves crimes charged in three separate cases. See MTD Memo. at 28-29. They maintain that the law in New Mexico is not clearly established that a probationer may not serve more than five years' probation in the aggregate for three separate cases. See MTD Memo. at 30.
Finally, the Defendants argue that the Court should dismiss the claims against Muller, because the FAC does not allege that she was personally involved in the alleged constitutional violations; in their view, the "sole non-conclusory allegations against Muller is that she supervised Garcia. . . and she did not file a notice of arrest as allegedly required by Rule 5-805 NMRA." MTD Memo. at 30-31. The Defendants maintain that "[m]ere supervision of a person who violates another person's constitutional rights is insufficient to impose § 1983 liability on the supervisor, as personal liability may not be predicated on a theory of respondeat superior." MTD Memo. at 31. The Defendants contend that, although the law recognizes supervisory liability, the FAC does not contain allegations that support supervisory liability, because the FAC does not allege that Muller "promulgated, created, implemented or possessed responsibility for the continued operation of a policy that caused the complained of constitutional harm," or that she did so "with the state of mind required to establish the alleged constitutional deprivation." MTD Memo. at 31.
Reid responds that the Defendants are not entitled to absolute immunity or qualified immunity. See Plaintiff's Response in Opposition to the Defendants' Motion to Dismiss First Amended Complaint for Violation of Civil Rights [Doc. 26], filed August 23, 2013 (Doc. 28)("Response"). Reid asserts that Ross did not simply enforce the Order of Probation; she "made the determination" that Reid should serve five additional years of probation, completed the new Order of Probation, and presented it to the district court, "even though she knew the Plaintiff had already completed his period of probation." Response at 3. He asserts that he "anticipates that testimony in this case will show that district judges in New Mexico routinely sign off on probation orders submitted by the Probation and Parole Division without independently verifying the contents of those orders." Response at 3. Reid points to several cases which he contends "have held that probation and parole officers in identical situations to those of the Defendants are not entitled to absolute immunity," including Swift v. California, 384 F.3d 1184
Reid argues that the Defendants are also not entitled to qualified immunity, because the FAC "alleges that the Defendants intentionally and recklessly imposed an additional five (5) years of probation on the Plaintiff, knowing that his legitimate term of probation ended on March 17, 2007," and that "it was a clearly established law in the Tenth Circuit from June of 2007 through the date of the Plaintiff's arrest that a probationer who has completed his term of probation is entitled to the same constitutional rights as any other citizen." Response at 6. Reid points to Trask v. Franco, 446 F.3d 1036 (10th Cir. 2006), a case in which the probation officer mistakenly thought the plaintiff remained on probation, but in fact, the judge's order releasing the plaintiff had not made its way into the probation officer's file. See Response at 6. According to Reid, the Tenth Circuit denied qualified immunity, because a question of fact existed concerning the reasonableness of the officers' belief that the plaintiff was still on probation. See Response at 6 (citing Trask v. Franco, 446 F.3d at 1044). Reid maintains that, because he has alleged that the probation officers knew his period of probation had expired, and yet imposed an additional four and one-half years of probation and seven days in jail, "[t]here can be no question" that if the allegations are true, the Defendants are not entitled to qualified immunity. Response at 7.
Regarding Muller, Reid explains that "the only involvement of which the Plaintiff is aware concerning Defendant Kristy Muller is the fact that she would have normally approved the Arrest Order, which was approved by Defendant Hatley." Response at 7. He asserts that, "[a]t this early stage of the case," he "believes that the form executed for the Plaintiff's arrest, which identifies Kristy Muller as the supervisor, is enough to keep her in this lawsuit." Response at 7.
The Defendants reply that, in the Response, Reid attempts to defeat the MTD "by pretending that the Amended Complaint alleges things that it simply does not allege." Reply Memorandum in Support of Defendants' Opposed Motion to Dismiss First Amended Complaint for Violation of Civil Rights at 1-2, filed September 16, 2013 (Doc. 32)("Reply"). The Defendants point out that, although Reid contends that
Reply at 2. They argue that "preparation of a judicial order is a quintessential `judicial function,'" and even if Reid establishes through testimony that district judges in New Mexico routinely sign off on probation orders without verifying them, "then plaintiff will merely have established that the district judges in New Mexico have delegated part of their judicial function to the probation officers who prepare the orders for the judges' signatures." Reply at 3. They maintain that it would be "patently unfair" for Judge Purcell to have immunity for an order that he prepared himself and not extend that immunity to those who prepare orders for him, even though state rules authorize others to prepare orders and judgments and such practice is routine. Reply at 3 & n.1 (citing NMRA 1-058; NMRA 5-121(A)).
The Defendants further contend that— although Reid alleges in the Response that Hatley, Pautler, and Garcia were not performing a judicial function when they falsified the Arrest Order, knowing that Reid had completed his probation—the FAC does not allege that they knew that Reid had completed his probation, that the Order of Probation was infirm, or that it was facially invalid. See Reply at 3. The Defendants maintain that Hatley, Pautler, and Garcia should enjoy quasi-judicial immunity for enforcing the terms of the Order of Probation. See Reply at 3-4 (citing Valdez v. City & Cnty. of Denver, 878 F.2d at 1286). Although Reid attempts to distinguish Valdez v. City & Cnty. of Denver by asserting that the Defendants in this case were not following a court's direct order, the Defendants contend that, "whatever questions there might be about Ross and the OOP's genesis," Judge Purcell signed the Order of Probation, and Hatley, Pautler, and Garcia "were duty-bound to enforce" it. Reply at 4. Further, they assert that Reid did not allege in the FAC that Hatley, Pautler, and Garcia knew that the Order of Probation contained an illegal sentence of probation, "nor is such an allegation reasonably inferable from the non-conclusory factual allegations" within the FAC. Reply at 4. The Defendants compare their case to Tripati v. U.S.I.N.S., and contend that Ross' "alleged submission of a new order of probation to Judge Purcell for his signature is functionally similar to the preparation of a pretrial release report," because "preparation of an order of probation in a case where the judgment and sentence specifically said it was to run consecutively with the sentences in two other cases, is an `important part of the judicial process.'" Reply at 4-5 (emphasis in original)(quoting Tripati v. U.S.I.N.S., 784 F.2d at 348). Even if Ross was "wrong on the law—a point far from clear given the language" in the CR-139 J&S "and the fact that Devigne simply did not address the circumstances present in the instant case"—the Defendants contend that quasi-judicial immunity should still protect Ross. Reply at 5 (citing Kelly v. Cnty. of Montgomery, 2008 WL 3408123 at *1). The Defendants also rely on Tripati v. U.S.I.N.S., asserting that there is nothing in that case "that suggests that such immunity should not extend to a probation
Regarding the qualified immunity defense, the Defendants contend that the FAC "does not allege that any of the defendants knew that plaintiffs `legitimate term of probation ended on March 17, 2007' or that plaintiff's probation under the OOP was illegitimate," other than the "conclusory—and therefore insufficient— allegations that `the conduct of the Defendants was intentional, willful, wanton, and in reckless disregard of the rights of the Plaintiff.'" Reply at 6. In the Defendants' view, the FAC alleges "no more" than that Hatley, Pautler, and Garcia "enforced a facially valid order signed by Judge Purcell." Reply at 6. The Defendants argue that they are entitled to qualified immunity, because, under Hill v. Bogans, 735 F.2d 391, 393 (10th Cir.1984), an officer has no constitutional duty to independently determine a warrant's validity, unless that warrant is facially invalid. See Reply at 7. The Defendants contend that the FAC's allegation that their conduct was "intentional, willful, wanton, and in reckless disregard of the rights of the Plaintiff is conclusory under Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937, and that Brown v. Montoya "appears to be flatly at odds with the conclusion in Iqbal." Reply at 7. The Defendants argue that the
Reply at 7-8. The Defendants maintain that Trask v. Franco, a case on which Reid relies, does not dictate denial of qualified immunity, because "the `fact' that plaintiff was later discharged from probation on agreement by plaintiffs counsel and the Tenth Judicial District Attorney's office. . . is irrelevant." Reply at 8 (emphasis in original). Further, they point out that Trask v. Franco involved a motion for summary judgment and not a post-Ashcroft v. Iqbal motion to dismiss. See Reply at 8-9. The Defendants assert that Brown v. Montoya is distinguishable, because the order did not permit the probation officer to order the probationer to register as a sex offender. See Reply at 9.
The Defendants maintain that the Court should dismiss the FAC against Muller, "because it fails to allege sufficient personal involvement in the alleged deprivation of plaintiff's constitutional rights." Reply at 9. They contend that Reid's argument for keeping Muller in the case—that a form identifies her as a supervisor—is "insufficient and wholly unsupported by the law." Reply at 9-10. The Defendants point out that Reid also did not respond to their explanation of why a failure to file a notice pursuant to NMRA 5-805(B) "was of no constitutional consequence" and why State v. Devigne "does not stand for the proposition urged by plaintiff," and, thus, argue that "the Court may conclude that plaintiff agrees with these arguments." Reply at 10.
The Defendants direct the Court to McAllister v. District of Columbia, 653 A.2d 849, 851 (D.C.Ct.App.1995), to support their proposition that "the doctrine of absolute judicial or quasi—judicial immunity should be applied to defendant Ross even
At the hearing on January 17, 2014, the Defendants described the counts against them in Reid's FAC, see Tr. at 5:23-6:23 (James), and urged the Court to dismiss all the counts against them based on absolute quasi-judicial immunity or qualified immunity, or to dismiss the counts against Muller based on insufficient personal involvement, see Tr. at 6:24-7:7 (James). The Defendants directed the Court to Tripati v. U.S.I.N.S. and Valdez v. City & Cnty. of Denver, arguing that, as the federal probation officer in Tripati v. U.S.I.N.S. preparing the pretrial report was entitled to absolute quasi-judicial immunity for performing an activity intimately associated with the judicial phase of the criminal process, so too are the Defendants in this case entitled to absolute quasi-judicial immunity for their involvement. See Tr. at 7:7-8:13 (James). The Court asked how the state probation system works; the Defendants explained that state probation officers are "employees of the New Mexico Corrections Department," that they "are not law enforcement officers, they don't carry guns," but that they did not know whether they are housed in a building separate from the court in Tucumcari. Tr. at 8:14-9:14 (Court, James). The Defendants asserted that "there is no reason to treat state probation officers differently from federal probation officers." Tr. at 10:9-11 (James). The Court noted that, if a police officer executed a warrant, he or she may have qualified immunity, but "nobody would suggest that a police officer would have judicial immunity," and asked how a state probation officer executing a court order would have judicial immunity. Tr. at 10:14-24 (Court). The Defendants said that the probation officer could receive quasi-judicial immunity and that, while the label may not be important, "what's important is that it's absolute." Tr. at 10:25-11:3 (James). The Defendants pointed to Valdez v. City and County of Denver, in which the Tenth Circuit "held that an officer charged with enforcing a facial[ly] valid Court order enjoys absolute immunity and is not required to act as a[n] . . . appellate Court and second-guess the judge that issued that order, and in this case there is no allegation that the probation order required was not facially valid." Tr. at 11:4-10 (James). The Defendants explained that the Tenth Circuit decided Tripati v. U.S.I.N.S. in 1986, Valdez v. City and County of Denver in 1989, and Brown v. Montoya in 2011, but that Valdez v. City and County of Denver is "still good law." Tr. at 11:20-12:4 (James). The Court said that, if it were to issue an arrest warrant, then the United States Marshals would arrest the person, not the probation officer, and thus it would make sense that the marshals would receive absolute immunity for carrying out the court's order, although the marshals would not be immune if they violated a person's constitutional rights during the arrest. See Tr. at 12: 18-13:20 (Court). The Defendants agreed that, while the probation officers had a court order to supervise Reid, they could not supervise in an unconstitutional way, "for example, forcing [Reid] to provide a urine sample in public." Tr. at 13:21-14:7 (James). They argued that they are "entitled to absolute immunity for the arrest because again
Regarding the pleading requirements, the Defendants asserted that Reid must make nonconclusory factual allegations to support that they acted maliciously, intentionally, or with bad faith, that he did not make non-conclusory factual allegations about scienter, and that, although Brown v. Montoya "is problematic," there were facts in Brown v. Montoya "that are absent in this case." Tr. at 18:1-19:7 (James, Court). The Court noted that, as a district court, it must "take the position of the Tenth Circuit" and that it may be "stuck" with Brown v. Montoya. Tr. at 19:8-21 (Court). The Defendants suggested that they could distinguish Brown v. Montoya, because, in that case, "the probation officer's actions were clearly outside the scope" of the probation order, including "placing or forcing the defendant to register as a sex offender" and placing him on "sex offender probation." Tr. at 19:22-20:15 (James, Court). The Court asked how "that is so qualitatively different than going to the judge and saying" that Reid had "five more years of supervised release or probation and making him serve time that he statutorily was not required to serve." Tr. at 20:22-21:4 (Court). The Defendants noted that Ross submitted the order to Judge Purcell, but she did not participate in the September 7, 2011, arrest, while Hatley, Pautler, Garcia, and Muller followed the terms of the facially valid order. See Tr. at 21:5-17 (James). In the Defendants' view, Judge Purcell made the order his own after Ross submitted it to him and he signed it, which "can be thought of as an intervening superseding cause of any harm that befell the plaintiff as a result of that order." Tr. at 22:18-23:1 (James). The Defendants noted that, had Reid challenged the Order of Probation "by appeal or just a hearing with the judge at the time, we wouldn't be here today," and argued that it would be "unfair to allow Judge Purcell to be immune from liability for that order" and hold Ross liable for it, "[e]specially in light of the fact that it's four and a half years after the fact and Mr. Reid could have appealed or just simply talked to the judge." Tr. at 23:10-22 (James). The Defendants said the claim against Ross is a procedural due-process claim, and the Court noted that, when a plaintiff has not pursued an available procedural remedy, the plaintiff cannot maintain a procedural due-process claim. See Tr. at 24:1-25:17 (James, Court).
Reid contended that the Order of Probation was not facially valid, because it recites that Reid pled guilty on April 19, 2001, but the supervised probation was to run from March 14, 2007, until March 13, 2012; he argued: "[U]nder what possible set of circumstances would a Court in 2001 place someone on probation to begin in 2007 for five years? They wouldn't." Tr. at 29:11-19 (Frost). Reid explained that, while the parties dispute how long he was incarcerated, he was at most incarcerated for six months. See Tr. at 29:22-30:3 (Frost). The Court noted that the Order of Probation seemed "a little bit unusual," that it could not remember imposing a
The Defendants pointed out that the CR-139 J&S "specifically said that the sentence was to run consecutively" to CR-137 and CR-138, and, thus, Ross was "acting like a scribe of the Court, preparing an order." Tr. at 36:12-16 (James). They contended that the portion of the Order of Probation that Reid emphasized was "a recital," and that the "meat of the order still says, You're on probation till this date, and you probation officers need to enforce[] this order." Tr. at 36:17-20 (James). In the Defendants' view, "the responsible parties" for any incorrect probation order were the district attorney, Reid's then-attorney, and the judge who signed the orders, but that it would not be fair to "mak[e] Ross stand for a suit for damages for these past acts when Reid failed to do anything about it at the time." Tr. at 36:21-37:4 (James).
Reid contended that none of the Defendants are entitled to absolute immunity, "because first we don't have a facially valid order, and we have additional evidence as we go through the file over the period of time that there were problems with this
The Defendants asserted that they had probable cause to arrest Reid, because the Order of Probation "authorized and directed the probation officers to test [Reid] for drugs, they tested him for drugs, he came up positive[, and] the order allowed him to be arrested." Tr. at 40:18-24 (James). They explained that the Arrest Order says that Reid was "a risk to himself," not that he was a "danger"; they emphasized that "marijuana is illegal," and one of the reasons it is illegal under federal law and in most states is "because many people thin[k] that the consumption of it poses a risk to self and others." Tr. at 40:24-41:7 (James).
Moving onto qualified immunity, the Defendants framed the issue in this case as
Tr. at 42:13-43:8 (James). The Defendants contended that Reid did not provide any
Tr. at 43:9-16 (James). In their view, even if Ross should have checked to see if the Order of Probation was consistent with the law, the next step involved looking to state law, including N.M. Stat. Ann. § 31-20-5A and State v. Devigne; the Defendants contended that, although § 31-20-5A indicates that the total period of probation shall not exceed five years, State v. Devigne interprets that statute to mean that the maximum probation for a defendant for convictions that occurred at one trial was five years, while this situation involved three separate cases. See Tr. at 43:16-44:25 (James). The Court asked whether the federal issue is whether a probation officer violates the Constitution of the United States by acting on an incorrect interpretation of state law. See Tr. at 45:21-25 (Court). The Defendants disagreed, reiterating that the federal question is whether Reid has the right to have his probation officer independently verify the correctness of his sentence. See Tr. at 46:1-5 (James). The Defendants contended that, even if Ross had attempted to verify Reid's probation period, "it wasn't clear as to what was appropriate or not under state law." Tr. at 56:16-24 (James).
The Defendants framed the federal question against the Defendants, other than Ross, as whether it was "beyond doubt during the period 2007 to 2011 that. . . probationers have . . . [the] protected right to have their probation officers independently verify the validity of a facially valid probation order." Tr. at 47:2-8 (James). The Defendants asserted that Reid could not cite any case to that effect, failing to sustain his burden on the clearly established element, and that "Tenth Circuit law is to the contrary." Tr. at 47:8-16 (James). In the Defendants' view, Reid's Response made five state-of-mind allegations that were not in the FAC, including: (i) that the Defendants "intentionally and recklessly imposed an additional five years of probation on plaintiff knowing that his legitimate term of probation ended on March 17, 2007," Tr. at 48:24-49:5 (citing Response at 6); (ii) that Ross presented the Order of Probation to Judge Purcell "even though she knew the plaintiff had already completed his period of probation," Tr. at 49:6-10 (James)(citing Response at 3); (iii) that Ross, "knowing that the plaintiff had already completed his five years of probation," filled out a new Order of Probation and submitted it to the court, Tr. at 49:10-14 (James)(citing Response at 5); (iv) that Hatley, Pautler, and Garcia arrested Reid "knowing that the plaintiff had completed his probation," Tr. at 49:14-16 (James)(citing Response at 5); and (v) that the Defendants "knew that [Reid's] period of probation was over and yet proceeded to impose an additional four and a half years of probation and 7 days in jail," Tr. at 49:17-21 (James)(citing Response at 7). The Defendants argued that Trask v. Franco does not support denying their qualified immunity defense, because the probation order in that case had been rescinded, whereas, in this case, the Defendants acted on what was to them a facially valid probation order that Judge Purcell had signed, and, although Reid was later discharged from the Order of Probation, Garcia's, Pautler's, and Hatley's acts were not improper. See Tr. at 50:7-21 (James).
The Court asked Reid to explain the claims he was making against the Defendants; Reid alleged that every Defendant violated his procedural due-process rights and Fourth Amendment rights to be free from unreasonable searches and seizures. Regarding the procedural due-process claim, he explained that every Defendant had information available that should have
In response to the Court's question regarding whether Reid could have immediately appealed the Order of Probation, Reid said that there was no hearing in his case, and so neither the district attorney nor Reid's attorney was involved. Tr. at 54:14-55:14 (Court, Reid). Reid explained that he did not get an attorney to appeal the Order of Probation, because "he's destitute," was previously represented through a public defender, and thought that Ross was "shooting him straight." Tr. at 56:5-11 (Frost). Reid said that he signed the Order of Probation, but that "I think we can demonstrate that he signed that prior to the judge signing it, so . . . by him signing it I think [the Defendants were] representing to the Court that he agrees with that, but they didn't actually have a hearing where he could express his disagreement with the Court." Tr. at 56:23-57:5 (Frost). In his view, "[t]his was a circumstance where because of their shoddy procedures[,] there was no procedure available for him to do anything without going out and affirmatively hiring his own lawyer and challenging that." Tr. at 57:10-14 (Frost). The Court asked Reid how a ruling that there was not a procedural due-process violation based on Reid's failure to appeal the Order of Probation would affect his Fourth Amendment claims; Reid responded that the order was not valid and that the other probation officers should have seen that the order was not valid, meaning that they conducted the searches and seizure without probable cause. See Tr. at 59:19-61:22 (Court, Frost); id. at 63:8-13 (Frost). Reid argued that the Defendants violated the Fourth Amendment, and state law impacts whether the Defendants were acting reasonably; he agreed with the Court that it is federal law, not state law, that governs whether the law is clearly established for the qualified immunity analysis, and he compared his case to Marshall v. Columbia Lea Regional Hospital, 474 F.3d 733 (10th Cir.2007), and Brown v. Montoya. See Tr. at 63:8-66:1 (Frost, Court).
The Defendants argued that, if the Court finds that there is not a procedural due-process violation, then Valdez v. City and County of Denver and Gose v. Board of County Commissioners, 778 F.Supp.2d 1191 (D.N.M.2011)(Browning, J.), dictates that there are no Fourth Amendment violations. See Tr. at 66:8-18 (James). The Defendants also contended that the FAC, in some places, refers generally to the Defendants rather than to individual Defendants, and that Reid needed to identify with specificity what each Defendant did. See Tr. at 67:18-68:2 (James). The Court asked Reid what he was alleging against Ross; Reid explained that Ross presented the Order of Probation to Reid and then to the court, and that "it's the presentment to the Court that is the problem from my perspective." Tr. at 70:14-71:9 (Court, Frost). Reid maintained that, although police officers may ask for consent, this situation was more coercive, because the state court had already directed Reid to follow his probation officer's orders. See Tr. at 71:15-72:16 (Court, Frost). In Reid's view, probation officers have "immense power" over probationers, because
Regarding Muller, the Defendants reiterated their arguments that Reid did not sufficiently allege that she was personally involved in any alleged constitutional violations, or that she promulgated, created, implemented, or possessed responsibility for any policy that caused the alleged constitutional harm. See Tr. at 74:13-75:8 (James). Reid argued that he named Muller in the FAC, because she supervised Garcia and because the Arrest Order includes a line for her signature as a supervisor, although she did not sign the Arrest Order. See Tr. at 76:18-78:3 (Frost); id. at 79:10-14 (Frost). The Court noted that, for purposes of the MTD, it may have to consider the typed name as sufficient to require Muller to stop any constitutional violations that she sees. See Tr. at 79:22-80:24 (Court, James). The Defendants emphasized that, although Muller's typed name appears on the Arrest Order, she did not sign it and that Reid might have a case against her if she had signed it. See Tr. at 81:9-82:5 (James, Court). Reid maintained that he is alleging direct involvement, not supervisory liability, against Muller. See Tr. at 82:22-24 (Frost).
The Court said that it agreed with the parties that the analysis for quasi-judicial immunity considers whether the probation officer is performing a judicial function, but it would need to look at the interplay between Judge Purcell's order and whether the people enforcing the order have immunity. See Tr. at 84:9-85:14 (Court). The Court said that it thought that Reid could have appealed the Order of Probation, which would eliminate liability against Ross, and that it did not think the other probation officers would have any duty to look beyond the Order of Probation. See Tr. at 86:1-87:4 (Court).
In a Minute Order, filed May 24, 2014 (Doc. 45), the Court asked the parties to analyze the following issues related to Reid's procedural due-process claim against Ross: (i) "[W]hat process did Reid have available before and after the June, 2007, Order of Probation was entered in CR-139, and what authority shows that he had that process available?"; (ii) "What process does the due process clause require Reid to have been given before or after the new Order of Probation was entered?"; and (iii) "How would Ross, an individual, violate Reid's procedural due process rights?" Minute Order at 1.
In the Plaintiff's Supplemental Brief, filed May 29, 2014 (Doc. 46)("Reid Supp."), Reid argues that he "had the right to be present at the hearing extending his probation." Reid Supp. at 1 (bold and title case omitted). He points to United States v. Santiago, 977 F.2d 517 (10th Cir.1992), and, quoting from the case, asserts that a criminal defendant has a right to confront witnesses and evidence offered against him pursuant to the Sixth Amendment to the Constitution of the United States' confrontation clause, and that, for any other criminal proceeding, he has a right under the Fifth Amendment to the Constitution of the United States of America's due process clause "`to be present whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge,'" and that this right to be present "`exists to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.'" Reid Supp. at 1-2 (quoting United States v. Santiago, 977 F.2d at 522)(internal quotation marks omitted). He asserts that he had "the right to be present at whatever type of `hearing' was conducted concerning" the Order of Probation, especially because the Order of Probation increased the severity
Reid acknowledges that "the constitutional right to be present at a hearing, like all constitutional rights, can be waived under the appropriate circumstances," but he asserts that there is no evidence that he waived his right to be present at a hearing for new Order of Probation. Reid Supp. at 2. In his view, "[h]ad there actually been a hearing before the court" regarding the Order of Probation, he could have informed the Court what he asserts he told Ross—that he believed he had finished his term of probation—and "a judge would likely have looked at the history of the case, known that there was a five (5) [year] limit on probation and been able to refuse to enter the 2007 Order of Probation." Reid Supp. at 3.
Reid argues that "there is not basis under the New Mexico Statutes for a new or amended Order of Probation that has the effect of increasing the penalty or adding additional conditions of probation." Reid Supp. at 3 (citing State v. Castillo, 1980-NMCA-020, 94 N.M. 352, 610 P.2d 756; State v. Crespin, 1981-NMCA-095, 96 N.M. 640, 633 P.2d 1238).
In response to the Court's question what process Reid had available before Judge Purcell entered the Order of Probation in CR-139, the Defendants assert that Reid had the right to counsel and right to be present at his sentencing for CR-139. See Defendants' Response to Court's Minute Order at 1-2, filed May 29, 2014 (Doc. 47)("Defendants' Supp.")(citing State v. Garcia, 1980-NMSC-132, ¶ 15, 95 N.M. 246, 620 P.2d 1271 (stating that a "defendant's right to be present at every stage of the trial is grounded in the Sixth Amendment to the United States Constitution and made applicable to the states through the Fourteenth Amendment"); Rule 5-612(A) ("Except as otherwise provided by these rules, the defendant shall be present at all proceedings, including the arraignment, all hearings and conferences, argument, the jury trial and during all communications between the court and the trial jury.")). The Defendants assert that, after Judge Purcell entered the Order of Probation, Reid could: (i) move to correct or modify the sentence pursuant to rule 5-801 NMRA, see Defendants' Supp. at 2; (ii) appeal to the Court of Appeals of New Mexico pursuant to N.M. Stat. Ann. § 39-3-3, see Defendants' Supp. at 3 (citing State v. Williams, 2006-NMCA-092, ¶ 3, 140 N.M. 194, 141 P.3d 538 (stating that "[t]he grant of probation is a discretionary act of the sentencing court" and setting forth the standard of review for terms and conditions of probation); State v. Diaz, No. 31,288, 2011 WL 5041541, at *1 (N.M.Ct.
Next, the Defendants respond to the Court's question regarding the amount of process that the due process clause requires Reid to have been given before Judge Purcell entered the Order of Probation. See Defendants' Supp. at 5. They assert that they have "searched in vain for authority explaining what, if any, additional process is due a person already convicted of a crime, and judgment and sentence entered, before the judge signs the order of probation." Defendants' Supp. at 5. They explain that,
Defendants' Supp. at 5. The Defendants analogize to the process that is due before extending a probationer's term of probation; they assert that the Third, Fifth, Sixth, Eighth, and Ninth Circuits "have held that a hearing is not constitutionally required prior to the extension of probation." Defendants' Supp. at 5 (emphasis in original)(citing Skipworth v. United States, 508 F.2d 598 (3d Cir.1975); United States v. Cornwell, 625 F.2d 686 (5th Cir. 1980); Forgues v. United States, 636 F.2d 1125 (6th Cir.1980); United States v. Carey, 565 F.2d 545 (8th Cir.1977); United States v. Silver, 83 F.3d 289 (9th Cir. 1996)). The Defendants quote at length from United States v. Silver, in which the Ninth Circuit explained that, "`[w]hile the probationer who has found his period of probation extended does have some restrictions placed upon him, a "grievous loss" has not occurred and a liberty interest has not been so infringed as to require this court to call for additional protections as per the Due Process Clause.'" Defendants' Supp. at 6 (quoting United States v. Silver, 83 F.3d at 292). The Defendants note that there is "[n]o Supreme Court or Tenth Circuit authority [that] appears to be controlling on this issue," but that the Tenth Circuit cited Skipworth v. United States, 508 F.2d 598 (3rd Cir.1975), with "apparent approval" in United States v. Ortiz, 733 F.2d 1416, 1417 (10th Cir.1984). Defendants' Supp. at 6-7 n.3. In the Defendants' view,
Defendants' Supp. at 7.
Regarding the amount of process that the Due Process clause required Reid to
In response to the Court's question how an individual violates a probationer's procedural due-process rights, the Defendants assert that "there exists legal authority for the proposition that an individual may be held personally liable in damages under § 1983 for depriving an individual of his or her constitutional rights under the due process clause of the Fourteenth Amendment." Defendants' Supp. at 8 (citing Hafer v. Melo, 502 U.S. 21, 31, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991)(explaining that state officials sued in their individual capacities are "persons" within the meaning of § 1983); Brown v. Montoya, 662 F.3d at 1160-61 (recognizing that an individual sued in his individual capacity may be held liable under § 1983 for denying a plaintiff of his right to procedural due process)). According to the Defendants, "the ever-important element of causation in a § 1983 claim . . . is missing in plaintiffs due-process-based claim against Ross." Defendants' Supp. at 8. They assert that "Judge Purcell's signing of the subject order of probation scribed by Ross constituted an intervening cause of any harm suffered by plaintiff." Defendants' Supp. at 8 (citing Trask v. Franco, 446 F.3d at 1046 (holding that the probation officers' conduct was not the proximate cause of a plaintiff's injuries "if another act intervened and superseded the officer's liability for subsequent events")).
In the Minute Order, the Court also asked the parties to address whether there is "any authority to show that Reid's consent to the Order of Probation was not voluntary[.]" Minute Order at 1.
Reid asserts that "[a] criminal defendant cannot voluntarily consent to an illegal order which extends his probation." Reid Supp. at 3. He asserts that the Supreme Court of New Mexico addressed this "precise issue" in State v. Crespin, "where the defendant requested the judge allow him to go to a rehab that extended past the period of his probation, instead of being incarcerated for the remaining two (2) months of probation. The Court of Appeals upheld the judge's refusal to allow the plaintiff to agree to an extension of his probation, because there is no statutory basis for such an extension." Reid Supp. at 3-4.
The Defendants respond that Reid "may argue that State v. Baldon, 829 N.W.2d 785 (Iowa 2013), supports the proposition that Reid's consent to the order of probation was not voluntary," but they contend that "[i]t does not." Defendants' Supp. at 9. The Defendants explain that, in State v. Baldon, the Supreme Court of Iowa "concluded that `a parole agreement containing a prospective search provision is insufficient evidence to establish consent' and held that `the search provision contained in Baldon's parole agreement does not represent a voluntary grant of consent within our constitutional meaning.'" Defendants' Supp. at 9 (quoting State v. Baldon, 829 N.W.2d at 802-03). The Defendants point out that, in reaching that conclusion, the Supreme Court of
The Court entered a second minute order on June 9, 2014, requesting the parties to brief the following issues:
Minute Order, filed June 9, 2014 (Doc. 49).
Regarding the first question—whether Reid's conduct in violating a probation term was foreseeable to Ross—Reid asserts that "Ross could easily foresee that at some point during his probation the Plaintiff would test positive for marijuana use." Plaintiff's Supplemental Brief in Opposition to the Defendants' Motion to Dismiss [Doc. 26] at 1, filed June 12, 2014 (Doc. 50)("Reid's Second Supp."). To demonstrate that his use of marijuana was foreseeable, he points to three facts: (i) he "pled guilty to the distribution of marijuana," Reid's Second Supp. at 2 (citing Judgment and Sentence in CR-01-00051, filed in state court October 1, 2001, filed in federal court June 12, 2014 (Doc. 50-1)("CR-01-051 J&S")); (ii) the NMCD policy "requires standardized drug screens and outlines the implications to the probationer should they fail a drug test," Reid's Second Supp. at 2 (citing New Mexico Corrections Department PPD Substance Abuse Testing for Offenders, dated August 20, 2013, filed June 12, 2014 (Doc. 50-2)("PPD Substance Abuse Testing")); and (iii) "it is widely known within the corrections industry that there is an overwhelming correlation between people placed on probation and the use of illegal drugs," Reid's Second Supp. at 3 (citing Beth M. Huebner & Jennifer Cobbina, The Effect of Drug Use, Drug Treatment Participation,
The Defendants state that they were "unable to locate authority standing for the proposition that a probationer's violation of a term of his or her probation order is foreseeable (or unforeseeable) as a matter of law." Defendants' Response to Minute Order of June 9, 2014 at 2, filed June 13, 2014 (Doc. 51)("Defendants' Second Supp."). Responding to Reid's Second Supp. on the foreseeability issue, they argue that the Court should not consider the documents that Reid attached as exhibits, including CR-01-051 J&S, Substance Abuse Testing, and Huebner & Cobbina, supra, because Reid did not refer to these documents in the FAC and they "are not `central'" to Reid's claims. Defendants' Second Supp. at 11.
Regarding the Court's second question—whether Reid had to exhaust his state remedies before bringing a § 1983 action—Reid contends that the question "presupposes that the Plaintiff knew that under New Mexico law he could only be placed on probation for five (5) years and that he knew that the 2007 Order of Probation that he was being asked to sign was invalid under New Mexico law and unconstitutional," but that this presupposition "is not correct." Reid's Second Supp. at 3. Reid argues that
Reid's Second Supp. at 3-4 (citing Stipulated Order at 1). Reid explains that, by the time he discovered that he should not have been on probation, "there was no administrative remedy available to him," because he had been discharged from probation, an appeal would be moot, and he could not file a declaratory judgment, "because the State agreed that he had been improperly placed on an extra four (4) years of probation." Reid's Second Supp. at 4 (citing Log from October 17, 2011 Hearing in CR-139, filed in state court October 17, 2011, filed in federal court June 12, 2014 (Doc. 50-5)("Oct. 17, 2011 Log")). Finally, Reid contends that "the Supreme Court and the Tenth Circuit have long held that it is unnecessary to exhaust
Reid's Second Supp. at 6-7.
The Defendants respond that Reid had to exhaust his state remedies before bringing his § 1983 action. See Defendants' Second Supp. at 2. Pointing to Heck v. Humphrey and Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005), the Defendants assert that Reid cannot maintain his § 1983 action, because Judge Purcell's order of probation has not been invalidated; although the FAC states that the parties "stipulated to an order discharging the Plaintiff based on fulfilling the terms of probation," the Defendants argue that
Defendants' Second Supp. at 3 (quoting Heck v. Humphrey, 512 U.S. at 486-87, 114 S.Ct. 2364). The Defendants explain that the Stipulated Order that Reid references in the Complaint and is attached to Reid's Second Supp. does not find that Judge Purcell's order was illegal or invalid, but it "merely `orders' that `it further appearing to the Court that the Defendant is, satisfactorily discharged from Supervised Probation.'" Defendants' Second Supp. at 3-4. In the Defendants' view, the Stipulated Order releasing Reid from supervised release is "not a judicial declaration under Heck that Judge Purcell's June 2007 order of probation was illegal or invalid." Defendants' Second Supp. at 4. The Defendants note that, although Reid is no longer on probation and, thus, does not have a habeas remedy, he cannot avoid Heck v. Humphrey's favorable termination requirement, because, in their view, he did not act diligently: "[T]here is no allegation that plaintiff, during his alleged five years of wrongful probation, ever sought to avail himself of relief through federal habeas or through other state remedies (although he had at least four such mechanisms to do so)." Defendants' Second Supp. at 5 (citing Cohen v. Longshore, 621 F.3d 1311 (10th Cir.2010)("[A] petitioner who has no available remedy in habeas, through no lack of diligence on his part, is not barred by Heck from pursuing a § 1983 claim."
Defendants' Second Supp. at 6. Finally, the Defendants contend that Reid's "position that he can avoid Heck's exhaustion requirement because he was ignorant of his rights under New Mexico law is flatly contradicted by his allegation that in 2007 `Plaintiff questioned the validity of extending his probation any further.'" Defendants' Second Supp. at 11-12 (quoting FAC ¶ 11, at 3). The Defendants emphasize that Reid did not cite any authority supporting his argument that the Stipulated Order "constitutes a declaration of invalidity of Judge Purcell's June 2007 order of probation of the type required by Heck." Defendants' Second Supp. at 12. The Defendants ask the Court not to consider the Oct. 17, 2011 Log, because Reid did not cite to it in the FAC, nor is it central to his claims; further, they contend that it "includes hearsay (and hearsay within hearsay) and is also not the best evidence." Defendants' Second Supp. at 11.
Regarding the Court's third question—whether Garcia, Pautler, and Hatley failed to provide the process described in Morrissey v. Brewer and Gagnon v. Scarpelli by failing to provide a preliminary hearing—Reid notes that the failure to give Reid a hearing within twenty-four hours of incarceration "does not in [and] of itself give rise to a due process claim," Reid's Second Supp. at 5 (citing Petaway v. City of New Haven Police Dep't, 541 F.Supp.2d 504, 512 (D.Conn.2008)(stating that the failure to provide arraignment the day of arrest pursuant to statute did not violate due process)), but explains that he must "demonstrate that the delay was both unreasonable and prejudicial," Reid's Second Supp. at 5. He explains, because the Tenth Circuit has found that a three-month delay does not violate due process when the plaintiff cannot establish prejudice, see Reid's Second Supp. at 5 (citing Paul v. McFadin, 117 F.3d 1428, 1997 WL 407843 (10th Cir.1997)(unpublished)), "[i]t is clear that under no circumstances could the Plaintiff argue that a seven (7) day delay amounts to a due process violation unless he can also demonstrate prejudice," Reid's Second Supp. at 5-6. He argues that
Reid's Second Supp. at 6.
The Defendants respond that "neither Morrissey nor Gagnon specify a minimum
Rule 12(b)(6) authorizes a court to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). "The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). The sufficiency of a complaint is a question of law, and when considering a rule 12(b)(6) motion, a court must accept as true all well—pled factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiff's favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. at 322, 127 S.Ct. 2499 ("[O]nly if a reasonable person could not draw . . . an inference [of plausibility] from the alleged facts would the defendant prevail on a motion to dismiss."); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.2009)("[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pled factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff." (citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006))).
A complaint need not set forth detailed factual allegations, yet a "pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action" is insufficient. Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v.
To survive a motion to dismiss, a plaintiff's complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir.2010). "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556, 127 S.Ct. 1955). "Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007)(emphasis omitted). The Tenth Circuit stated:
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955) (internal citations omitted).
Generally, the sufficiency of a complaint must rest on its contents alone. See Casanova v. Ulibarri, 595 F.3d 1120, 1125 (10th Cir.2010); Gossett v. Barnhart, 139 Fed.Appx. 24, 24 (10th Cir.2005)(unpublished)
The Court has previously ruled that, when a plaintiff references and summarizes statements from defendants in a complaint for the purpose of refuting the statements in the complaint, the Court cannot rely on documents the defendants attach to a motion to dismiss which contain their un-redacted statements. See Mocek v. City of Albuquerque, No. CIV 11-1009 JB/KBM, 2013 WL 312881, at *50-51 (D.N.M. Jan. 14, 2013) (Browning, J.). The Court in Mocek v. City of Albuquerque reasoned that the statements were neither incorporated by reference nor central to the plaintiff's allegations in the complaint, because the plaintiff cited the statements only to attack their reliability and truthfulness. See 2013 WL 312881, at *50-51. Additionally, the Court has ruled that, when determining whether a statute of limitations has run in an action alleging fraud and seeking subrogation from a defendant, it may not use interviews and letters attached to a motion to dismiss which evidence that a plaintiff was aware of the defendant's alleged fraud before the statutory period expired. See Great Am. Ins. Co. v. Crabtree, No. CIV 11-1129 JB/KBM, 2012 WL 3656500, at *3, *22-23 (D.N.M. Aug. 23, 2012) (Browning, J.). The Court in Great American Insurance Co. v. Crabtree determined that the documents did not fall within any of the Tenth Circuit's exceptions to the general rule that a complaint must rest on the sufficiency of its contents alone, as
In Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), the Supreme Court held "that habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983." Heck v. Humphrey, 512 U.S. at 481, 114 S.Ct. 2364 (citing Preiser v. Rodriguez, 411 U.S. at 488-90, 93 S.Ct. 1827). Justice Scalia
Heck v. Humphrey, 512 U.S. at 486-87, 114 S.Ct. 2364 (footnotes omitted) (emphasis in original).
The Supreme Court made it clear that § 1983 does not require a § 1983 plaintiff to first exhaust state remedies:
512 U.S. at 489, 114 S.Ct. 2364. Justice Thomas, in a concurring opinion, explained the benefit of using the favorable-termination requirement in §1983 cases:
512 U.S. at 498, 114 S.Ct. 2364 (Thomas, J., concurring). He warned, however, that the holding could cause problems for "individuals not `in custody' for habeas purposes'":
512 U.S. at 500, 114 S.Ct. 2364 (Thomas, J., concurring).
In Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005), the Supreme Court reviewed its cases related to when a prisoner in state custody may pursue a § 1983 claim, and when the prisoner must instead seek federal habeas corpus relief or appropriate state relief. 544 U.S. at 78, 125 S.Ct. 1242 (citing Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Wolff v. McDonnell,
544 U.S. at 81-82, 125 S.Ct. 1242 (emphasis in original). The Supreme Court applied these principles in Wilkinson v. Dotson to conclude that the plaintiffs, who were challenging the state procedures used to deny parole eligibility and parole suitability, could bring their § 1983 claims, because "neither prisoner's claim would necessarily spell speedier release," and, thus, "neither lies at `the core of habeas corpus.'" 544 U.S. at 82, 125 S.Ct. 1242.
544 U.S. at 82, 125 S.Ct. 1242 (emphasis in original).
One question remaining after Heck v. Humphrey is "whether the Heck doctrine pertains even when the § 1983 claimant cannot pursue federal habeas corpus because she is not in custody, either because the claimant had never been incarcerated or because a sentence of incarceration had expired." Martin A. Schwartz, Section 1983 Litigation Claims and Defenses § 10.06[F] Section 1983 and Federal Habeas Corpus: Solving Preiser-Heck-Edwards Puzzles at 10-68.4 to-68.5 (4th ed. 2012-1 Supp.). In Cohen v. Longshore, 621 F.3d 1311 (10th Cir.2010), the Tenth Circuit recognized a circuit split on the issue, but ultimately held that "a petitioner who has no available remedy in habeas, through no lack of diligence on his part, is not barred by Heck from pursuing a § 1983 claim." 621 F.3d at 1317. In that case, the Tenth Circuit reviewed de novo
Cohen v. Longshore, 621 F.3d at 1316. Noting that the Supreme Court has not settled the issue, see 621 F.3d at 1316 (citing Muhammad v. Close, 540 U.S. 749, 752 n. 2, 124 S.Ct. 1303, 158 L.Ed.2d 32 (2004) (stating that "[m]embers of the Court have expressed the view that unavailability of habeas for other reasons may also dispense with the Heck requirement," but that "[t]his case is no occasion to settle the issue")), the Tenth Circuit stated that, "in light of the fact that Heck involved a petitioner who was still incarcerated," it was "not persuaded that Heck must be applied to petitioners without a habeas remedy," 621 F.3d at 1316. The Tenth Circuit concluded that "a petitioner who has no available remedy in habeas, through no lack of diligence on his part, is not barred by Heck from pursuing a § 1983 claim," and held that the district court "erred in holding that Plaintiffs false imprisonment claim lacked merit where Plaintiffs prior attempt to obtain a favorable termination in habeas was dismissed based on mootness." 621 F.3d at 1317. See Carbajal v. Hotsenpiller, 524 Fed.Appx. 425, 428 (10th Cir.2013) (unpublished) ("A plaintiff's inability to obtain habeas relief lifts the Heck bar only if that `inability is not due to the petitioner's own lack of diligence.'"). In Carbajal v. Hotsenpiller, 524 Fed.Appx. 425 (10th Cir. 2013) (unpublished), the Tenth Circuit applied the rule from Cohen v. Longshore and affirmed a district court's application of Heck v. Humphrey to bar the plaintiffs § 1983 claim. See 524 Fed.Appx. at 428. Even though the plaintiff was not in custody and thus could not pursue a habeas remedy, the Tenth Circuit "agree[d] with the district court that [the plaintiff's] actions evince a lack of diligence," because "the complaint is clear that Carbajal was aware of the claimed defects in the investigation that led to his convictions in 2000, but only set out to investigate in 2010." 524 Fed.Appx. at 428.
The Heck v. Humphrey bar also "applies to proceedings that call into question the fact or duration of parole or probation." Crow v. Penry, 102 F.3d 1086, 1087 (10th Cir.1996) (per curiam). In Crow v. Penry, the plaintiff brought a suit under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ("Bivens"),
Crow v. Penry, 102 F.3d at 1087.
When Heck v. Humphrey bars a claim, "the dismissal should be without prejudice." Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir.1996). See McDow v. Gonzales, CIV 07-1266 JB/WPL, 2008 WL 5979833 (D.N.M. Sept. 30, 2008) (Browning, J.) ("Although a dismissal under Rule 12(b)(6) for failure to state a claim is generally with prejudice, when a § 1983 claim is dismissed under Heck, the dismissal is without prejudice." (emphasis in original)), aff'd, 330 Fed.Appx. 765 (10th Cir.2009).
Section 1983 of Title 42 of the United States Code provides:
"Under Section 1983, liability attaches only to conduct occurring `under color of law.'" Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir.1995). The under-color-of-state-law requirement is a "jurisdictional requisite for a § 1983 action, which . . . furthers the fundamental goals of preserving an area of individual freedom by limiting the reach of federal law . . . and avoiding imposing on the state, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed." Jojola v. Chavez, 55 F.3d 488, 492 (10th Cir.1995). "The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power `possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" West v. Atkins, 487 U.S. at 49, 108 S.Ct. 2250 (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941)). "The authority with which the defendant is allegedly `clothed' may be either actual or apparent." Jojola v. Chavez, 55 F.3d at 493. Accordingly, at a base level, to find that an action was taken under color of state law, the court must find that "`the conduct allegedly causing the deprivation of a federal right' must be `fairly attributable to the State.'" Gallagher v. Neil Young Freedom Concert, 49
In the context of a public employee, the Tenth Circuit has directed that, while "`state employment is generally sufficient to render the defendant a state actor . . . . [,]' at the same time, it is `well settled that an otherwise private tort is not committed under color of law simply because the tortfeasor is an employee of the state.'" Jojola v. Chavez, 55 F.3d at 493 (quoting Lugar v. Edmondson Oil Co., 457 U.S. at 935-36 n. 18, 102 S.Ct. 2744; Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir.1995)). Thus, "before conduct may be fairly attributed to the state because it constitutes action `under color of state law,' there must be `a real nexus' between the employee's use or misuse of their authority as a public employee, and the violation allegedly committed by the defendant." Jojola v. Chavez, 55 F.3d at 493. What constitutes the required real nexus, however, is not completely clear. As the Tenth Circuit has stated, whether there is a real nexus in a particular case depends on the circumstances:
David v. City & Cnty. of Denver, 101 F.3d 1344, 1353 (10th Cir.1996)(internal citations omitted)(quoting Martinez v. Colon, 54 F.3d 980, 986 (1st Cir.1995)).
Government actors may be liable for the constitutional violations that another committed, if the actors "set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights," thus establishing the "requisite causal connection" between the government actor's conduct and a plaintiffs constitutional deprivations. Trask v. Franco, 446 F.3d at 1046. The Tenth Circuit has explained that § 1983 liability should be "`read against the background of tort liability that makes a man responsible for the natural consequences of his actions.'" Martinez v. Carson, 697 F.3d at 1255 (quoting Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), overruled in part by Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). "Thus, Defendants are liable for the harm proximately caused by their conduct." Martinez v. Carson, 697 F.3d at 1255 (citing Trask v. Franco, 446 F.3d at 1046). As the Court has previously concluded: "[A] plaintiff who establishes liability for deprivations of constitutional rights actionable under 42 U.S.C. § 1983 is entitled to recover compensatory damages for all injuries suffered as a consequence of those deprivations. The recovery should be guided by common-law tort principles—including principles of causation. . . ." Train v. City of Albuquerque, 629 F.Supp.2d 1243, 1251 (D.N.M.2009)(Browning, J.).
The Tenth Circuit has found liability for those defendants who proximately caused an injury complained-of under § 1983 and stated that the fact that the "conduct of other people may have concurrently caused the harm does not change the outcome as to [the defendant]," so long as there was not a superseding-intervening cause of a plaintiffs harm. Lippoldt v. Cole, 468 F.3d 1204, 1220 (10th Cir.2006).
Trask v. Franco, 446 F.3d at 1046. Thus, in the context of a claim under the Fourth Amendment, the Tenth Circuit has held that government actors "may be held liable if the further unlawful detention and arrest would not have occurred but for their conduct and if there were no unforeseeable intervening acts superseding their liability." Martinez v. Carson, 697 F.3d at 1255. The Tenth Circuit gave an example of a superseding intervening cause, quoting the Honorable Samuel J. Alito, then-Circuit Judge for the United States Court of Appeals for the Third Circuit, now-Associate Justice for the Supreme Court:
Trask v. Franco, 446 F.3d at 1046 (quoting Bodine v. Warwick, 72 F.3d at 400). Additionally, "`[f]oreseeable intervening forces are within the scope of the original risk, and . . . will not supersede the defendant's responsibility." Trask v. Franco, 446 F.3d at 1047 (quoting W. Page Keeton et al., Prosser and Keeton on Torts § 44, at 303-04 (5th ed.1984)). If
Trask v. Franco, 446 F.3d at 1047 (citing Restatement (Second) of Torts § 453 cmt. b (1965)).
The Tenth Circuit has held that supervisors are not liable under 42 U.S.C. § 1983 unless there is "`an affirmative link. . . between the constitutional deprivation and either the supervisor's personal participation, [] exercise of control or direction, or [] failure to supervise.'" Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009)(quoting Green v. Branson, 108 F.3d 1296, 1302 (10th Cir.1997))(internal alterations omitted). Because supervisors can
The Tenth Circuit has recognized that Ashcroft v. Iqbal limited, but did not eliminate, supervisory liability for government officials based on an employee's or subordinate's constitutional violations. See Garcia v. Casuas, 2011 WL 7444745, at *25-26 (citing Dodds v. Richardson, 614 F.3d 1185 (10th Cir.2010)). The language that may have altered the landscape for supervisory liability in Ashcroft v. Iqbal is as follows: "Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." 556 U.S. at 676, 129 S.Ct. 1937. The Tenth Circuit in Dodds v. Richardson held:
614 F.3d at 1199. The Tenth Circuit noted that Ashcroft v. Iqbal "does not purport to overrule existing Supreme Court precedent," but stated that "Iqbal may very well have abrogated § 1983 supervisory liability as we previously understood it in this circuit in ways we do not need to address to resolve this case." Dodds v. Richardson, 614 F.3d at 1200. It concluded that Ashcroft v. Iqbal did not alter "the Supreme Court's previously enunciated § 1983 causation and personal involvement analysis." Dodds v. Richardson, 614 F.3d at 1200. The Tenth Circuit, based on this conclusion, set forth a test for supervisory liability under § 1983 after Ashcroft v. Iqbal:
Dodds v. Richardson, 614 F.3d at 1199-1200 (citing Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir.2002)). The Tenth Circuit noted, however: "We do not mean to imply that these are distinct analytical prongs, never to be intertwined." 614 F.3d at 1200 n. 8. Relying on the Supreme Court's opinion in Bd. of Cnty. Comm'rs v. Brown, the Tenth Circuit reasoned that two of the prongs often, if not always, are sufficient proof that the third prong has been met also:
Dodds v. Richardson, 614 F.3d at 1200 n.8 (quoting Bd. of Cnty. Comm'rs v. Brown, 520 U.S. at 404-05, 117 S.Ct. 1382) (internal quotation marks omitted). The Tenth Circuit noted that "[w]e think the same logic applies when the plaintiff sues a defendant-supervisor who promulgated, created, implemented or possessed responsibility for the continued operation of a policy that itself violates federal law." Dodds v. Richardson, 614 F.3d at 1200 n.8. Thus, the Tenth Circuit reduced the test to what can be seen as a two-part test for supervisor liability, requiring the plaintiff to prove "an `affirmative' link . . . between the unconstitutional acts by their subordinates and their `adoption of any plan or policy . . . — express or otherwise—showing their authorization or approval of such misconduct.'" Dodds v. Richardson, 614 F.3d at 1200-01 (quoting Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976)).
A municipality will not be held liable under § 1983 solely because its officers inflicted injury. See Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir.2006). Rather, to establish municipal liability under § 1983, a plaintiff must demonstrate: (i) that an officer committed an underlying constitutional violation; (ii) that a municipal policy or custom exists; and (iii) that there is a direct causal link between the policy or custom and the injury alleged. See Graves v. Thomas, 450 F.3d at 1218. When a claim is brought against a municipality for failing to train its officers adequately, the plaintiff must show that the municipality's inaction was the result of deliberate indifference to the rights of its inhabitants. See Graves v. Thomas, 450 F.3d at 1218.
In cases against federal officials for violating the Constitution or of acting outside their federal statutory authority, "the officials `in general are not absolutely immune . . . unless they are performing a narrowly defined judicial, executive, or legislative function.'" Tripati v. U.S.I.N.S., 784 F.2d at 347 (alterations in original) (quoting Strothman v. Gefreh, 739 F.2d 515, 520 (10th Cir.1984)). The Supreme Court takes a "functional approach" to identify the "governmental functions that were historically viewed as so important and vulnerable to interference by means of litigation that some form of absolute immunity from civil liability was needed to ensure that they are performed `with independence and without fear of consequences.'" Rehberg v. Paulk, ___ U.S. ___, 132 S.Ct. 1497, 1503, 182 L.Ed.2d 593 (2012) (quoting Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967)) (secondary quotation marks omitted).
Rehberg v. Paulk, 132 S.Ct. at 1503 (citations omitted). The Tenth Circuit has also identified that officials may be absolutely immune for some functions, but only qualifiedly immune for others:
Mee v. Ortega, 967 F.2d 423, 425 (10th Cir.1992) (citations omitted).
"Judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly." Stump v. Sparkman, 435 U.S. 349, 355-56, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). That same immunity continues even if the judge's "exercise of authority is flawed by the commission of grave procedural errors." Stump v. Sparkman, 435 U.S. at 359, 98 S.Ct. 1099. The Supreme Court has emphasized that a judge's immunity from § 1983 liability "is overcome in only two sets of circumstances. First, a judge is not immune from liability for nonjudicial acts, i.e., actions not taken in the judge's judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction." Mireles v. Waco, 502 U.S. 9, 11-12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991) (citations omitted). The Supreme Court has also held that absolute judicial immunity was not affected or abolished "by § 1983, which makes liable `every person' who under color of law deprives another person of his civil rights." Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), overruled in part on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
Absolute judicial immunity is immunity from suit altogether. See Mireles v. Waco, 502 U.S. at 11, 112 S.Ct. 286 (citing Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). Judges are not entitled to absolute judicial immunity for non judicial acts, i.e., acts taken that are not in the judge's judicial capacity. See Mireles v. Waco, 502 U.S. at 11, 112 S.Ct. 286 (citing Forrester v. White, 484 U.S. 219, 227-229, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988); Stump v. Sparkman,
Green v. Seymour, 59 F.3d 1073, 1078 (10th Cir.1995) (citing Pulliam v. Allen, 466 U.S. 522, 537-38, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984)).
Judges acting in regards to state disciplinary issues sometimes act in a judicial capacity and sometimes act in a legislative capacity. A judge acts in a judicial capacity when hearing appeals from disciplinary proceedings. See Supreme Court v. Consumers Union of United States, Inc., 446 U.S. at 734, 100 S.Ct. 1967. Because "[d]isciplinary rules are rules of general application and are statutory in character," because "[t]hey act not on parties litigant but on all those who practice law in [a state]," and because "[t]hey do not arise out of a controversy which must be adjudicated, but instead out of a need to regulate conduct for the protection of all citizens," a court acts in a legislative capacity when it enacts disciplinary rules. Id. at 731, 100 S.Ct. 1967 (citation and internal quotations omitted).
"Absolute immunity has long been available to protect judges from liability for acts performed in their judicial capacity," and, "[o]ver time the defense has been extended to `certain others who perform functions closely associated with the judicial process.'" Dahl v. Charles F. Dahl, M.D., P.C. Defined Ben. Pension Trust, 744 F.3d 623, 630 (10th Cir.2014) (quoting Cleavinger v. Saxner, 474 U.S. 193, 199, 200, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985)). "Just as judges acting in their judicial capacity are absolutely immune from liability under section 1983, `official[s] charged with the duty of executing a facially valid court order enjoy[] absolute immunity from liability for damages in a suit challenging conduct prescribed by that order.'" Turney v. O'Toole, 898 F.2d 1470, 1472 (10th Cir.1990) (alterations in original) (citations omitted) (quoting Valdez v. City & Cnty. of Denver, 878 F.2d at 1286). See Henriksen v. Bentley, 644 F.2d 852, 855 (10th Cir.1981) (stating that absolute immunity applies where an official acts "under the command of a court decree or explicit instructions from a judge"). "[I]t is simply unfair to spare the judges who give orders while punishing the officers who obey them." Valdez v. City & Cnty. of Denver, 878 F.2d at 1289. "Enforcing a court order or judgment is intrinsically associated with a judicial proceeding. If losing parties were free to challenge the will of the court by threatening its officers with harassing litigation, the officers might neglect the execution of their sworn duties." Valdez v. City & Cnty. of Denver, 878 F.2d at 1288 (citation omitted).
In Valdez v. City and County of Denver, the Tenth Circuit held that "an
878 F.2d at 1289. Although "absolute immunity always comes at a price," such that an individual "wrongly deprived of liberty or property by a judge's decision will be unable to pursue a remedy under the civil rights statute," the aggrieved party is not without recourse. 878 F.2d at 1289. "In most cases, the defendant should appeal: The proper procedure for a party who wishes to contest the legality of a court order enforcing a judgment is to appeal that order and the underlying judgment, not to sue the official responsible for its execution." 878 F.2d at 1289-90 (internal quotation marks omitted).
There are limits, however, to "how unlawful an order can be and still immunize the officer executing it." Moss v. Kopp, 559 F.3d 1155, 1163 (10th Cir. 2009) (citing Turney v. O'Toole, 898 F.2d at 1474). For the state official to be entitled to quasi-judicial immunity, "the judge issuing the disputed order must be immune from liability in his or her own right, the officials executing the order must act within the scope of their own jurisdiction,
When an official, in bad faith, obtains the order under which he or she claims immunity, that order does not provide the same quasi-judicial immunity as an order which the official played no part in procuring. See Moss v. Kopp, 559 F.3d at 1163 n.10; Turney v. O'Toole, 898 F.2d at 1473 n.3 (citing Guerro v. Mulhearn, 498 F.2d 1249, 1256 (1st Cir.1974)) (refusing to extend absolute immunity to police officers who acted pursuant to a wiretap court order when the officers allegedly obtained the wiretap order "in bad faith and on the basis of perjured testimony").
The Tenth Circuit has recognized that "officials in administrative hearings can claim the absolute immunity that flows to judicial officers if they are acting in a quasi-judicial fashion." Guttman v. Khalsa, 446 F.3d 1027, 1033 (10th Cir.2006) (citing Butz v. Economou, 438 U.S. 478, 514, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978)). For an official at an administrative hearing to enjoy absolute immunity, "(a) the officials' functions must be similar to those involved in the judicial process, (b) the officials' actions must be likely to result in damages lawsuits by disappointed parties, and (c) there must exist sufficient safeguards in the regulatory framework to control unconstitutional conduct." Guttman v. Khalsa, 446 F.3d at 1033 (quoting Horwitz v. State Bd. of Med. Examiners of State of Colo., 822 F.2d 1508, 1513 (10th Cir.1987)) (internal quotation marks omitted).
In Guttman v. Khalsa, a doctor who suffered from depression and post-traumatic stress disorder had appeared before the Impaired Physicians Committee of the New Mexico Board of Medical Examiners to respond to a series of complaints about his professional conduct. See 446 F.3d at 1030. The Committee in Guttman v. Khalsa issued a "Notice of Contemplated Action and Order of Summary Suspension" of the doctor's medical license based on alleged mental illness and lying to the Committee. 446 F.3d at 1030. The New Mexico Board of Medical Examiners then held a hearing, during which one of the defendants acted as Administrative Prosecutor. See 446 F.3d at 1030. The New Mexico Board of Medical Examiners in Guttman v. Khalsa revoked the doctor's medical license pursuant to its statutory authority to do so. See 446 F.3d at 1030.
The doctor in Guttman v. Khalsa appealed the decision to the Seventh Judicial District of New Mexico. See 446 F.3d at 1030. The Seventh Judicial District of New Mexico denied the appeal, and the doctor then appealed to the Court of Appeals of New Mexico. See 446 F.3d at 1030. After the Court of Appeals of New Mexico affirmed, the doctor filed a petition for certiorari with the Supreme Court of New Mexico. See 446 F.3d at 1030. Before the Supreme Court of New Mexico could act on the petition, the doctor filed a lawsuit in federal court, alleging, among other things, violations of his constitutional rights. See 446 F.3d at 1030.
The Tenth Circuit in Guttman v. Khalsa
The Tenth Circuit in Guttman v. Khalsa also relied on an earlier case: Horwitz v. State Board of Medical Examiners of State of Colorado, 822 F.2d 1508 (10th Cir.1987). In Horwitz v. State Board of Medical Examiners of State of Colorado, the Tenth Circuit concluded that members of the State Board of Medical Examiners for the State of Colorado enjoyed absolute immunity for actions it took in filing a formal complaint against a doctor, and in temporarily suspending his right to practice medicine pending investigations and hearings. See 822 F.2d at 1510, 1515. The Tenth Circuit in Horwitz v. State Board of Medical Examiners of State of Colorado reasoned that the defendant Board members were performing adjudicatory and prosecutorial functions. See 822 F.2d at 1515. The Tenth Circuit in Horwitz v. State Board of Medical Examiners of State of Colorado also noted:
822 F.2d at 1515. Finally, the Tenth Circuit pointed out the Board members' functions, observing that Board members
822 F.2d at 1515.
Although certain officers enjoy immunity from suit for acts taken in a quasi-judicial setting, the Supreme Court has held that court reporters do not enjoy such immunity. Rejecting a court reporter's claim of absolute immunity, the Supreme Court stated: "We are also unpersuaded by the contention that our functional approach to immunity . . . requires that absolute immunity be extended to court reporters because they are part of the judicial function." Antoine v.
Antoine v. Byers & Anderson, Inc., 508 U.S. at 435-36, 113 S.Ct. 2167 (footnote omitted).
In light of this understanding of judicial immunity, the Supreme Court found that the function that court reporters perform is not one that would lead to a grant of immunity. See Antoine v. Byers & Anderson, Inc., 508 U.S. at 436, 113 S.Ct. 2167. The Supreme Court reasoned that court reporters "are afforded no discretion" in carrying out their duty and that they are "not absolutely immune because their duties are ministerial, not discretionary in nature." Antoine v. Byers & Anderson, Inc., 508 U.S. at 436, 113 S.Ct. 2167 (citations omitted) (internal quotation marks omitted).
The Court has also drawn distinctions between when a person is acting in a judicial role, such that they are entitled to quasi-judicial immunity, and when a person in a quasi-judicial setting plays a merely ministerial role. See Duprey v. Twelfth Judicial Dist. Court, 760 F.Supp.2d 1180, 1204 (D.N.M.2009) (Browning, J.). In Duprey v. Twelfth Judicial District Court, the Court found that the state defendant who acted as chairperson of the judicial grievance board was entitled to absolute immunity, because his function was similar to that of an administrative law judge in a quasi-judicial setting. See 760 F.Supp.2d at 1204. The Court found that the director of human resources for the New Mexico Administrative Office of the Courts was not entitled to absolute immunity, because her role was ministerial and mechanical. See 760 F.Supp.2d at 1204. In analyzing each defendant's function, the Court focused on participation in the deliberative process and the exercise of independent judgment. See 760 F.Supp.2d at 1205. The Court determined that, because the human resources director played a ministerial role and did not act at the direction of a judge, she was not entitled to judicial immunity. See 760 F.Supp.2d at 1208 ("An individual whose job at a judicial proceeding is to run a tape recorder is not one who needs to be able to act according to her own convictions."). See also Braverman v. New Mexico, No. 11-0829, 2011 WL 6013587, at *20 (D.N.M. Oct. 19, 2011) (Browning, J.) (finding that judicial immunity probably protected a state judge and special master from suit when denying a motion for a temporary restraining order).
Whether a probation or parole officer is entitled to absolute immunity or qualified immunity depends on whether the officer is performing a function that is quasi-judicial
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)). The Supreme Court deems it "untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials." Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). "The qualified immunity analysis is the same whether the claims are brought under Bivens or pursuant to the post-Civil War Civil Rights Acts." Breidenbach v. Bolish, 126 F.3d 1288, 1291 (10th Cir.1997), overruled on other grounds as recognized in Currier v. Doran, 242 F.3d 905 (10th Cir.2001).
Camreta v. Greene, ___ U.S. ___, 131 S.Ct. 2020, 2030-31, 179 L.Ed.2d 1118 (2011).
Issues of qualified immunity are best resolved at the "earliest possible stage in litigation." Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 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) (per curiam)). "If qualified immunity is to mean anything, it must mean that public employees who are just doing their jobs are generally immune from suit." Lewis v. Tripp, 604 F.3d 1221, 1230 (10th Cir.2010).
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, 555 U.S. at 231, 129 S.Ct. 808 (quoting Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. 2727). Qualified immunity also shields officers who have "reasonable, but mistaken beliefs" and operates to protect officers from the sometimes "hazy border[s]" of the law. Saucier v. Katz, 533 U.S. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), receded from by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). When a defendant asserts qualified immunity, the plaintiff must demonstrate: (i) that the defendant's actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged misconduct. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.2009).
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 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." 555 U.S. at 236, 129 S.Ct. 808. The Supreme Court also noted that, while no longer mandatory, the protocol outlined in Saucier v. Katz—by which a court first decides if the defendant's actions violated the constitution, and then the court determines if the right violated was clearly established—will often be beneficial. See Pearson v. Callahan, 555 U.S. at 241, 129 S.Ct. 808. In rejecting the prior mandatory approach, the Supreme Court recognized that "[t]here are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right," and that such an approach burdens district court and courts of appeals with "what may seem to be an essentially academic exercise." 555 U.S. at 237, 129 S.Ct. 808. The Supreme Court also recognized that the prior mandatory approach "departs from the general rule of constitutional avoidance and runs counter to the older, wiser judicial counsel not to pass on questions of constitutionality unless such adjudication is unavoidable." 555 U.S. at 241, 129 S.Ct. 808 (alterations omitted) (internal quotation marks omitted). See Reichle v. Howards, ___U.S. ___, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (affirming Pearson v. Callahan's procedure and noting that deciding qualified immunity issues on the basis of a right being not "clearly established" by prior case law "comports with our usual reluctance to decide constitutional questions unnecessarily").
The Supreme Court recognizes seven circumstances where district courts should proceed directly to and "should address only" the clearly established prong of the qualified immunity analysis: when (i) the first, constitutional violation question "is so factbound that the decision provides little guidance for future cases"; (ii) "it appears that the question will soon be decided by a higher court"; (iii) deciding the constitutional question requires "an uncertain interpretation of state law"; (iv) "qualified immunity is asserted at the pleading stage" and "the precise factual basis for the . . . claim . . . may be hard to identify"; (v) tackling the first element "may create a risk of bad decisionmaking" because of inadequate briefing; (vi) discussing both elements risks "bad decisionmaking," because the court is firmly convinced the law is not clearly established and is thus inclined to give little thought to the existence of the constitutional right; or (vii) the doctrine of "constitutional avoidance" suggests the wisdom of passing on the first constitutional question when "it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right." Kerns v. Bader, 663 F.3d 1173, 1180-81 (10th Cir.2011) (quoting Pearson v. Callahan, 555 U.S. at 236-42, 129 S.Ct. 808). Regarding the last of these seven circumstances, the Supreme Court has clarified that courts may "avoid avoidance" and address the first prong before the second prong in cases involving a recurring fact pattern, where guidance on the constitutionality of the challenged conduct is necessary and the conduct is likely only to face challenges in the qualified immunity context. Camreta v. Greene, 131 S.Ct. at 2031-32. See Kerns v. Bader, 663 F.3d at 1181.
In evaluating whether the right was clearly established, a district court considers whether the right was sufficiently clear that a reasonable government employee 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 1323, 1327 (10th Cir.2007). "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.'" Lobozzo v. Colo. Dep't of Corr., 429 Fed. Appx. 707, 710 (10th Cir.2011) (unpublished) (quoting Zweibon v. Mitchell, 720 F.2d 162, 172-73 (D.C.Cir.1983)).
"Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Currier v. Doran, 242 F.3d 905, 923 (10th Cir.2001). On the other hand, the Supreme Court has observed that it is generally not necessary to find a controlling decision declaring the "very action in question . . . unlawful." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). "In determining whether the right was `clearly established,' the court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether `the contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir.2001) (alteration in original) (quoting Saucier v. Katz, 533 U.S. at 202, 121 S.Ct. 2151). A court should inquire "whether the law put officials on fair notice that the described conduct was unconstitutional" rather than engage in "a scavenger hunt for cases with precisely the same facts." Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir.2004).
The Supreme Court has clarified that the clearly established prong of the qualified immunity test is a very high burden for the plaintiff: "A Government official's conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Ashcroft v. al-Kidd, 131 S.Ct. at 2083. "In other words,
The Tenth Circuit held in Kerns v. Bader that, although "a case on point isn't required if the impropriety of the defendant's conduct is clear from existing case law," the law is not clearly established where "a distinction might make a constitutional difference." 663 F.3d at 1188 (emphasis in original). In Kerns v. Bader, dealing with the search of a home, the Tenth Circuit explained that the relevant question "wasn't whether we all have some general privacy interest in our home," but "whether it was beyond debate in 2005 that the officers' entry and search lacked legal justification." 663 F.3d at 1183 (emphasis added). Earlier Tenth Circuit cases, clarifying the level of generality at which a legal rule must be defined, applied a sliding scale to determine when the law is clearly established. See Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir.2007) ("The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation."). "[W]hen an officer's violation . . . is particularly clear. . ., [the Tenth Circuit] does not require a second decision with greater specificity to clearly establish the law." Casey v. City of Fed. Heights, 509 F.3d at 1284. Furthermore, "general statements of the law are not inherently incapable of giving fair and clear warning. . . ." Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).
A plaintiff must plead "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R.Civ.P. 8(a)(2). The "degree of specificity necessary to establish plausibility and fair notice, and therefore the need to include sufficient factual allegations, depends on context:. . . . Fair notice under Rule 8(a)(2) depends on the type of case." Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (citing Phillips v. County of Allegheny, 515 F.3d 224, 231-232 (3d Cir.2008)). Although the same standard applies "in evaluating dismissals in qualified immunity cases as to dismissals generally, complaints in § 1983 cases against individual government actors pose a greater likelihood of failures in notice and plausibility because they typically include complex claims against multiple defendants." Robbins v. Oklahoma, 519 F.3d at 1249 (quoting Shero v. City of Grove, 510 F.3d 1196, 1200 (10th Cir.2007)) (internal quotations omitted). The Tenth Circuit has articulated
Robbins v. Oklahoma, 519 F.3d at 1249-1250 (emphasis in original).
The Fourteenth Amendment states: "No State shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV. The Due Process Clause encompasses two distinct forms of protection: (i) procedural due process, which requires a state to employ fair procedures when depriving a person of a protected interest; and (ii) substantive due process, which guarantees that a state cannot deprive a person of a protected interest for certain reasons. See, e.g., Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845-46, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). "Under either form of protection, however, a person must have a protected interest in either life, liberty, or property." Chavez-Rodriguez v. City of Santa Fe, No. CIV 07-0633, 2008 WL 5992271, at *6 (D.N.M. Oct. 9, 2008) (Browning, J.). The Tenth Circuit prescribes a two-step inquiry in determining whether an individual's procedural due-process rights were violated: (i) "`Did the individual possess a protected property interest to which due process protection was applicable?'"; and (ii) "`Was the individual afforded an appropriate level of process?'" Camuglia v. City of Albuquerque, 448 F.3d 1214, 1219 (10th Cir.2006) (quoting Clark v. City of Draper, 168 F.3d 1185, 1189 (10th Cir.1999)).
"The Constitution does not create or define the contours of `liberty' or `property,' the `broad and majestic terms' enshrined in the Fourteenth Amendment." Farthing v. City of Shawnee, Kan., 39 F.3d 1131, 1135 (10th Cir.1994) (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577, 92 S.Ct. 2701. "Such an interest arises not from the Due Process Clause of the Constitution itself, but is `created by independent sources such as a state or federal statute, a municipal charter or ordinance, or an implied or express contract.'" Teigen v. Renfrow, 511 F.3d 1072, 1079 (10th Cir.2007). See Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) ("[Liberty and property] interests attain . . . constitutional status by virtue of the fact that they have been initially recognized and protected by state law.").
Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577, 92 S.Ct. 2701. See Farthing v.
"[O]nce it is determined that the Due Process Clause applies, `the question remains what process is due.'" Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (citing Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). "An essential principle of due process is that a deprivation of life, liberty, or property `be preceded by notice and opportunity for hearing appropriate to the nature of the case.'" Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542, 105 S.Ct. 1487 (citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). "[D]ue process is flexible and calls [only] for such procedural protections as the particular situation demands." Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (internal quotation marks and brackets omitted). The Supreme Court has described that
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542, 545, 105 S.Ct. 1487 (footnote omitted) (citations and internal quotation marks omitted). The United States Court of Appeals for the Second Circuit has stated:
United States v. Abuhamra, 389 F.3d 309, 318 (2d Cir.2004). The hearing required depends on: (i) the nature of the private interest at stake; (ii) the risk of erroneous deprivation given the procedures already guaranteed, and whether additional procedural safeguards would prove valuable; and (iii) the government's interest and the burdens that additional procedures might impose. See Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. 893. For example, "[w]here . . . the state must act quickly, a meaningful postdeprivation hearing is adequate."
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. It also commands that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. In determining whether a Fourth Amendment violation has occurred, courts must "assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted." United States v. Jones, ___ U.S. ___, 132 S.Ct. 945, 950, 181 L.Ed.2d 911 (2012) (Scalia, J.) (alteration in original) (quoting Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (Scalia, J.)).
"Not all searches require a warrant. The hallmark of the Fourth Amendment is reasonableness." United States v. Harmon, 785 F.Supp.2d 1146, 1157 (D.N.M.2011) (Browning, J.). See United States v. McHugh, 639 F.3d 1250, 1260 (10th Cir.2011) ("[T]he ultimate touchstone of the Fourth Amendment is `reasonableness.'") (quoting Brigham City, Utah v. Stuart, 547 U.S. 398, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006)). "In the criminal context, reasonableness usually requires a showing of probable cause." Herrera v. Santa Fe Pub. Sch., 792 F.Supp.2d 1174, 1184 (D.N.M.2011) (Browning, J.) (quoting Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 828, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002)). The Supreme Court has stated in the law enforcement context that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (footnotes omitted).
The defendant in United States v. Jones was suspected of drug trafficking, and a joint Federal Bureau of Investigation and District of Columbia Metropolitan Police Department task force obtained a warrant authorizing installation in Washington, D.C., within ten days, of a Global Positioning System device to the defendant's car. See 132 S.Ct. at 948. On the eleventh day, task force agents attached the GPS device to the bottom of the defendant's car while the car was in Maryland. The agents then used the GPS device to track the defendant's movements over the next twenty-eight days, replacing the battery once, and collecting over two-thousand pages of data sent from the device. See 132 S.Ct. at 948.
The Honorable Antonin G. Scalia, Associate Justice of the Supreme Court, writing for the majority, in which Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor joined, held that "the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a `search.'" 132 S.Ct. at 949. Justice
Justice Scalia reasoned that the Fourth Amendment's text supports taking a property law based approach to determine whether there is a search, but did not shy away from the fact that, in recent history, the Supreme Court had deviated from this approach:
The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to "the right of the people to be secure against unreasonable searches and seizures"; the phrase "in their persons, houses, papers, and effects" would have been superfluous.
132 S.Ct. at 949-50.
The United States had contended that, under the "Harlan standard"—i.e., the Katz v. United States reasonable-expectation-of-privacy approach—"no search occurred here, since Jones had `no reasonable expectation of privacy' in the area of the Jeep accessed by the Government agents (its underbody) and in the locations of the Jeep on the public roads, which were visible to all." 132 S.Ct. at 950. Justice Scalia concluded, however, that the Supreme Court "need not address the Government's contentions" in relation to the Katz v. United States reasonable-expectation-of-privacy test analysis, because the trespass-based search approach, which existed at the time of the Fourth Amendment's adoption, disposed of the issue:
132 S.Ct. at 950-51 (some alteration in original) (footnotes omitted).
In her concurrence, Justice Sotomayor agreed that "the trespassory test applied in the majority's opinion reflects an irreducible constitutional minimum: When the Government physically invades personal property to gather information, a search occurs. The reaffirmation of that principle suffices to decide this case." 132 S.Ct. at 955 (Sotomayor, J., concurring). She continued:
132 S.Ct. at 954-55 (Sotomayor, J., concurring). Justice Sotomayor's concurrence focused on the reality, in her view, that,
132 S.Ct. at 955 (Sotomayor, J., concurring) (alteration in original) (quoting the majority opinion, 132 S.Ct. at 953).
Justice Alito, joined by Justices Ginsburg, Breyer, and Kagan, concurred in the judgment only, reasoning that, although he agreed with the result, given the use of twenty-first century technology, he would have analyzed whether the government's long-term monitoring of the defendant violated the Katz v. United States reasonable-expectation-of-privacy test:
132 S.Ct. at 957-58 (Alito, J., concurring in the judgment). Justice Alito first took issue with what he called the majority's "questionable proposition that the[] two procedures [of attaching and using a GPS device] cannot be separated for Fourth amendment purposes." 132 S.Ct. at 958. Justice Alito submitted that, "[i]f these two procedures are analyzed separately, it is not at all clear from the Court's opinion why either should be regarded as a search." 132 S.Ct. at 958.
Justice Alito contended that the majority's opinion suggests that "the concept of a search, as originally understood, comprehended any technical trespass that led to the gathering of evidence," but disagreed with the majority, stating: "[W]e know this is incorrect." 132 S.Ct. at 958. Justice Alito pointed out that the open-fields doctrine grew out of the distinction between a physical intrusion of any private property and property that is part of a home: "At common law, any unauthorized intrusion on private property was actionable, but a trespass on open fields . . . does not fall within the scope of the Fourth Amendment because private property out-side the curtilage is not part of a `hous[e]' within the meaning of the Fourth Amendment." 132 S.Ct. at 958-959 (Alito, J., concurring in the judgment) (quoting Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984)).
Justice Alito asserted that the trespass-based approach that the majority used was "repeatedly criticized" and ultimately "repudiated," based largely on its incompatibility with cases involving wiretapping and eavesdropping surveillance. United States v. Jones, 132 S.Ct. at 959, 960 (Alito, J., concurring in the judgment). Justice Alito contended that "the majority is hard pressed to find support in post-Katz cases for its trespass-based" decision that, when the United States attached the GPS device to Jones' Jeep, it trespassed on his effects and performed a Fourth Amendment search. 132 S.Ct. at 960-61. Justice Alito pointed to multiple problems that he believes the majority's trespass-based approach creates. First, he asserted that the majority's analysis is irreconcilable with the element of the United States' conduct that he contends society would find offensive—the GPS-monitoring and not the attachment of the device. If the United States could follow a car without physically trespassing on a person, home, paper, or effect, such as remotely monitoring a car via an internal GPS device, this monitoring would not constitute a Fourth
In Florida v. Jardines, ___ U.S. ___, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), Justice Scalia, writing for the majority once again, held that using a drug-sniffing dog to sniff a person's "home and its immediate surroundings" is a Fourth Amendment search. 133 S.Ct. at 1417-18. Justices Thomas, Ginsburg, Sotomayor, and Kagan joined Justice Scalia's majority opinion in Florida v. Jardines. The Honorable Elena Kagan, Associate Justice, filed a separate concurring opinion, in which Justices Ginsburg and Sotomayor joined, adding "further thoughts, suggesting that a focus on Jardines' privacy interests would make `an easy cas[e] easy' twice over," but "join[ing] the Court's opinion in full." 133 S.Ct. at 1420 (Kagan, J., concurring). Justice Alito dissented, and Chief Justice Roberts, Justice Kennedy, and Justice Breyer joined his opinion.
In Florida v. Jardines, based on a tip that the defendant, Jardines, was growing marijuana in his home, the Miami-Dade, Florida, police department and the Drug Enforcement Administration sent a surveillance team to Jardines' home. See 133 S.Ct. at 1413. Observing nothing of note in the first fifteen minutes watching the home, two detectives approached the home accompanied by a dog trained to detect marijuana, cocaine, heroin, and several other drugs by alerting the detectives with behavioral changes. See 133 S.Ct. at 1413. As the dog approached Jardines' front porch, the dog "apparently sensed one of the odors he had been trained to detect," and after tracking back and forth, sat at the base of the front door, "which is the trained behavior upon discovering the odor's strongest point." 133 S.Ct. at 1413. The dog's handler then immediately left the porch, and told the other agents and officers at the scene that there had been a positive alert for drugs, at which time the officers applied for and received a search warrant for the residence, the execution of which revealed marijuana plants. See 133 S.Ct. at 1413. Jardines was arrested for trafficking in marijuana and moved to suppress the evidence based on an illegal search. See 133 S.Ct. at 1413.
Justice Scalia held that the use of a drug-sniffing dog that required physical intrusion of officers onto the defendant's curtilage was a Fourth Amendment search, reasoning:
133 S.Ct. at 1414. Justice Scalia noted that "[t]he Fourth Amendment `indicates with some precision the places and things
Justice Scalia held that "the officers' investigation took place in a constitutionally protected area," the home, as the front porch is the home's curtilage. See 133 S.Ct. at 1414-15. Justice Scalia then "turn[ed] to the question of whether it was accomplished through an unlicensed physical intrusion," 133 S.Ct. at 1415, and reasoned that it was:
133 S.Ct. at 1415. Justice Scalia noted that, while society recognizes an implicit license which "typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave," he concluded that "introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that." 133 S.Ct. at 1415-16 (emphasis in original). Justice Scalia explained:
133 S.Ct. at 1416.
The State of Florida argued "that investigation by a forensic narcotics dog by definition cannot implicate any legitimate
133 S.Ct. at 1417.
Justice Kagan wrote a concurring opinion, noting: "The Court today treats this case under a property rubric; I write separately to note that I could just as happily have decided it by looking to Jardines' privacy interests." 133 S.Ct. at 1418 (Kagan, J., concurring). Justice Kagan analogized the government's conduct in using a drug sniffing dog on Jardines' porch to a stranger coming to the front door, who "doesn't knock or say hello," but instead, peers through the windows "into your home's furthest corners" with "super-high-powered binoculars," and "in just a couple of minutes, his uncommon behavior allows him to learn details of your life you disclose to no one." 133 S.Ct. at 1418 (Kagan, J., concurring). This conduct, she posited, is a trespass which exceeds any implied license and is also an invasion of reasonable expectations of privacy; she argued that, like her analogy, the facts in Florida v. Jardines likewise involved a trespass and a violation of privacy expectations:
133 S.Ct. at 1418 (Kagan, J., concurring). According to Justice Kagan, had she written the majority opinion based on the Katz v. United States reasonable-expectations-of-privacy search test,
133 S.Ct. 1409, 1418-19 (Kagan, J., concurring).
Justice Alito's dissenting opinion, in which Chief Justice Roberts, and Justices Kennedy and Breyer, joined, submitted that "[t]he Court's decision in this important Fourth Amendment case is based on a putative rule of trespass law that is nowhere to be found in the annals of Anglo-American jurisprudence." 133 S.Ct. at 1420 (Alito, J., dissenting). Justice Alito noted that general trespass law permits a license to public members to use a walkway to approach a house's door, including strangers such as mailmen and solicitors, and the majority's conclusion that "the police officer in this case, Detective Bartelt, committed a trespass because he was accompanied during his otherwise lawful visit to the front door of respondent's house by his dog, Franky," is without a sound basis in trespass law. 133 S.Ct. at 1420-21 (Alito, J., dissenting). Justice Alito also asserted that decision is inconsistent with the Katz v. United States' reasonable-ex-pectations-of-privacy test: "A reasonable person understands that odors emanating from a house may be detected from locations that are open to the public, and a reasonable person will not count on the strength of those odors remaining within the range that, while detectible by a dog, cannot be smelled by a human." Florida v. Jardines, 133 S.Ct. at 1421 (Alito, J., dissenting).
Justice Alito contended that the majority's opinion, that the detective "exceeded the boundaries of the license to approach the house that is recognized by the law of trespass," is "unfounded." 133 S.Ct. at 1421 (Alito, J., dissenting). Justice Alito pointed out that the law of trespass does not distinguish between visitors or reasons for the visit in granting an implied license to approach a house's front door. See 133 S.Ct. at 1421-22 (Alito, J., dissenting). He also asserted: "As I understand the law of trespass and the scope of the implied license, a visitor who adheres to these limitations is not necessarily required to ring the doorbell, knock on the door, or attempt to speak with an occupant," and uses mail carriers as an example of such a visitor. 133 S.Ct. at 1423 (Alito, J., dissenting). Justice Alito pointed out that the implied license also applies to law enforcement and cited to Kentucky v. King, ___ U.S. ___ 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011), in which the Supreme Court held that law enforcement officers approaching the front door of a residence to conduct a "knock and talk" is not a Fourth Amendment search. Florida v. Jardines, 133 S.Ct. at 1423 (Alito, J., concurring). Given that "Detective Bartelt did not exceed the scope of the license to approach respondent's front door," Justice Alito took issue with the majority's conclusion "that Detective Bartelt went too far because he had the `objectiv[e] . . . purpose to conduct a search.'" 133 S.Ct. at 1423 (Alito, J., dissenting)
133 S.Ct. at 1424 (Alito, J., dissenting) (emphasis in original) (internal citations omitted). Justice Alito thus concluded: "For these reasons, the real law of trespass provides no support for the Court's holding today. While the Court claims that its reasoning has `ancient and durable roots,' its trespass rule is really a newly struck counterfeit." 133 S.Ct. at 1424 (Alito, J., dissenting) (internal citations omitted).
Justice Alito did not look any more favorably upon Justice Kagan's conclusion that Detective Bartelt's conduct violated Jardines' reasonable privacy expectations, asserting:
133 S.Ct. at 1424 (Alito, J., dissenting). Justice Kagan asserted that Bartelt's use of Franky, the drug-sniffing dog, was an invasion of Jardines' privacy in his home, because the government's conduct was similar to the conduct in Kyllo v. United States, in which the Supreme Court held that using a thermal imaging device to monitor movements in a home was a Fourth Amendment search. Justice Alito pointed out that "[t]his Court . . . has already rejected the argument that the use of a drug-sniffing dog is the same as the use of a thermal imaging device. The very argument now advanced by the concurrence appears in Justice Souter's Caballes dissent. But the Court was not persuaded." 133 S.Ct. at 1425 (Alito, J., dissenting) (internal citations omitted) (citing Illinois v. Caballes, 543 U.S. at 409-10 and 413 n.3, 125 S.Ct. 834). Justice Alito contended that "Kyllo is best understood as a decision about the use of new technology. . . . A dog, however, is not a new form of `technology' or a `device.' And, as noted, the use of dogs' acute sense of smell in law enforcement dates back many centuries." 133 S.Ct. at 1425 (Alito, J., dissenting). Justice Alito therefore concluded that the government's conduct in Florida v. Jardines "did not constitute a trespass and did not violate respondent's reasonable
The Tenth Circuit has referred to the test whether a particular search implicates a defendant's Fourth Amendment interests—whether the search violates the defendant's reasonable privacy expectation—as one of "standing." E.g., United States v. Creighton, 639 F.3d 1281, 1286 (10th Cir.2011) ("The Defendant has the burden of establishing . . . standing, or, in other words, a subjective expectation of privacy in the [item searched] that society is prepared to recognize as reasonable."); United States v. Poe, 556 F.3d 1113, 1121 (10th Cir.2009) ("[A] defendant raising a Fourth Amendment challenge must first demonstrate that he has standing to object to the search.") (citing United States v. Rubio-Rivera, 917 F.2d 1271, 1274 (10th Cir. 1990)); United States v. Shareef, 100 F.3d 1491, 1499 (10th Cir.1996) ("A Defendant has standing to challenge a search only if he or she has a reasonable expectation of privacy in the area being searched."). Accordingly, the Court, tracing the Tenth Circuit's language has also referred to this test as one of standing. See, e.g., United States v. Harmon, 785 F.Supp.2d at 1157 ("Standing requires the defendant to show `that he had a subjective expectation of privacy in the premises searched and that society is prepared to recognize that expectation as reasonable.'") (quoting United States v. Poe, 556 F.3d at 1121). The Supreme Court's decisions in United States v. Jones and Florida v. Jardines, however, suggest that this test has now expressly been designated a substantive Fourth Amendment analysis alongside the trespass-based Fourth Amendment analysis, rather than a distinct analysis under the rubric entitled standing.
In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court disapproved of labeling the inquiry whether a search implicates a defendant's personal Fourth Amendment interests "as one of standing, rather than simply recognizing it as one involving the substantive question of whether or not the proponent of the motion to suppress had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge." 439 U.S. at 133, 99 S.Ct. 421. Dispensing with this label, the Supreme Court noted:
439 U.S. at 138-39, 99 S.Ct. 421. The Supreme Court emphasized:
439 U.S. at 139-40, 99 S.Ct. 421. In Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998), the Supreme Court recognized that Rakas v. Illinois put an end to the Fourth Amendment standing analysis as separate from the substantive Fourth Amendment search analysis:
525 U.S. at 87-88, 119 S.Ct. 469. The Supreme Court has thus noted that the analysis under either approach—the substantive Fourth Amendment doctrine that the rights that the Amendment secures are personal versus the separate notion of "standing"—is the same and that Katz v. United States' reasonable-expectation-of-privacy analysis has now been classified as a substantive Fourth Amendment test, as opposed to a standing test. Rakas v. Illinois, 439 U.S. at 139, 99 S.Ct. 421.
Rakas v. Illinois, 439 U.S. at 139, 99 S.Ct. 421 (footnote omitted). This development is in line with the Supreme Court's guidance
A Fourth Amendment search occurs either where the government, to obtain information, trespasses on a person's property or where the government, to collect information, violates a person's subjective expectation of privacy that society recognizes as reasonable. See United States v. Jones, 132 S.Ct. at 947. "[T]he Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test." United States v. Jones, 132 S.Ct. at 947 (emphasis in original) (citing Alderman v. United States, 394 U.S. 165, 176, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Soldal v. Cook Cnty., 506 U.S. 56, 64, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992)). "When `the Government obtains information by physically intruding' on persons, houses, papers, or effects, `a `search' within the original meaning of the Fourth Amendment' has `undoubtedly occurred.'" Florida v. Jardines, 133 S.Ct. at 1414 (quoting United States v. Jones, 132 S.Ct. at 950 n.3).
The Fourth Amendment "establishes a simple baseline, one that for much of our history formed the exclusive basis for its protections: When `the Government obtains information by physically intruding' on persons, houses, papers, or effects, `a `search' within the original meaning of the Fourth Amendment' has `undoubtedly occurred.'" Florida v. Jardines, 133 S.Ct. at 1414 (quoting United States v. Jones, 132 S.Ct. at 950 n.3 ("[A] `search' within the original meaning of the Fourth Amendment" occurs "[w]here . . . the Government obtains information by physically intruding on a constitutionally protected area.")). "[A]n actual trespass," however, "is neither necessary nor sufficient to establish a constitutional violation." United States v. Jones, 132 S.Ct. at 951 n.5 (Scalia, J.) (emphasis omitted) (quoting United States v. Karo, 468 U.S. 705, 713, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984)).
In determining whether a search has occurred, "[t]resspass alone does not qualify, but there must be conjoined with that . . . an attempt to find something or to obtain information." United States v. Jones, 132 S.Ct. at 951 n.5. The Supreme Court has also noted that "[p]hysically invasive inspection is simply more intrusive than purely visual inspection." Bond v. United States, 529 U.S. 334, 337, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000). Moreover, the Supreme Court in Florida v. Jardines suggested that the trespass-based analysis applies only when the trespass occurs in one of the four places or things listed in the Fourth Amendment:
133 S.Ct. at 1414.
In United States v. Alabi, 943 F.Supp.2d 1201 (D.N.M.2013) (Browning, J.), the
943 F.Supp.2d at 1273 (alteration in original).
The Court has noted that, in light of the Supreme Court's recent decisions in Florida v. Jardines and United States v. Jones, both of which Justice Scalia wrote for the majority, and both of which analyze whether government conduct constituted a Fourth Amendment search using the trespass-based approach, "the question arises whether the Katz v. United States reasonable-expectation-of-privacy test is still good law." United States v. Alabi, 943 F.Supp.2d at 1242 (citing Minnesota v. Carter, 525 U.S. at 97-98, 119 S.Ct. 469 (Scalia, J. concurring)). Justice Scalia has consistently criticized this "notoriously unhelpful test":
Minnesota v. Carter, 525 U.S. at 97-98, 119 S.Ct. 469 (Scalia, J., concurring) (emphasis in original) (internal citations omitted).
In June, 2013, Justice Scalia dissented from the Supreme Court's decision in Maryland v. King, ___ U.S. ___, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013), in which the Supreme Court held that "DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure," 133 S.Ct. at 1980. Justice Scalia criticized the majority's opinion for analogizing DNA testing to taking an arrestee's photograph by citing to Katz v. United States and pointing out that "we have never held that merely taking a person's photograph invades any recognized `expectation of privacy.'" Maryland v. King, 133 S.Ct. at 1986 (Scalia, J., dissenting). Justice Scalia also pointed out that a person's "privacy-related concerns" in his or her body are weighty:
Maryland v. King, 133 S.Ct. at 1982 (Scalia J., dissenting) (emphasis in original). Justice Scalia also suggested that the Founders would have shared these privacy-related concerns:
Maryland v. King, 133 S.Ct. at 1989 (Scalia J., dissenting). The Court therefore concludes that Justice Scalia and the Supreme Court may still rely on a person's privacy expectation when determining whether a search is reasonable for Fourth Amendment purposes, although Justice Scalia may not turn to the expectations prong until he runs the facts through the trespass prong. See Apodaca v. New Mexico Adult Probation and Parole, 998 F.Supp.2d 1160, 1175-76, 2014 WL 712588, at *14 (D.N.M.2014) (Browning, J.) (reaching this conclusion).
"`Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.'" Rakas v. Illinois, 439 U.S. at 133-34, 99 S.Ct. 421 (quoting Alderman v. United States, 394 U.S. at 174, 89 S.Ct. 961). "A district court cannot suppress evidence unless the movant proves that a search implicates personal Fourth Amendment interests." United States v. Jones, 44 F.3d 860, 871 (10th Cir.1995) (emphasis in original). "[No interest legitimately protected by the Fourth Amendment' is implicated by governmental investigative activities unless there is an intrusion into a zone of privacy, into the security a man relies upon when he places himself or his property within a constitutionally protected area.'" United States v. Miller, 425 U.S. 435, 440, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) (Hoffa v. United States, 385 U.S. 293, 301-02, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966)).
"Official conduct that does not `compromise any legitimate interest in privacy' is not a search subject to the Fourth Amendment." Illinois v. Caballes, 543 U.S. at 409, 125 S.Ct. 834 (quoting United States v. Jacobsen, 466 U.S. at 123, 104 S.Ct. 1652). The Supreme Court has thus recognized that, rather than determining whether law enforcement conduct was a search, it sometimes proves easier to "assess[] when a search is not a search." Kyllo v. United States, 533 U.S. at 32, 121 S.Ct. 2038.
Kyllo v. United States, 533 U.S. at 32-33, 121 S.Ct. 2038. The Supreme Court thus articulated the Katz v. United States rule — which Professor Wayne R. LaFave has noted is "somewhat inaccurately stated as the `reasonable expectation of privacy' test," Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.1(b), at 435 (4th ed.2004) (citing Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L.Rev. 349, 383-388 (1974)) (criticizing this formulation of the standard and explaining that "the common formula for Katz fails to capture Katz at any point because the Katz decision was written to resist captivation in any formula") — which posits: "[A] Fourth Amendment search does not occur. . . unless the individual manifested a subjective expectation of privacy in the object of the challenged search,' and `society [is] willing to recognize that expectation
A "reasonable expectation of privacy" is "said to be an expectation `that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.'" United States v. Jones, 132 S.Ct. at 951. See United States v. Harmon, 785 F.Supp.2d at 1157 ("To decide whether a reasonable expectation of privacy exists, courts consider concepts of real or personal property law . . . ."). In analyzing whether an expectation of privacy is reasonable in the Fourth Amendment context based on property law, "arcane distinctions developed in property and tort law between guests, licensees, invitees, and the like, ought not to control." Rakas v. Illinois, 439 U.S. at 143 & n. 12, 99 S.Ct. 421. While ownership or lawful possession is not determinative under the Katz v. United States reasonable-expectation-of-privacy test, it is often a dispositive factor; because the Fourth Amendment is a personal right, a defendant bears the burden of demonstrating "that he gained possession [of the area searched] from the owner or someone with the authority to grant possession." United States v. Arango, 912 F.2d 441, 445-46 (10th Cir.1990).
A defendant maintains a subjective expectation of privacy when the defendant "has shown that `he sought to preserve something as private.'" Bond v. United States, 529 U.S. at 338, 120 S.Ct. 1462 (internal alterations omitted) (quoting Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)). Thus, there is no reasonable expectation of privacy in otherwise private information disclosed to a third party. Under the Katz v. United States expectation-of-privacy test — although perhaps not under United States v. Jones and Florida v. Jardines — "[t]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. at 351, 88 S.Ct. 507. The Supreme Court has noted:
United States v. Miller, 425 U.S. at 443, 96 S.Ct. 1619.
The Supreme Court has recognized, however, that subjective expectations of privacy do not always coincide with the interests that the Fourth Amendment is universally thought to protect. In Smith v. Maryland, for instance, the Supreme Court identified situations in which it would not follow the subjective approach:
442 U.S. at 740 n. 5, 99 S.Ct. 2577. Most recently, in United States v. Jones, Justice Sotomayor commented that, given the reality of technology in the twenty-first century, it may no longer be sound to universally hold to the third-party disclosure rule to determine whether a subjective expectation of privacy exists:
132 S.Ct. at 957 (Sotomayor, J., concurring) (internal citations omitted). Regardless what the Supreme Court decides to do with social media on the internet, only the most ignorant or gullible think what they post on the internet is or remains private. See United States v. Meregildo, 883 F.Supp.2d 523, 526 (S.D.N.Y.2012) (Pauley, J.) (holding that a person posting to his Facebook profile had "no justifiable expectation that his `friends' would keep his profile private").
Under the second step of Katz v. United States' reasonable-expectation-of-privacy approach, courts must determine "whether society is prepared to recognize that [subjective privacy] expectation as objectively reasonable." United States v. Ruiz, 664 F.3d 833, 838 (10th Cir.2012). The Supreme Court has cautioned: "The concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts will not come to the attention of the authorities." United States v. Jacobsen, 466 U.S. 109, 122, 104 S.Ct. 1652,
Oliver v. United States, 466 U.S. at 177-78, 104 S.Ct. 1735 (internal citations omitted).
The Supreme Court has held that "[o]fficial conduct that does not `compromise any legitimate interest in privacy' is not a search subject to the Fourth Amendment." Illinois v. Caballes, 543 U.S. at 409, 125 S.Ct. 834 (quoting United States v. Jacobsen, 466 U.S. at 123, 104 S.Ct. 1652). In United States v. Place, the Supreme Court held that the "canine sniff' of a drug-sniffing dog does "not constitute a `search' within the meaning of the Fourth Amendment." United States v. Place, 462 U.S. at 707, 103 S.Ct. 2637. The case arose when law enforcement seized the luggage of an airline passenger and transported it to another location, where a drug-sniffing dog could sniff it. See 462 U.S. at 699, 103 S.Ct. 2637. The drug sniffing dog alerted the officers that drugs were in the luggage, the officers obtained a search warrant, and, upon opening the bags, the officers found over one-thousand grams of cocaine. See 462 U.S. at 699, 103 S.Ct. 2637. While recognizing that a person has a reasonable expectation of privacy in the contents of his or her luggage, the Supreme Court held that the dog's sniff test was not a Fourth Amendment search and emphasized the unique nature of the investigative technique, which could disclose only criminal activity:
462 U.S. at 707, 103 S.Ct. 2637.
In United States v. Jacobsen, the Supreme Court extended this holding to the chemical field test of a white powdery substance to reveal that the substance was cocaine. See 466 U.S. at 122-24, 104 S.Ct. 1652. A Federal Express employee and supervisor had opened a damaged package, and exposed four zip-lock plastic bags containing six and one-half ounces of white powder. See 466 U.S. at 111, 104 S.Ct. 1652. They then called the DEA and repacked the contents in the original packaging, before they provided the package to the DEA officers. See 466 U.S. at 111, 104 S.Ct. 1652. When the agents arrived, the agents removed the exposed plastic bags from the broken package, opened each of the four bags, and field-tested the white powder, identifying the powder as cocaine. See 466 U.S. at 111-12, 104 S.Ct. 1652. The Supreme Court first held that removal of the plastic bags from the tubes and the agent's visual inspection were not Fourth Amendment searches:
466 U.S. at 120, 104 S.Ct. 1652 (footnote omitted). The Supreme Court noted: "The question remains whether the additional intrusion occasioned by the field test, which had not been conducted by the Federal Express agents and therefore exceeded the scope of the private search, was an unlawful `search' or `seizure' within the meaning of the Fourth Amendment." 466 U.S. at 122, 104 S.Ct. 1652. The Supreme Court, relying on United States v. Place, held that the additional digital scan of the white substance was not a Fourth Amendment search, because the test discloses only whether the substance is cocaine and "nothing [else] of special interest":
United States v. Jacobsen, 466 U.S. at 122-24, 104 S.Ct. 1652.
Most recently, where a "dog sniff was performed on the exterior of respondent's car while he was lawfully seized for a traffic violation," the Supreme Court, again relying on United States v. Place and also on United States v. Jacobsen, held that "[a]ny intrusion on respondent's privacy expectations does not rise to the level of a constitutionally cognizable infringement." Illinois v. Caballes, 543 U.S. at 409, 125 S.Ct. 834.
Illinois v. Caballes, 543 U.S. at 409-10, 125 S.Ct. 834.
In United States v. Alabi, the defendants possessed thirty-one credit and debit cards, "many of them in their own names, several of which had information on the magnetic strips that related to persons other than the Defendants." 943 F.Supp.2d at 1275. The Court reluctantly accepted the defendants' assertion that they "subjectively intended not to disclose this information to a third party — i.e., intended not to use the cards," 943 F.Supp.2d at 1275, but determined that "a privacy expectation in the account information stored on credit and debit cards' magnetic strips — separate and beyond the credit and debit cards themselves — is not objectively reasonable," 943 F.Supp.2d at 1280. The Court explained that the Secret Service's scan of the cards' magnetic strips "reveals only the same information revealed in a private search when the card is used as intended," and, further, that, even if the cards had never been used, the scan "discloses only information known by viewing the outside of the card, or information that the cards and account information are possessed unlawfully. . . ." 943 F.Supp.2d at 1281. Noting the Supreme Court's decision in Rakas v. Illinois, in which the Supreme Court "reasoned that society is not prepared to recognize as reasonable an expectation of privacy in a burglar robbing a summer cabin during the offseason," the Court concluded that society would not recognize "as reasonable a privacy expectation which, at least in contemporary society, would benefit only criminals." 943 F.Supp.2d at 1287.
"[B]ecause the ultimate touchstone of the Fourth Amendment is reasonableness,'" when a search implicating the Fourth Amendment has occurred, the district court must determine whether the search is reasonable. Kentucky v. King, 131 S.Ct. at 1856 (quoting Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006)). See Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) ("[U]nder our general Fourth Amendment approach' we `examin[e] the totality of the circumstances' to determine whether a search is reasonable within the meaning of the Fourth Amendment.") (quoting United States v. Knights, 534 U.S. 112, 118, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001)). "Although the Fourth Amendment ordinarily requires the degree of probability embodied in the term `probable cause,' a lesser degree satisfies the Constitution when the balance of governmental and private interests makes such a standard reasonable." United States v. Knights, 534 U.S. at 121, 122 S.Ct. 587 (citing e.g. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). The Supreme Court has justified this balancing test with the recognition that "[t]he Fourth Amendment does not protect all subjective expectations of privacy, but only those that society recognizes as `legitimate.'" Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (quoting New Jersey
"Whether a search is reasonable `is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.'" Samson v. California, 547 U.S. at 848, 126 S.Ct. 2193 (quoting United States v. Knights, 534 U.S. at 118, 122 S.Ct. 587). See Banks v. United States, 490 F.3d 1178, 1184 (10th Cir.2007) (stating that the Supreme Court "described the totality-of-the-circumstances test as one where the reasonableness of a search is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy, and on the other, the degree to which it is needed for the promotion of legitimate governmental interests" (quoting United States v. Knights, 534 U.S. at 119-20, 122 S.Ct. 587)).
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. at 652-53, 115 S.Ct. 2386 (1995) (quoting Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 617, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989)). The Supreme Court has held that the test of reasonableness under the Fourth Amendment is not a concrete test:
Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).
In analyzing the first factor — the intrusion on the individual's privacy— courts and the Tenth Circuit look to the individual's privacy expectations. See, e.g., United States v. Knights, 534 U.S. 112, 119-120, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (noting that the petitioner had a "significantly diminished . . . reasonable expectation of privacy," because a condition of his probation was to consent to search of his apartment without notice or probable cause, and because he was clearly notified and informed of the provision); Banks v. United States, 490 F.3d at 1186-87 (noting that the plaintiffs, convicted felons on probation, have a more limited expectation of privacy than the ordinary citizen, noting: "Those who have never been convicted of a felony are the last distinct category. What is `reasonable' under the fourth amendment for a person on conditional release, or a felon, may be unreasonable for the general population."); Boling v. Romer, 101 F.3d 1336, 1340 (10th Cir. 1996) ("[W]hile obtaining and analyzing the DNA or saliva of an inmate convicted of a sex offense is a search and seizure implicating Fourth Amendment concerns, it is a reasonable search and seizure. This is so in light of an inmate's diminished privacy rights. . . .")
Searches conducted pursuant to consent constitute one exception to the Fourth Amendment's search-warrant and probable-cause requirements. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). When an individual consents to a police search, and the consent is "freely and voluntarily given," the search does not implicate the Fourth Amendment. United States v. Pena, 143 F.3d 1363, 1366 (10th Cir.1998) (quoting Schneckloth v. Bustamonte, 412 U.S. at 219, 93 S.Ct. 2041). The Tenth Circuit has provided a two-part test for determining voluntariness, which requires that the government (i) "`proffer clear and positive testimony that consent was unequivocal and specific and intelligently given,'" and (ii) "the officers must have used no `implied or express duress or coercion.'" United States v. Sanchez, 608 F.3d 685, 690 (10th Cir.2010) (quoting United States v. Taverna, 348 F.3d 873, 878 (10th Cir.2003)).
Determining whether a party's consent was free and voluntary is a question of fact to be determined from the totality of the circumstances. See United States v. Pena, 143 F.3d at 1366. The Supreme Court and the Tenth Circuit have developed a non-exhaustive list of factors that courts should consider when trying to determine whether a defendant's consent was voluntarily given:
United States v. Sedillo, No. CR 08-1419 JB, 2010 WL 965743, at *12 (D.N.M. Feb. 19, 2010) (Browning, J) (some alterations in original). See United States v. Fox, 600 F.3d 1253, 1258 (10th Cir.2010).
Because courts are required to look at the totality of the circumstances in determining whether an individual's consent was voluntary, see United States v. Peña, 143 F.3d at 1366, no one factor is dispositive
In United States v. Harmon, the Court concluded that the defendant, Michael Harmon, voluntarily consented to an officer searching the vehicle he was driving. See 785 F.Supp.2d at 1171-74. The Court noted that "`[t]his Circuit follows the bright-line rule that an encounter initiated by a traffic stop may not be deemed consensual unless the driver's documents have been returned to him.'" 785 F.Supp.2d at 1171 (quoting United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.1994), overruled on other grounds by United States v. Botero-Ospina, 71 F.3d 783 (10th Cir.1995)). After the officer, Hermilo Lucero, issued Harmon a warning, "he returned all Harmon's paperwork[,] . . . made sure that Harmon had everything, gave him a warning and told him to be careful." United States v. Harmon, 785 F.Supp.2d at 1171. "As Harmon turned around and started to walk back to his vehicle, Lucero, intending to initiate a consensual encounter, called out to Harmon, and . . . asked him whether there was anything illegal in the vehicle, to which Harmon responded no." 785 F.Supp.2d at 1172. The Court concluded that this question initiated a consensual encounter, as "[a] reasonable person in Harmon's situation would not have an objective reason to believe he was not free to end his conversation with Lucero," and Harmon's subsequent signing of the consent-to-search form provided the officer with the necessary consent to search the vehicle without infringing Harmon's Fourth Amendment rights. 785 F.Supp.2d at 1172-73.
Probable cause must support a search warrant, which requires "more than mere suspicion but less evidence than is necessary to convict." United States v. Burns, 624 F.2d 95, 99 (10th Cir.1980). To establish probable cause to justify a search of a home, an affidavit in support of a search warrant "must contain facts sufficient to lead a prudent person to believe that a search would uncover contraband or evidence of criminal activity." United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir.2000). "Probable cause undoubtedly requires a nexus between suspected
United States v. Reed, 195 Fed.Appx. 815, 821 (10th Cir.2006) (unpublished) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). See United States v. Glover, 104 F.3d 1570, 1578 (10th Cir.1997) (finding that, in determining whether an affidavit supports a finding of probable cause, the court must review the affidavit as a whole and look to the totality of the information contained therein), abrogated on other grounds by Corley v. United States, 556 U.S. 303, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009). In making his or her determination, the magistrate judge "may draw reasonable inferences from the material provided in the warrant application." United States v. Rowland, 145 F.3d 1194, 1205 (10th Cir. 1998).
"A reviewing court should accord great deference to a magistrate's determination of probable cause." United States v. Reed, 195 Fed.Appx. at 822. The court's duty is "simply to ensure that the magistrate had a substantial basis for . . . conclud[ing] that probable cause existed." Illinois v. Gates, 462 U.S. at 236, 238-39, 103 S.Ct. 2317. This deference is appropriate to further the Fourth Amendment's strong preference for warrants. See Massachusetts v. Upton, 466 U.S. 727, 733, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984); United States v. Ventresca, 380 U.S. 102, 105-06, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) ("An evaluation of the constitutionality of a search warrant should begin with the rule that the informed and deliberate determinations of magistrates empowered to issue warrants . . . are to be preferred over the hurried action of office[r]s. . . ."). Because of the strong preference for warrants, "in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall." United States v. Ventresca, 380 U.S. at 106, 85 S.Ct. 741. See United States v. Christy, 785 F.Supp.2d 1004, 1051 (D.N.M.2011) (Browning, J.) (discussing the great deference due a magistrate's finding of probable cause and that the Court reviews only whether there was a substantial basis for concluding that probable cause existed given the facts set forth in the affidavit); Garcia v. Casuas, No. CIV 11-0011 JB/RHS, 2011 WL 7444745, at *45 (D.N.M. Dec. 8, 2011) (Browning, J.) ("Additionally, before arresting Garcia, the Defendants obtained a determination that probable cause existed and an arrest warrant from a state court judge. . . . That probable cause determination is entitled to great deference in this Court.")
The deference accorded a magistrate judge's probable cause determination, however, is not boundless. See United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The Court should not defer to a magistrate judge's probable-cause determination where there is no substantial basis for concluding that the affidavit in support of the warrant established probable cause. See United States v. Danhauer, 229 F.3d at 1006. Specifically, the Court should not defer to a magistrate judge's probable-cause determination if it "is a mere ratification of the bare conclusions or `hunches' of others or where it involves an improper analysis of the totality of the circumstances."
The Supreme Court has stated that "those searches deemed necessary should be as limited as possible." Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The Tenth Circuit has explained that "the Fourth Amendment requires that the government describe the items to be seized with as much specificity as the government's knowledge and circumstances allow, and warrants are conclusively invalidated by their substantial failure to specify as nearly as possible the distinguishing characteristics of the goods to be seized." Cassady v. Goering, 567 F.3d 628, 635 (10th Cir.2009) (quoting United States v. Leary, 846 F.2d 592, 600 (10th Cir.1988)). The particularity requirement prevents general searches and strictly limits the discretion of the officer executing the warrant. See Voss v. Bergsgaard, 774 F.2d 402, 404 (10th Cir.1985) ("The particularity requirement ensures that a search is confined in scope to particularly described evidence relating to a specific crime for which there is demonstrated probable cause."); United States v. Janus Indus., 48 F.3d 1548, 1553 (10th Cir.1995) ("`As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.'" (quoting Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965))). "A description is sufficiently particular when it enables the searcher to reasonably ascertain and identify the things authorized to be seized." United States v. Janus Indus., 48 F.3d at 1553 ("The test applied to the description of the items to be seized is a practical one.").
In Cassady v. Goering, the search warrant authorized the search of the plaintiff's entire farm, including his house, and the seizure of "[a]ny & all narcotics," "[a]ny and all illegal contraband," and various specific items mostly related to a narcotics operation, as well as the search and seizure of "all other evidence of criminal activity" and all personal property that was stolen, embezzled, or otherwise illegal. 567 F.3d at 635. The Tenth Circuit found that the warrant violated the plaintiff's Fourth Amendment rights, because "[t]he warrant[] allowed precisely the kind of rummaging through a person's belongings, in search of evidence of even previously unsuspected crimes or of no crime at all, that the Fourth Amendment proscribes." 567 F.3d at 635 (quoting Voss v. Bergsgaard, 774 F.2d at 405). The Tenth Circuit in Cassady v. Goering explained that it had previously "applied a blanket suppression where officers conducted a general search for evidence of crimes not specifically listed in the warrant," 567 F.3d at 643 (emphasis in original) (citing United States v. Foster, 100 F.3d 846, 851-52 (10th Cir.1996); United States v. Medlin, 842 F.2d 1194, 1199-1200 (10th Cir.1988)); given that line of cases, the Tenth Circuit said "it would be an odd result not to suppress warrants that expressly authorize a general search and seizure," Cassady v. Goering, 567 F.3d at 643 (emphasis in original).
"[T]he warrantless entry of the home is the chief evil against which . . . the Fourth Amendment is directed.'" United States v. Lowe, 999 F.2d 448, 451 (10th Cir.1993) (quoting United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972)).
In United States v. Dunn, the Supreme Court articulated four factors that should be used when determining whether an area is within the curtilage of a house for Fourth Amendment purposes. These factors are
480 U.S. at 301, 107 S.Ct. 1134. See United States v. Christy, 810 F.Supp.2d 1219, 1252-57 (D.N.M.2011) (Browning, J.) (analyzing the United States v. Dunn factors to determine if a driveway, where an officer was standing when he looked through the window of the defendant's house, was part of the house's curtilage, concluding that "the area from which [the officer] looked into the window `did not fall within the curtilage' of Christy's residence," and, thus, did not violate the Fourth Amendment, but concluding that the "act of peering into a small crack in the blinds constituted a search"). Backyards that are enclosed and adjacent to a house are generally considered to be part of the curtilage. See United States v. Hatfield, 333 F.3d 1189, 1196 (10th Cir. 2003); United States v. Jenkins, 124 F.3d 768, 772-73 (6th Cir.1997). Even partially enclosed backyards have been found to be part of a home's curtilage. See, e.g., United States v. Swepston, 987 F.2d 1510, 1515 (10th Cir.1993) (holding partial enclosure consistent with area being curtilage), overruled in part on other grounds by United States v. Cousins, 455 F.3d 1116 (10th Cir.2006); United States v. Jenkins, 124 F.3d at 773 (same); Ysasi v. Brown, 3 F.Supp.3d 1088, 1150-53, No. CIV 13-0183 JB/CG, 2014 WL 936835, at *48-49 (D.N.M. Feb. 28, 2014) (Browning, J.) (concluding that the area inside the plaintiff's six-foot high chain-linked fence was part of the mobile home's curtilage, when the fence enclosed the entire property and was about one-hundred yards from the mobile home, the gates on the fence were locked, and the dumpster was located out-side the fence).
A warrantless search is constitutional if consent is given for the search. Consent to a search must be unequivocal, specific, and freely given. See United States v. Guerrero, 472 F.3d 784, 789 (10th Cir.2007); United States v. Davis, 197 F.3d 1048, 1052 (10th Cir.1999); United States v. Butler, 966 F.2d 559, 562 (10th Cir.1992). Consent does not need to be spoken, but "may instead be granted through gestures or other indications of acquiescence, so long as they are sufficiently comprehensible to a reasonable officer." United States v. Guerrero, 472 F.3d at 789-90. "Non-verbal conduct, considered with other factors, can constitute voluntary consent to search." United States v. Gordon, 173 F.3d 761, 766 (10th Cir.1999). In United States v. Gordon, for example, the Tenth Circuit found implied consent when, in response to an officer's question whether the defendant could open
One strategy to gain consent to a search is a knock and talk, and the knock and talk itself is not a search. "[P]olice officers do not engage in a search when they approach the front door of a residence and seek to engage in what is termed a `knock and talk,' i.e., knocking on the door and seeking to speak to an occupant for the purpose of gathering evidence." Florida v. Jardines, 133 S.Ct. at 1423 (Alito, J., dissenting).
Kentucky v. King, 131 S.Ct. at 1862. The Tenth Circuit has explained that reasonable suspicion is unnecessary for a knock-and-talk investigation, because, "[a]s commonly understood, a `knock and talk' is a consensual encounter and therefore does not contravene the Fourth Amendment, even absent reasonable suspicion." United States v. Cruz-Mendez, 467 F.3d 1260, 1264 (10th Cir.2006). Police officers may approach a home, entering the curtilage surrounding that home that would be the normal route of access to the home, and knock, "precisely because that is `no more than any private citizen might do.'" United States v. Shuck, 713 F.3d 563, 568 (10th Cir.2013) (quoting Florida v. Jardines, 133 S.Ct. at 1416). See Ysasi v. Brown, 3 F.Supp.3d at 1157-58, 2014 WL 936835, at *54 (concluding that, when the plaintiff told the defendant officers that he did not want them on his property, the officers could not rely on the knock-and-talk investigation strategy to enter the curtilage around his mobile home).
A warrantless search of a home can also be constitutional when there are exigent circumstances. For exigent circumstances regarding safety to justify a warrantless search of a home: "(1) the officers [must have] had an objectively reasonable basis to believe that there was an immediate need to enter to protect the safety of themselves or others, and (2) the conduct of the entry [must have been] reasonable." United States v. Reeves, 524 F.3d 1161, 1169 (10th Cir.2008). See United States v. Smith, 797 F.2d 836, 840 (10th Cir.1986). While officers do not need probable cause to establish that exigent circumstances exists, "there must be some reasonable basis, approaching probable cause," supporting the search of the area. United States v. Smith, 797 F.2d at 840 (internal quotation marks omitted). See James v. Chavez, 830 F.Supp.2d 1208, 1260 (D.N.M.2011) (Browning, J.) (concluding that exigent circumstances justified an officer's decision to order a SWAT team to enter the decedent's house when the officers "had a variety of corroborating circumstances to indicate that Murphy Sr. could harm someone, including their own personal observations," including that a neighbor called 911 when the decedent had been standing outside the neighbor's door with a knife, "threatened to harm" the officers, "brandished a knife at them," "would not allow his daughter to leave" the house, and refused to negotiate with officers or relinquish the knife), aff'd, 511 Fed.Appx. 742 (10th Cir.2013).
For purposes of analyzing Fourth Amendment seizures, the Tenth Circuit has divided interactions between
An encounter that is not consensual may nevertheless be justified as an investigative detention. An investigative detention occurs when an officer stops and briefly detains a person "in order to determine his identity or to maintain the status quo momentarily while obtaining more information." Oliver v. Woods, 209 F.3d at 1186 (quoting Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)). Inasmuch as such brief investigative detentions are not consensual, they constitute a seizure and must meet two distinct requirements to be "reasonable" under the Fourth Amendment. First, the officer "must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." Oliver v. Woods, 209 F.3d at 1186 (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). Second, the investigative detention that follows the stop must be "reasonably related in scope to the circumstances" which justified the stop in the first place, Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), because the Fourth Amendment imposes "limitations on both the length of the detention and the manner in which it is carried out," United States v. Holt, 264 F.3d 1215, 1229 (10th Cir.2001) (en bane), overruling on other grounds recognized in United States v. Stewart, 473 F.3d 1265 (10th Cir.2007).
"For reasonable suspicion to exist, an officer `need not rule out the possibility of innocent conduct;' he or she simply must possess `some minimal level of objective justification' for making the stop." United States v. Winder, 557 F.3d 1129, 1134 (10th Cir.2009) (quoting United States v. Verchei, 358 F.3d 1257, 1261 (10th Cir.2004)). This standard is met by information "falling `considerably short' of a preponderance standard." United States v. Winder, 557 F.3d at 1134. See Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (noting that "`reasonable suspicion' is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence . . ."). A police/citizen encounter that goes beyond the limits of a stop under Terry v. Ohio is an arrest which probable cause or consent must support to be valid. See United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir.1993) ("An encounter between police and an individual which goes beyond the limits of a Terry stop, however, may be constitutionally justified only by probable cause or consent.").
An officer may "stop and frisk" an individual under the Fourth
The Tenth Circuit has recognized the doctrine in Terry v. Ohio of an investigative detention — "stop" — and of a protective search — "frisk."
United States v. King, 990 F.2d 1552, 1557 (10th Cir.1993) (citations omitted). The legal standard is whether a "stop and frisk" is reasonable under the Fourth Amendment. United States v. King, 990 F.2d at 1557.
In United States v. Johnson, 364 F.3d 1185 (10th Cir.2004), the Tenth Circuit held that an officer had reasonable suspicion to continue questioning and to frisk a suspect after: (i) the officer had responded to a call from a citizen who gave his telephone number, and gave a detailed and accurate description of possible criminal activity and of the suspect; (ii) the contact occurred in Albuquerque's highest-crime area; and (iii) the suspect displayed nervous behavior. See 364 F.3d at 1194. The Tenth Circuit noted that the officer's experience and training allowed him to make inferences, based on a combination of the surrounding circumstances, that criminal activity was afoot. See 364 F.3d at 1194 ("His suspicions were particularized to [the suspect], and were based on how his training and experience taught him to interpret a number of objectively reasonable details."). While many of the factors that the Tenth Circuit considered did not, without more, give rise to reasonable suspicion, the combination of circumstances was sufficient. See 364 F.3d at 1193 (noting that the district court had erred, because "[all of these factors, mitigating and aggravating, should have been analyzed as part of the totality of the circumstances faced by [the officer] at the inception of the detention").
In United States v. Ceballos, 355 Fed. Appx. 226 (10th Cir.2009) (unpublished), the police officer observed a young girl walking down the street at night. See 355 Fed.Appx. at 227-28. A truck pulled up alongside the girl, the driver of the truck and the girl spoke briefly, then the truck drove ahead, and the girl continued on her walk. See 355 Fed.Appx. at 228. Rather than leave, however, the truck drove ahead and parked with its lights off at a dark spot on the road by which the girl would have to walk. See id. The officer spoke to the girl, who seemed unconcerned and told him that the man in the truck had asked only if she needed a ride; she had refused. See id. Not investigating any particular crime or suspected-crime, and admittedly acting on a "hunch," the officer
355 Fed.Appx. at 229. The Tenth Circuit did not require the officer to identify the particular crime of which the officer had reasonable suspicion or even to acknowledge having reasonable suspicion. The Tenth Circuit was content to find that a reasonable officer would have reasonable suspicion that "Ceballos intended to assault or abduct the teenage pedestrian." 355 Fed.Appx. at 229. The Tenth Circuit demanded only that an officer have facts from which a reasonable officer could form a reasonable suspicion that criminal conduct was occurring or was about to occur. See 355 Fed.Appx. at 229.
In United States v. Aragones, 483 Fed. Appx. 415 (10th Cir.2012) (unpublished), the Tenth Circuit found reasonable suspicion based upon an officer's knowledge of the defendant's:
483 Fed.Appx. at 417. At the district court level, in ruling on the motion to suppress, the Honorable Martha Vazquez, United States District Court Judge, had
A seizure that exceeds the investigative detention's limited scope or duration may nevertheless be justified as an arrest. An arrest is a seizure that is "characterized by highly intrusive or lengthy search or detention." Oliver v. Woods, 209 F.3d at 1186 (quoting United States v. Cooper, 733 F.2d 1360, 1363 (10th Cir.1984)). The general rule is that "the use of firearms, handcuffs, and other forceful techniques" is sufficiently intrusive to signal that a person has been placed under arrest. United States v. Melendez-Garcia, 28 F.3d 1046, 1052-53 (10th Cir.1994). See Florida v. Royer, 460 U.S. 491, 499, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). The use of handcuffs, however, does not always elevate a detention into an arrest. See United States v. Albert, 579 F.3d 1188, 1195 (10th Cir.2009) ("[W]e have approved the use of handcuffs in the context of a Terry stop."); United States v. Reyes-Vencomo, 866 F.Supp.2d 1304, 1330 (D.N.M.2012) (Browning J.) ("The use of handcuffs . . . does not always elevate a detention into an arrest."); Pierre-Louis v. Schake, No. CIV 12-0527 JB/RHS, 2014 WL 1954783 (D.N.M. April 30, 2014) (Browning, J.) (concluding that the defendant police officer acted reasonably in handcuffing the plaintiff, whom he suspected had recently assaulted a person on the side of the road by threatening him with a gun). "Inasmuch as an arrest exceeds an investigative stop's limited scope or duration, it must be supported by probable cause." United States v. Rodriguez, 836 F.Supp.2d 1258, 1288 (D.N.M.2011) (Browning, J.). See Wilson v. Jara, 866 F.Supp.2d 1270, 1292 (D.N.M.2011) (Browning, J.) ("Probable cause must support an arrest, `characterized by highly intrusive or lengthy search or detention.'" (quoting Oliver v. Woods, 209 F.3d at 1185)), aff'd, 512 Fed.Appx. 841 (10th Cir.2013).
"Probable cause to arrest exists only when the `facts and circumstances within the officers' knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.'" United States v. Valenzuela, 365 F.3d 892, 896-97 (10th Cir.2004) (quoting United States v. Edwards, 632 F.3d 633, 639 (10th Cir.2001)) (citing Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959)). Although
Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).
Probable cause is measured against an objective standard. See Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). "The subjective belief of an individual officer as to whether there was probable cause for making an arrest is not dispositive." United States v. Valenzuela, 365 F.3d at 896-97 (citing Florida v. Royer, 460 U.S. 491, 507, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); United States. v. Treto-Haro, 287 F.3d 1000, 1006 (10th Cir. 2002)). Thus, the primary consideration is "whether a reasonable officer would have believed that probable cause existed to arrest the defendant based on the information possessed by the arresting officer." Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir.2002) (alterations omitted) (internal quotation marks omitted).
The Supreme Court has directed that, in analyzing whether information received from an informant establishes probable cause, courts must look to the totality of the circumstances, and "make a practical, common-sense decision whether, given all the circumstances," including the informant's "`veracity' and basis of knowledge,` there is a "substantial basis" for determining "a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. at 239, 103 S.Ct. 2317 (citations omitted). The Tenth Circuit has recognized that the probable-cause determination using the totality of the circumstances test balances indicia of reliability and that, when there is sufficient independent evidence of corroboration, the informant's veracity need not be established:
United States v. Artez, 389 F.3d 1106, 1111 (10th Cir.2004) (internal citations omitted). Thus, the Court has recognized that, "[i]n testing the sufficiency of probable cause, courts may look at information received from a [confidential informant] so long as other matters contained in the warrant corroborate the informant's statement." United States v. Quezada-Enriquez, No. CR 06-2262 JB, 2007 WL 709047, at *5 (D.N.M. Feb. 5, 2007) (Browning, J), aff'd, 567 F.3d 1228 (10th Cir.2009). "Corroboration of apparently innocent details of an informant's report tends to indicate that other aspects of the report are also correct, because an informant who is right about some details is probably also right
The Tenth Circuit has held that "[a] tip from an anonymous or confidential informant that narcotics are being distributed at a particular location may be corroborated through the arrangement of a controlled purchase at the suspect location." United States v. Artez, 389 F.3d at 1111. The Tenth Circuit has noted:
United States v. Artez, 389 F.3d at 1111-12 (internal footnote omitted). "[T]he absence of constant visual contact with the informant conducting the transaction does not render a controlled purchase insufficient, nor does the absence of an audio-recording of the transaction." United States v. Artez, 389 F.3d at 1112.
In United States v. Richardson, 86 F.3d 1537 (10th Cir.1996) (cited with approval in United States v. Artez, 389 F.3d at 1112), abrogation on other grounds recognized by United States v. Pearce, 146 F.3d 771, 774 (10th Cir.1998), the Tenth Circuit held that probable cause existed based on a controlled purchase in which the officers had not before used the unwitting informant, Stone, and did not see the defendant, Richardson, provide the drugs to Stone, which the confidential informant ("CI") then provided to the officers once the CI left Stone's presence. 86 F.3d at 1545. The CI, who had "numerous prior cocaine transactions with Mr. Richardson and Mr. Stone," called the police officers and told them "that he could arrange a large cocaine transaction involving Mr. Richardson and Mr. Stone." 86 F.3d at 1545. The officer in charge verified the participants' identities and then coordinated a controlled purchase, which progressed as follows:
The Tenth Circuit has held that a police/citizen encounter which goes beyond the limits of an investigative stop is an arrest which probable cause or consent must support to be valid. See United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir.1993) ("An encounter between police and an individual which goes beyond the limits of a Terry stop, however, may be constitutionally justified only by probable cause or consent."). "Terry stops must be limited in scope to the justification for the stop . . . [and] the intrusiveness of a search or seizure will be upheld if it was reasonable under the totality of the circumstances." United States v. Perdue, 8 F.3d at 1462. "The government has the burden of demonstrating `that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.'" United States v. Perdue, 8 F.3d at 1462 (quoting Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)).
This Court has also engaged in the balancing act of deciding when a detention becomes an arrest. In United States v. Perea, 374 F.Supp.2d 961 (D.N.M.2005) (Browning, J.), aff'd sub nom. United States v. Burciaga-Burciaga, 147 Fed. Appx. 725 (10th Cir.2005) (unpublished), the Court had to determine whether the police involved transformed the investigative detention into an arrest by drawing their weapons on the suspect, handcuffing him, and placing him in the back of a police car. See United States v. Perea, 374 F.Supp.2d at 976. In that case, the Court determined that such measures were appropriate and did not elevate the investigative detention to the level of an arrest. See 374 F.Supp.2d at 976. The Court recognized that, "[i]n `most scenarios,' when officers effectuate what would otherwise be considered a Terry stop by pointing guns at a suspect, that stop is elevated to an arrest, which requires probable cause." 374 F.Supp.2d at 974. See United States v. Burciaga-Burciaga, 147 Fed.Appx. at 730 (affirming the Court's determination in United States v. Perea that the officers had reasonable suspicion to believe that the suspect might be armed and dangerous, justifying the officers' use of firearms and not transforming the vehicle stop into a formal arrest requiring probable cause); United States v. Gama-Bastidas, 142 F.3d 1233, 1240 (10th Cir.1998) ("[T]he use of firearms, handcuffs, and other forceful techniques are justified only by probable cause or when the circumstances reasonably warrant such measures.'").
There "exist[s], however, a limited set of circumstances in which officers may draw their guns at a suspect without transforming the stop into an arrest. `The use of guns in connection with a stop is permissible where the police reasonably believe the weapons are necessary for their protection.'" United States v. Perea, 374 F.Supp.2d at 974. See United States v. Merkley, 988 F.2d 1062, 1064 (10th Cir. 1993) (upholding reasonableness of stop when officers detained the defendant at gunpoint and placed him in handcuffs where suspect had threatened to kill someone and was pounding interior of truck with his fists); United States v. Lechuga, 925 F.2d 1035, 1040 (7th Cir.1991) (holding that the officer's "drawing his gun but
United States v. Burciaga-Burciaga, 147 Fed.Appx. at 730 (citations omitted) (internal quotation marks omitted).
"Excessive force claims, like most other Fourth Amendment issues, are evaluated for objective reasonableness based upon the information the officers had when the conduct occurred." Saucier v. Katz, 533 U.S. 194, 207, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). See Cordova v. Aragon, 569 F.3d 1183, 1188 (10th Cir. 2009) ("A Fourth Amendment claim of excessive force is analyzed under the `objective reasonableness' standard that governs other Fourth Amendment inquiries."). Hence, "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. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The Tenth Circuit has explained:
Weigel v. Broad, 544 F.3d 1143, 1151-52 (10th Cir.2008) (quoting Graham v. Connor, 490 U.S. at 396, 109 S.Ct. 1865) (internal quotation marks and citations omitted).
When analyzing a § 1983 claim for both excessive force and unlawful arrest, a court must look first at whether the arrest was lawful and then at whether the officers' use of force was reasonable in light of the lawfulness of the arrest. The Tenth Circuit has explained:
Cortez v. McCauley, 478 F.3d 1108, 1127 (10th Cir.2007) (emphasis added). Moreover,
Cortez v. McCauley, 478 F.3d at 1126. See Smith v. Kenny, 678 F.Supp.2d 1124, 1161 (D.N.M.2009) (Browning, J.) (noting that the finding whether the officers' use of force is "commensurate with the circumstances" depends upon whether the arrest was lawful). Thus, if it is clear that the amount of force used would have been reasonable if the detention or arrest had been appropriate, then the plaintiff can recover damages only for the unlawful arrest — including any damages that flow from the officers' use of force during the arrest — but there will be no separate excessive-use-of-force claim. See Cortez v. McCauley, 478 F.3d at 1127 (holding that a plaintiff must present evidence that the force used was more than that which would be required in effectuating a lawful arrest for the plaintiff to prevail in obtaining damages for both an unlawful arrest and the use of excessive force).
Reid brings three claims against the Defendants — a claim for violation of his right to procedural due process, a claim for violation of his Fourth Amendment right to be free from unreasonable searches, and a claim for violation of his Fourth Amendment right to be free from an unreasonable seizure. Although Reid alleges only one procedural due-process count, he asserts that the Defendants subjected him to an additional term of probation and seven days of incarceration; the Court will thus analyze these two portions of the procedural due-process claim separately. The Court will analyze the claims under absolute immunity, then under Heck v. Humphrey, followed by qualified immunity. The Court will dismiss most of the claims with prejudice under absolute or qualified immunity, and will dismiss the remaining
The Court will: (i) dismiss with prejudice the procedural due-process claim against Ross for Reid's seven days of incarceration, because Ross was involved only with obtaining the Order of Probation and subjecting Reid to an additional term of probation, but she was not involved in denying any procedures related to his seven days of incarceration; (ii) dismiss without prejudice the procedural due-process claim against Ross for Reid's additional term of probation, because Heck v. Humphrey bars Reid's procedural due process-claims based on his additional term of probation; (iii) dismiss with prejudice the Fourth Amendment search and Fourth Amendment seizure claims against Ross, because, although her conduct related to obtaining the Order of Probation led to other Defendants violating Reid's Fourth Amendment rights, the law was not clearly established; (iv) dismiss with prejudice the procedural due-process claims related to Reid's additional term of probation against Garcia, Hatley, Pautler, and Muller, because these Defendants were not involved in obtaining the Order of Probation, are absolutely immune for enforcing a facially valid court order, and did not have an independent duty to provide additional process for a court order they were enforcing; (v) dismiss with prejudice the procedural due process claims related to Reid's seven days of incarceration against Garcia, Hatley, Pautler, and Muller, because Reid cannot demonstrate that the seven-day delay between his arrest and a hearing prejudiced him; (vi) dismiss with prejudice the Fourth Amendment search claim against Garcia, Hatley, and Pautler, because these Defendants are absolutely immune for enforcing a facially valid court order, or, alternatively, qualifiedly immune for relying on a facially valid court order; (vii) dismiss with prejudice the Fourth Amendment seizure claim against Garcia, Hatley, and Pautler, because, although Reid has alleged that they falsely stated that Reid repeatedly violated the probation conditions and was a risk to himself, there was an independent basis for arresting Reid pursuant to a facially valid court order and for his violation of state law in consuming marijuana; and (viii) dismiss with prejudice the procedural due-process, Fourth Amendment search, and Fourth Amendment seizure claims against Muller, because Reid has not sufficiently alleged that Muller was involved in these purported violations. Because the Court is dismissing all of Reid's claims against all of the Defendants, the Court will grant the MTD. Further, the Court concludes that Heck v. Humphrey would bar Reid's proposed additional claims; the Court will thus deny the Motion to Amend.
Although the Defendants were state, rather than federal, probation officers, the relevant inquiry focuses on whether they were acting in a quasi-judicial function, that is, whether their activities were "intimately associated with the judicial phase of the criminal process." Tripati v. U.S.I.N.S., 784 F.2d at 348. The Honorable James R. Carrigan, United States District Judge for the District of Colorado, has stated that "[t]here is no logical reason that federal probation officers should have
According to the FAC, in June, 2007, Ross "questioned why [Reid] was no longer on probation," and,
FAC ¶ 10, at 3. Further, "[a]fter Defendant Ross was successful in obtaining the court's signature, she presented [Reid] with the new Order of Probation in CR-139, which purported to extend his probation from March 14, 2007 until March 13, 2012." FAC ¶ 11, at 3. "Although [Reid] questioned the validity of extending his probation any further, he was assured by Defendant Ross that he had an additional five (5) years of probation to serve under his April 19, 2001 convictions." FAC ¶ 11, at 3. The FAC's version of events is slightly different than what Reid argued at the hearing, when he asserted that Ross presented the Order of Probation to Reid before submitting it to Judge Purcell:
Tr. at 56:25-57:5 (Frost). Nothing in the Order of Probation indicates whether Reid or Judge Purcell was the first to sign; the Order of Probation lists sixteen probation conditions, with Reid's initials by each condition, three signatures on the bottom of the last page, including Judge Purcell's, Reid's, and Ross' signatures, and below the signatures is the handwritten date "6-12-7." Order of Probation at 1-2. Because the Order of Probation does not provide any insight, the Court must take the facts as Reid alleged them in the FAC. See Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.2009) ("[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pled factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff." (citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006))). The issue is whether Ross was acting in a judicial capacity when she (i) "questioned why [Reid] was no longer on probation," (ii) "filled out a new Order of Probation for [Reid]," (iii) "submitted it to the district court for its signature," (iv) "presented [Reid] with the new Order of Probation," and (v) assured Reid
The Tenth Circuit's analysis in Mee v. Ortega is particularly useful in determining whether Ross was performing a judicial or prosecutorial function that absolute immunity protects, or whether she was performing a law enforcement function such that qualified immunity is more appropriate. In Mee v. Ortega, the defendant, Jose Ortega, a Colorado state parole officer, heard a report from the sheriff's department that the plaintiff, Stephen Mee, had threatened a person who had filed charges of harassment against him; Ortega filed a complaint that led to Mee's arrest for violating parole conditions, and, while Mee was in jail, Ortega initiated parole revocation proceedings against him. See 967 F.2d at 424. Despite the advice from two lawyers in the county district attorney's office that the complaint could not serve as the basis for revocation of parole, Ortega kept Mee in custody pending the revocation hearing, and when Mee sought a writ of habeas corpus, the court "denied the writ on the basis of Mr. Ortega's testimony that a district attorney, whom he could not name, was planning to pursue revocation at the parole hearing." 967 F.2d at 424-25. At the revocation hearing, the district attorney's office recommended against revocation; the parole board agreed and released Mee. See 967 F.2d at 425. Mee sued Ortega and Ortega's supervisor for holding him in custody pending the parole revocation hearing, alleging that they violated his due-process rights. See 967 F.2d at 424. The district court relied heavily on Tripati v. U.S.I.N.S., and concluded that Ortega and his supervisor "played an integral role in the judicial process and therefore were shielded from section 1983 liability by the doctrine of quasi-judicial immunity," but the Tenth Circuit disagreed. 967 F.2d at 425. Starting with the presumption that "qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties," 967 F.2d at 425, the Tenth Circuit explained that cases "involving officials who perform functions connected to, but outside of, the traditional criminal proceeding demand that we pay close attention to the role the official plays," 967 F.2d at 426. The Tenth Circuit pointed to several factors to help "determine the contours of the line between absolute and qualified immunity":
967 F.2d at 426 (quoting Cleavinger v, Saxner, 474 U.S. 193, 202, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985)). These factors are "characteristic of the judicial process" and should be "considered in determining absolute as contrasted with qualified immunity." Cleavinger v. Saxner, 474 U.S. at 202, 106 S.Ct. 496. The Tenth Circuit admitted that "this is a battle about characterization," and noted that it had previously "focused on the distance between the challenged functions and those benchmark functions to which absolute immunity has been extended":
Ross' activities in determining that Reid should be subject to further probation, filling out a new Order of Probation, and submitting it to Judge Purcell are more analogous to a police officer submitting a warrant application to a court than to a prosecutor presenting a case. See Malley v. Briggs, 475 U.S. 335, 341-42, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) (holding that a police officer who allegedly caused plaintiffs to be unconstitutionally arrested by presenting a judge with a complaint and supporting affidavit which failed to establish probable cause was entitled to qualified, but not absolute, immunity from liability for damages). Unlike presentence reports, which are "prepared exclusively at the discretion of and for the benefit of the court," Tripati v. U.S.I.N.S., 784 F.2d at 348, there is no indication in the FAC that Ross prepared the Order of Probation at Judge Purcell's direction, and the Court cannot find any authority under New Mexico state law that there is any "standing order" analogous to the federal probation officers' duties to prepare presentence reports in federal court.
Further, many of the six factors that are characteristic of the judicial process weigh in favor of finding that Ross was not performing a judicial function. Those six factors are:
Cleavinger v. Saxner, 474 U.S. at 202, 106 S.Ct. 496. Several of these factors weigh against finding that Ross was performing a judicial function. First, qualified immunity adequately assures that a probation officer who reviews a probationer's file, determines that the person should be subject to further probation, and submits an order to a court for its signature can perform these functions without harassment or intimidation; although the Court wants to ensure that probation officers are not chilled from vigorously doing their jobs, qualified immunity is adequate to protect an analogous role for police officers who submit warrant applications to a court. As the Tenth Circuit said, "[a]ny potential chilling effect is minimized by the very real protection against suit afforded by qualified immunity." Mee a Ortega, 967 F.2d at 428. Next, probation officers in the state system, being part of the executive branch at the New Mexico Corrections Department, are not similarly protected from political influence like judges, although elected state judges are also not as protected from political influence as appointed federal judges. Further, it does not appear that Ross consulted with a lawyer or required Reid to consult with an attorney before submitting the Order of Probation to Judge Purcell, and insulating a probation officer from any direct legal supervision may create a risk that precedent will not control decisionmaking. See Mee v. Ortega, 967 F.2d at 429 ("[B]y insulating the parole officer from any direct legal supervision, the Colorado statutes create the risk that precedent will not control decisionmaking."). Requiring some legal supervision is a safeguard that may check probation and parole officers "who impermissibly infringe a parolee's constitutionally protected liberty interest." Mee v. Ortega, 967 F.2d at 428-29. It appears from the FAC that, when Ross submitted the Order of Probation to Judge Purcell, Reid was not present, meaning that the hearing was not adversarial in nature, further weighing against finding that Ross was performing a judicial function.
On the other hand, some of the factors weigh in favor of finding that Ross was performing a judicial function. First, the factor regarding the "safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct" cuts in both directions, because there are some, but perhaps not adequate, safeguards available. The FAC does not indicate whether Ross needed to get a supervisor to review the Order of Probation before she submitted it to Judge Purcell, and there is no supervisor's signature on the Order of Probation. The fact that Judge Purcell had to sign the Order of Probation before it took effect is not a sufficient safeguard, because the same is true about a judge signing a warrant application, in which case the officer receives only qualified immunity. On the other hand, there are several avenues for a probationer to challenge an order of probation after it issues, such as by filing a motion to correct or modify the sentence, see NMRA 5-801, or by appealing the order of probation, see N.M. Stat. Ann. § 39-3-3. Because placing someone on probation limits their liberty, but is not as serious as incarceration, the safeguards available to challenge an order of probation after it has issued may be sufficient, reducing the need for separate damages suits. The last factor — "the correctability of the error on appeal" — counsels slightly in favor of finding that Ross was performing a judicial function, because Reid could have challenged the Order of Probation and avoided
Although there are factors that weigh for and against finding that Ross was performing a judicial function, the Court concludes that, as a whole, her conduct in preparing a new Order of Probation and presenting it to Judge Purcell is more akin to a law enforcement function—such as submitting an application for a warrant to a court—than to a judicial function, and thus, qualified immunity is more appropriate. Further, the Court is influenced by the Supreme Court's caution that absolute immunity for judicial functions should be "extended no further than its justification would warrant." Harlow v. Fitzgerald, 457 U.S. at 811, 102 S.Ct. 2727.
The Defendants' supplemental authority, McAllister v. District of Columbia, does not dictate a different result. In that case, the District of Columbia Court of Appeals extended absolute immunity to a courtroom clerk who made a mistaken entry on a Judgment and Commitment Order, which the sentencing judge then signed and which resulted in the plaintiff being imprisoned "for a period of time far in excess of the maximum term permitted for that offense." 653 A.2d at 850. The District of Columbia Court of Appeals extended quasi-judicial immunity to the courtroom clerk based on the United States Court of Appeals for the District of Columbia Circuit's decision to grant a courtroom clerk absolute immunity, reasoning that, if "immunity were not extended to clerks, courts would face the danger that disappointed litigants, blocked by the doctrine of absolute immunity from suing the judge directly would vent their wrath on clerks, court reporters, and other judicial adjuncts." 653 A.2d at 851 (quoting Sindram v. Suda, 986 F.2d 1459, 1461 (D.C.Cir.1993)). The District of Columbia Court of Appeals did not, however, discuss how the clerk's conduct in preparing an order and presenting it to the judge was integrally related to the judicial process, even though it acknowledged that absolute immunity "`is justified . . . by the functions it protects and serves, not by the person to whom it attaches.'" McAllister v. District of Columbia, 653 A.2d at 851 (quoting Forrester v. White, 484 U.S. 219, 227, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988)).
There are situations in which a court clerk performs quasi-judicial functions. For example, the Tenth Circuit held that
Lundahl v. Zimmer, 296 F.3d 936, 939 (10th Cir.2002) (citations omitted). It may also be true that the clerk in McAllister v. District of Columbia performed a judicial function when he or she prepared the Judgment and Commitment Order, but the Court does not think that every person who prepares an order and submits it to a court for its signature is necessarily performing a judicial function. The District of Columbia Court of Appeals' cursory analysis does not convince the Court that Ross is entitled to absolute immunity in this case.
Ross is also not entitled to quasi-judicial immunity for her conduct in presenting the Order of Probation to Reid or assuring him that he had five additional years of
The Court first notes that the FAC does not sufficiently allege who conducted the search at Reid's house: he alleges that, at least one time during his extended probation, "a PO appeared at the Plaintiff's home in Logan, New Mexico and searched the premises." FAC ¶ 13, at 3. Although Garcia was supervising Reid at some point during the probation period, see FAC ¶ 14, at 4 ("[A]t some point prior to September of 2011, the Plaintiff was being directly supervised by Defendant Gregory Garcia, who in turn was subject to the supervision of the Defendant Kristy Muller."), the FAC does not allege that Garcia was Reid's PO at the time a PO searched Reid's house, nor does it allege that Garcia was the PO that searched Reid's house. Because Reid failed to plead who searched his house or which Defendant was responsible for that conduct, the Court will dismiss the Fourth Amendment search claim against the Defendants for searching Reid's house. See Robbins v. Oklahoma, 519 F.3d at 1249-50 (stating that, when a plaintiff sues "the government agency and a number of government actors sued in their individual capacities," it is "particularly important . . . that the complaint make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him or her, as distinguished from collective allegations against the state" (emphasis in original)).
Reid alleges in the FAC that Hatley and Pautler "demanded that the Plaintiff take a urine test and he complied," FAC ¶ 14, at 4, and that they violated the Fourth Amendment by "forc[ing] the Plaintiff to submit to a urine test . . . without a warrant, absent exigent circumstances," FAC ¶ 26, at 6. The Defendants contend that Hatley and Pautler were enforcing a facially valid Order of Probation and that they are entitled to absolute quasi-judicial immunity. For Hatley and Pautler to be entitled to quasi-judicial immunity, the order must be facially valid, "the judge issuing the disputed order must be immune from liability in his or her own right, the officials executing the order must act within the scope of their own
The Order of Probation was facially valid, although it was erroneous under New Mexico law.
N.M. Stat. Ann. § 31-20-5. The Court of Appeals of New Mexico explained that § 31-20-5 "states two limitations upon the length of probation. First, the probation cannot exceed the period of suspension. . . . Second, the proviso to § 31-20-5 states `the total period of probation shall not exceed five years.'" State v. Devigne, 1981-NMCA-088, ¶ 26. When the defendant in State v. Devigne was convicted, at one trial, for five counts of burglary, the district court sentenced the defendant to three years imprisonment on each of the five counts, with two of the sentences to be served consecutively for a total of six years. See 1981-NMCA-088, ¶ 22. The Court of Appeals of New Mexico concluded that, "[o]n the basis of the internal wording of § 31-20-5, and the legislative history,. . . the proviso of § 31-20-5 means that the maximum probation for the five sentences imposed upon defendant, for convictions that occurred at one trial, was five years." 1981-NMCA-088, ¶ 33. Although the Defendants contend that a district court may order more than five years
This conclusion, that the Order of Probation was erroneous under New Mexico law, does not mean, however, that the Order of Probation was not facially valid. As the Tenth Circuit explained in Moss v. Kopp,
559 F.3d at 1165. In this case, the Order of Probation is facially valid; although it extended Reid's probation for CR-139 without legal authority, there are a number of scenarios in which the Order of Probation would have been proper under New Mexico law, and the face of it does not eliminate those possibilities. For example, it appears from the FAC that Reid served probation for CR-138 and CR-139 concurrently, rather than consecutively, based on the February, 2006, amended order of probation; had Reid served his probation sentences in CR-137, CR-138, and CR-139 consecutively, then he could have started serving probation for CR-139 in 2007. Further, the Order of Probation does not indicate whether he was incarcerated for any period of time before being placed on probation, nor does it rule out the possibility that he violated probation conditions and was subject to additional probation. See State v. Baca, 2005-NMCA-001, ¶ 18, 136 N.M. 667, 104 P.3d 533 (noting that the maximum period of probation that a district court may impose at sentencing is a total of five years, based on N.M. Stat. Ann. § 31-20-5(A) and State v. Devigne, but concluding that five years is not the total amount of time a person can serve on probation when the person has repeatedly violated probation conditions, because N.M. Stat. Ann. § 31-21-15(B) gives the sentencing court the authority to continue the original probation,
Regarding Hatley's and Pautler's actions in requiring Reid to submit urine drug tests, the other three requirements for quasi-judicial immunity when enforcing a facially valid court order are easily met: "the judge issuing the disputed order must be immune from liability in his or her own right, the officials executing the order must act within the scope of their own jurisdiction, and the officials must only act as prescribed by the order in question." Moss v. Kopp, 559 F.3d at 1163 (citing Turney v. O'Toole, 898 F.2d at 1472, 1474). First, Judge Purcell, who issued the disputed order, would be immune from liability in his own right, because he performed a judicial function and did not act in complete absence of all jurisdiction. See Mireles v. Waco, 502 U.S. at 11-12, 112 S.Ct. 286 (explaining that a judge's immunity from § 1983 liability "is overcome in only two sets of circumstances": (i) "a judge is not immune from liability for nonjudicial acts, i.e., actions not taken in the judge's judicial capacity," and (ii) "a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction"). Judge Purcell performed a judicial action in signing the Order of Probation, and in granting Reid's probation officers authority to order Reid to "provide urine or breath test specimens for laboratory analysis." Order of Probation at 2. Ordering a probationer to submit to drug tests as a probation condition is within a judge's judicial purview. See United States v. Walser, 275 F.3d 981, 987 (10th Cir.2001) ("Courts are given broad discretion in the imposition of conditions of supervised release"). Further, Judge Purcell was not acting in "complete absence of all jurisdiction" when he issued the Order of Probation, because district judges have authority to set probation conditions. See N.M. Stat. Ann. § 31-20-5A (providing the authority for a district court to place a defendant on probation). As the Supreme Court has explained, "the scope of the judge's jurisdiction must be construed broadly where the issue is the immunity of the judge," and "the necessary inquiry in determining whether a defendant judge is immune from suit is whether at the time he took the challenged action he had jurisdiction over the subject matter before him." Stump v. Sparkman, 435 U.S. at 356, 98 S.Ct. 1099. "A judge may act in excess of his subject matter jurisdiction and still retain absolute judicial immunity; only in the unusual circumstances of complete and clear absence of all jurisdiction is absolute immunity inappropriate." Snell v. Tunnell, 920 F.2d at 694. Although Reid has alleged that he completed the five years' probation for CR-139 three months before Judge Purcell signed the Order of Probation, he has not indicated in the FAC that a court discharged him from any further obligations on CR-139, and, thus, Judge Purcell at least arguably still retained jurisdiction over Reid. See N.M. Stat. Ann. § 31-20-9 ("Whenever the period of deferment expires, the defendant is relieved of any obligations imposed on him by the order of the court and has satisfied his criminal liability for the crime, the court shall enter a dismissal of the criminal charges."). The Court does not think
Next, Hatley and Pautler were acting in the scope of their own jurisdiction as probation officers to supervise Reid, and, when they ordered Reid to submit to urine drug tests, were acting "as prescribed by the order in question," Moss v. Kopp, 559 F.3d at 1163, which required Reid to "provide urine or breath test specimens for laboratory analysis upon request of the Probation and Parole division," Order of Probation ¶ 9, at 2. Although Hatley and Pautler were not normally supervising Reid, Reid did not allege in the FAC that they did not have authority to supervise him on September 7, 2011, when Reid went to the Tucumcari probation office. See FAC ¶ 13, at 3-4. Nor did Reid allege that Hatley and Pautler acted in a manner that exceeded the Order of Probation's scope. The Court concludes that Hatley and Pautler were enforcing a facially valid court order when they required Reid to submit to a urine drug test on September 7, 2011, and, thus, are entitled to absolute quasi-judicial immunity for that conduct. The Court will grant the MTD in part on the Defendants' absolute-immunity defense, and dismiss the Fourth Amendment search claims against Garcia, Muller,
On the other hand, Garcia, Pautler, and Hatley are not entitled to absolute immunity for their conduct in filling out the Arrest Order, including that they "falsely stated that the Plaintiff was a [risk] to himself and that he was guilty of repeated violations of supervised conditions" while filling out the Arrest Order. FAC ¶ 15, at 4. See Arrest Order at 1 (stating "risk" rather than "danger"). Their conduct in filling out the Arrest Order is similar to Ross' conduct in obtaining the Order of Probation, in that it is more analogous to a police officer seeking a warrant than to a judicial act. Instead of absolute quasi-judicial immunity, the Court will consider whether qualified immunity protects Garcia, Hatley, and Pautler for arresting Reid, and falsely stating that he was a risk to himself and repeatedly violated his supervised conditions.
Although the parties dedicated the bulk of the briefing and argument to the Defendants' absolute and qualified immunity defenses, the Defendants raised an issue in response to the Court's minute orders—whether Heck v. Humphrey bars Reid's § 1983 claims. In the Defendants' Supp., the Defendants explain that they did not raise Heck v. Humphrey and Wilkinson v. Dotson arguments in the MTD, "because of the arguably sufficient `favorable termination' allegation" in the FAC, and "because defendants did not want to detract from the immunity arguments." Defendants' Supp. at 4. In response to the Court's second minute order, the Defendants briefed the issue. They contend
The Supreme Court has stated that
Wilkinson v. Dotson, 544 U.S. at 82, 125 S.Ct. 1242 (emphasis in original).
The first question is whether any of Reid's claims in this § 1983 action would necessarily demonstrate the invalidity of his confinement or sentence. Reid has brought three claims—procedural due process, Fourth Amendment search, and Fourth Amendment seizure. On Reid's procedural due-process claim, he asserts that "[a]t no time prior to June of 2007 was the Plaintiff charged with any crime or provided with any due process that would justify the imposition of an additional five (5) years of probation and his arrest in September of 2011 for violating the conditions of his release." FAC ¶ 20, at 5. On the Fourth Amendment search claim, Reid alleges that the Defendants "forced the Plaintiff to submit to a urine test and searched his home, without a warrant, absent exigent circumstances." FAC ¶ 26, at 6. Regarding the Fourth Amendment seizure claim, Reid asserts that "[a]t all times material hereto it was a clearly established law that a law enforcement officer could not arrest an individual without probable cause and/or an arrest warrant," and, that, "under New Mexico law a probation officer has no independent law enforcement authority, but may only enforce the terms of valid probation order." FAC ¶ 30, at 7. He alleges that the Defendants "arrested the Plaintiff on September 7, 2011 without probable cause and without a warrant." FAC ¶ 31, at 7. On each of these claims, success would necessarily demonstrate the invalidity of the June 2007 Order of Probation.
In Reid's procedural due-process claim, he is not just asserting that he did not receive adequate process that might lead to a different result; he is asserting that there was no basis for the Order of Probation. If he were still subject to the Order of Probation, he would be challenging the fact and duration of his "confinement," that is, his time on probation, which would be the proper subject for habeas relief rather than a § 1983 action.
Heck v. Humphrey, 512 U.S. at 498, 114 S.Ct. 2364. Reid's proper federal remedy, if he were still on probation, would be to petition for habeas relief:
Mays v. Dinwiddie, 580 F.3d 1136, 1139 (10th Cir.2009). Similarly, Reid's additional probation term, with its restraints on his liberty, would form the proper basis for habeas relief. Stated differently, Reid is alleging that he was placed on probation without first being convicted of a crime and given the process attendant to being convicted of a crime. Success on the due-process claim would mean showing that he was not convicted of a crime or otherwise given process that would justify a probation term, and would show that the Order of Probation was invalid.
On the Fourth Amendment search claim, Reid is alleging that the probation officers did not have any legal basis for searching his home or making him submit to drug tests; because the legal basis is the June 2007 Order of Probation, success on the Fourth Amendment search claim would necessarily demonstrate the invalidity of the Order of Probation. Although the Supreme Court in Heck v. Humphrey gave an example of a situation in which an unreasonable search claim would not necessarily invalidate the conviction, the example it provided does not resolve the question before the Court. In context, the Supreme Court explained that, when "the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit." Heck v. Humphrey, 512 U.S. at 487, 114 S.Ct. 2364 (emphasis in original).
Similarly, Reid asserts that the probation officers had no independent basis to arrest him, other than allegedly violating the Order of Probation. Again, success on this claim would necessarily demonstrate the invalidity of the Order of Probation, because there is no other basis allowing the probation officers to arrest him. To succeed, Reid will have to establish that the Order of Probation was invalid, because, otherwise, it gives the probation officers authority to arrest Reid. Although the Tenth Circuit has explained that "false arrest claims generally do not implicate Heck, because improprieties in arrest typically do not undermine the validity of an ensuing conviction," Jackson v. Loftis, 189 Fed.Appx. 775, 779 (10th Cir.2006) (unpublished) (citing Beck v. City of Muskogee Police Dep't, 195 F.3d 553, 558 (10th Cir. 1999); Price v. Philpot, 420 F.3d 1158, 1163 n. 3 (10th Cir.2005)), it has also recognized that some false arrest claims would implicate the validity of the conviction or sentence; in Jackson v. Loftis, the Tenth Circuit said that, "given the particular nature of plaintiff's claim—that his arrest was improper because he had not committed the alleged offenses—this may be the exceptional false arrest case that satisfies the `necessarily called into doubt' condition for invoking Heck." Jackson v. Loftis, 189 Fed.Appx. at 779 (emphasis in original). Reid's Fourth Amendment seizure claim again depends on proving that the Order of Probation was invalid, because it provided the basis for the Defendants to arrest him. The Court concludes that all three of Reid's claims, if successful, would necessarily demonstrate the invalidity of the Order of Probation. Reid did not argue otherwise; in responding to the Court's minute order regarding Heck v. Humphrey, Reid asserted only that he met the favorable-termination requirement, but he did not argue that his claims do not implicate Heck v. Humphrey on other grounds. See Reid's Second Supp. at 6-7.
Because Reid's challenge implicates the validity of his sentence, that is, the June 2007 Order of Probation, he must show that "the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Heck v. Humphrey, 512 U.S. at 487, 114 S.Ct. 2364. To satisfy this requirement, Reid points to the Stipulated Order, which states:
IT IS THEREFORE ORDERED.
Stipulated Order at 1. Reid also points to the Court Log, which includes this interaction:
Court Log at 2. Neither the Stipulated Order nor the Court Log specifically invalidates the June 2007 Order of Probation. At most, the Stipulated Order may imply that the Order of Probation was improper based on the dates: the Stipulated Order states that, on April 19, 2001, Reid received a suspended sentence and was put on five years of probation, and that, on October 17, 2011, he was "satisfactorily discharged" from probation. This statement may imply that any probation past 2006, five years after the 2001 conviction, was improper, but it does not necessarily so imply, because there may be probation violations that extended the probation term. The Honorable Albert J. Mitchell, Jr., District Judge for the Tenth Judicial District Court in New Mexico, who signed the Stipulated Order, did not make any findings in the Stipulated Order, or, as far as the Court can tell, during the proceeding in which he signed the Stipulated Order,
In Garey v. Marshall, 361 Fed.Appx. 915 (10th Cir.2010) (unpublished), the plaintiff, Jacob Garey, Jr., brought a § 1983 action alleging that his convictions and sentences in state court constituted false imprisonment and violated the double jeopardy clause, and seeking money damages for his allegedly unlawful incarceration, but the Tenth Circuit held that his " § 1983 complaint cannot succeed on its merits because there has been no termination on the challenged criminal proceedings in Mr. Garey's favor." 361 Fed.Appx. at 917. During the state criminal proceedings, Garey had filed a motion "styled as a `Motion to Amend Judgment and Sentence of Probation Commitment to Penitentiary,'" but the state court dismissed the motion as moot, because the state and Garey "stipulated that Mr. Garey had been released from custody on those convictions and had completed his terms of probation and parole." 361 Fed.Appx. at 916-17. Although the Tenth Circuit did not cite Heck v. Humphrey, the conclusion that the parties' stipulation that Garey had completed his probation and parole terms was not a favorable termination would seem to apply with equal force in this case, where the parties stipulated that Reid "is satisfactorily discharged from Supervised Probation," but the Stipulated Order does not say that the June 2007 Order of Probation was invalid. The Order of Probation has not been "declared invalid by a state tribunal authorized to make such determination." Heck v. Humphrey, 512 U.S. at 487, 114 S.Ct. 2364. See Morris v. McAllester, 702 F.3d 187, 191 (5th Cir.2012) ("Morris's order does not include express language dismissing his indictment, nor does it state that his guilty plea is withdrawn, that the verdict is set aside, or that his civil liberties are restored. Accordingly, we hold that the district judge properly concluded that Morris's claims were barred by Heck."), cert. denied, ___ U.S. ___, 134 S.Ct. 80, 187 L.Ed.2d 62 (2013).
Because Reid is no longer on probation and is not in jail on the alleged probation violation, he is no longer in "custody" for habeas relief, and any appeal from the June 2007 Order of Probation would be moot. When a § 1983 plaintiff is no longer in custody and does not have the opportunity to invalidate the conviction or sentence, the Tenth Circuit has explained that the plaintiff may still be able to maintain the § 1983 action: "[A] petitioner who has no available remedy in habeas, through no lack of diligence on his part, is not barred by Heck from pursuing a § 1983 claim." Cohen v. Longshore, 621 F.3d at 1317 (emphasis added). The Tenth Circuit has affirmed dismissal of plaintiffs' § 1983 claims when they do not exercise diligence to invalidate their convictions. For example, in Carbajal v. Hotsenpiller, the Tenth Circuit "agree[d] with the district court that [the plaintiff's] actions evince a lack of diligence," because "the complaint is clear that Carbajal was aware of the claimed defects in the investigation that led to his convictions in 2000, but only set out to investigate in 2010." 524 Fed.Appx. at 428. Similarly, here, Reid "questioned the validity of extending his probation any further," FAC ¶ 11, at 3, but he did not do anything for four-and-a-half years to confirm his suspicions. In response to the Court's second minute order, in which the Court asked whether Reid had to exhaust his state remedies, Reid responded that the question
Reid's Second Supp. at 3-4. Reid tries to excuse his lack of action by pointing to his lack of knowledge, but this failure to act demonstrates his lack of diligence. There was nothing preventing him from investigating his suspicions regarding the Order of Probation, even after he signed it. He did not refuse to sign the order. He did not appeal it. He did not write a letter to the court. He "questioned the validity of extending his probation any further," FAC ¶ 10, at 3, yet did nothing to protect his claims. The Court concludes that Reid has not met the diligence requirement from Cohen v. Longshore regarding his additional term of probation. In contrast, Reid was incarcerated for seven days after the alleged probation violation, and he quickly attempted to be released. Regarding this short period of incarceration, the Court finds that Reid was diligent, and, although there is nothing invalidating his incarceration or a reversal on appeal, he acted diligently in seeking to be released; thus, Cohen v. Longshore permits him to pursue the procedural due-process claim for the seven days of incarceration. The Court will dismiss without prejudice Reid's procedural due-process claim and Fourth Amendment search claim related to his additional term of probation, because, through his own lack of diligence, the probation term was not "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determinations, or called into question by a federal court's issuance of a writ of habeas corpus." Heck v. Humphrey, 512 U.S. at 486-87, 114 S.Ct. 2364. The Court concludes that Heck v. Humphrey does not bar Reid's procedural due-process claim aimed at the seven days he was incarcerated or to Reid's Fourth Amendment seizure claim.
Because the Court has granted the MTD on the Defendants' absolute-immunity defense only for the Fourth Amendment search claim against Garcia, Pautler, Hatley, and Muller, and the procedural due-process claim against Garcia, Pautler, and Hatley regarding the additional term of
Robbins v. Oklahoma, 519 F.3d at 1249 (citations omitted) (footnote omitted).
Taking as true the FAC's factual allegations, three months after Reid completed five years of probation in CR-139, Ross filled out a new Order of Probation and submitted it to Judge Purcell to sign. See FAC ¶ 10, at 3. Ross then presented the signed Order of Probation to Reid and assured him that he had an additional five years of probation to serve under his April 19, 2001, convictions. See FAC ¶ 11, at 3. Reid contends that "[a]t no time prior to June of 2007 was the Plaintiff charged with any crime or provided with any due process that would justify the imposition of an additional five (5) years of probation and his arrest in September of 2011 for violating the conditions of his release," and that "[t]he Defendants" deprived him of his liberty interest without due process of law by requiring the Plaintiff to submit to an additional four and one-half (4½) years of supervised probation and a period of seven (7) days of incarceration." FAC ¶¶ 20-21, at 5-6. Further, he asserts that "[a]t all times material hereto it was a clearly established law that an individual cannot be placed on probation and required to adhere to the terms of probation and arrested for allegedly violating those terms, without first being charged with a crime and being provided with due process prior to a conviction." FAC ¶ 19, at 5. The Court understands Reid's allegation against Ross to be that she initiated an additional term of probation without providing him any process, such as notice or a hearing. The Court has previously indicated that it will analyze the procedural due-process claim in two parts; first, for the additional term of probation, and second, for the seven days of incarceration. Because Reid does not allege that Ross
As an initial note, the Court thinks that Reid has met his pleading obligations regarding Ross' state-of-mind for the procedural due-process claim. In Brown v. Montoya, the Tenth Circuit noted that "[a]ccording to the Supreme Court, a plaintiff must show that the defendant was more than simply negligent to make out a procedural due process claim," that "[t]he circuit courts have responded accordingly in requiring a state of mind element such as recklessness or gross negligence," but that the Tenth Circuit had "not resolved th[e] issue" and did not need to "decide the appropriate state of mind test to resolve" Brown v. Montoya, because the plaintiffs complaint "alleges conduct that was `intentional, malicious, sadistic, willful, wanton, obdurate, and in gross and reckless disregard" of the plaintiff's constitutional rights. 662 F.3d at 1170. Similarly, Reid alleges in the due process count that "[t]he conduct of the Defendants was intentional, willful, wanton, and in reckless disregard of the rights of the Plaintiff." FAC ¶ 23, at 6. The Court does not think that these allegations are conclusory, because Reid also alleges facts that support a finding of this state of mind, and which particularly identify Ross:
FAC ¶ 10, at 3. Although it is not entirely clear what mental state Reid had to allege to maintain the procedural due-process claim, Reid's allegations against Ross are very similar to the plaintiffs allegations in Brown v. Montoya, and, because the Tenth Circuit held that the plaintiff had sufficiently pled scienter in Brown v. Montoya, the Court reaches the same conclusion here. See Fed.R.Civ.P. 9(b) ("In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.").
To maintain a procedural due-process claim, Reid must have a protected property or liberty interest to which due process applies, and he must not have been afforded an appropriate level of process. See Camuglia v. City of Albuquerque, 448 F.3d at 1219.
Camuglia v. The City of Albuquerque, 448 F.3d at 1220.
Reid had a protected liberty interest in not being placed on probation without first being convicted of a crime. As Reid alleged in the FAC and which the Order of Probation bears out, being on probation for him meant that
FAC ¶ 12, at 3. Although the Third Circuit in Skipworth v. United States noted that extending probation is "clearly not as `grievous' a `loss' as revocation," it nonetheless noted that "probation entails significant restrictions on an individual." 508 F.2d at 601. The Third Circuit distinguished between extending probation, and revoking probation, when it determined how much process was due and when, not whether process was due. See 508 F.2d at 601-02. Further, although "probationers `do not enjoy the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions,'" Trask v. Franco, 446 F.3d at 1044-45 (alterations in original) (quoting Griffin v. Wisconsin, 483 U.S. 868, 874, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987)), Reid was not a probationer when Ross submitted the new Order of Probation for Judge Purcell to sign: according to the FAC, Reid had finished his probation three months earlier, see FAC ¶ 10, at 3. Reid had a protected liberty interest in being free from probation restrictions.
The harder question is determining whether Reid had the appropriate level of process available to him through the post-deprivation remedies that the Defendants listed in the Defendants' Supp., including (i) filing a motion to correct or modify the sentence pursuant to rule 5-801 NMRA; (ii) appealing the terms and conditions of probation; (iii) filing a petition for writ of habeas corpus pursuant to N.M. Stat. Ann. § 44-1-1; or (iv) filing a petition for writ of habeas relief under 28 U.S.C. § 2241, see Defendants' Supp. at 2-4, or whether due process required that Reid be given a pre-deprivation hearing. Reid maintains that he had a right to a hearing before Judge Purcell signed the Order of Probation, especially because the effect of the Order of Probation, in his view, was to increase the severity of his sentence. See Reid Supp. at 1-2. The Defendants, on the other hand, maintain that this situation is analogous to extending
As supporting authority, Reid points to New Mexico statutes and cases to demonstrate that he should have been given a hearing before Judge Purcell signed the Order of Probation. For example, rule 5-612 of the New Mexico State Court Rules provides that, "[e]xcept as otherwise provided by these rules, the defendant shall be present at all proceedings, including the arraignment, all hearings and conferences, argument, the jury trial and during all communications between the court and the trial jury." NMRA 5-612(A). A defendant may waive the right to be personally present, see NMRA 5-612(B), and a defendant does not need to be present in the following situations:
NMRA 5-612(D). The Court of Appeals of New Mexico has indicated that a defendant does not need to be present at post-conviction hearings where a sentence is not imposed. See State v. Sommer, 1994-NMCA-070, ¶ 6, 118 N.M. 58, 878 P.2d 1007. When the post-conviction hearing is to reconsider a sentence, the defendant does not need to be present unless the "hearing results in the terms of the sentence being made more onerous." 1994-NMCA-070, ¶ 8. As far as the Court can tell, Reid is correct that there is no statutory authority in New Mexico for a court to extend a probation sentence. There is statutory authority for a court to extend a probation period for juveniles:
N.M. Stat. Ann. § 32A-2-23. There is not, however, a similar extension provision that would allow a court to extend probation for adults. Reid has also pointed to two New Mexico cases that support his argument. In State v. Crespin, 1981-NMCA-095, 96 N.M. 640, 633 P.2d 1238, the Court of Appeals of New Mexico stated that "the trial court correctly ruled that it could not extend the length of the probation term; the trial court's authority as to length of probation was the authority conferred by our statutes." 1981-NMCA-095, ¶ 9. The Court of Appeals of New Mexico explained that a trial court may not modify probation conditions to increase the penalty after it has set the probation conditions:
State v. Crespin, 1981-NMCA-095, ¶ 11, 96 N.M. 640, 633 P.2d 1238. The defendant in that case violated his probation conditions and requested that the trial court extend his probation period rather than impose incarceration. See 1981-NMCA-095, ¶ 12. The Court of Appeals of New Mexico explained that, "[a]fter imposition of a valid sentence, a court may not increase the penalty." 1981-NMCA-095, ¶ 13. "The statutes cited in this opinion have not authorized a trial court to extend the length of probation or change the conditions of probation so as to increase the penalty even if a defendant is agreeable to such changes." State v. Crespin, 1981-NMCA-095, ¶ 15, 96 N.M. 640, 633 P.2d 1238. In State v. Castillo, 1980-NMCA-020, 94 N.M. 352, 610 P.2d 756, the trial court extended the defendant's probation period from one to five years, and after the defendant had served her first year of probation, she violated one of the conditions, leading to the court revoking her probation and ordering her to serve the balance of her sentence in jail. See 1980-NMCA-020, ¶ 2. The defendant argued on appeal that the "the court could not validly extend her probationary period, and thus the subsequent revocation, as well as her reincarceration, were invalid." 1980-NMCA-020, ¶ 8. The Court of Appeals of New Mexico agreed with the defendant, stating that, "[o]nce a court has issued a valid original judgment and imposed sentence on a defendant, it cannot enlarge the sentence by increasing the penalty at a later date." 1980-NMCA-020, ¶ 9. While these authorities are interesting, New Mexico law does not define the contours of the Due Process Clause; it may be that there is overlap between what New Mexico requires and what the Constitution requires, but it may also be that New Mexico requires more than what the Constitution requires.
The Defendants' authority is more on point than Reid's in that the cases they cite discuss constitutional limitations, including whether a pre-or post-deprivation hearing is sufficient under the due process clause, but, while this authority is helpful, the Court notes that it also does not answer the precise question before the Court. In Skipworth v. United States, for example, the issue was whether a one-year ex parte extension of probation was valid. See 508 F.2d at 600. The defendant argued that rule 43 of the Federal Rules of Criminal Procedure "required his presence at the time the trial judge granted the extension," but the Third Circuit explained that neither placing a defendant on probation nor extending probation constitute an "imposition of sentence" as defined in rule 43, and thus, the fact that the court had extended his probation ex parte did not violate rule 43. 508 F.2d at 600. The Third Circuit then addressed the "much more troublesome question . . . whether the due process clause requires that a probationer be given notice and a right to a hearing before any order granting an extension of probation is entered." 508 F.2d at 600. After reviewing Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), in which the Supreme Court "had established a constitutional right to a hearing before revocation of parole," and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), in which the Supreme Court held that due process requires that a probationer be given notice and the right to a hearing before revocation of probation, the Third Circuit concluded that due process did not require notice and a hearing before extending probation. 508 F.2d at 601.
508 F.2d at 601-02. The Third Circuit reasoned that, unlike a revocation hearing at which a judge must find that the probationer violated a condition of probation or broke a law, a determination to extend probation does not require a judge to find any probation violation has occurred. See 508 F.2d at 602 (explaining that "the trial judge is given greater latitude" when granting probation extensions, and citing United States v. Squillante, 144 F.Supp. 494, 497 (S.D.N.Y.1956), in which the Southern District of New York refused to terminate the probation which it had previously extended, because it found that the best interest of society warranted the continuing supervision over the probationer). The Third Circuit stated that, beyond the judge's latitude in extending probation, "[a]dditional circumstances . . . similarly undercut any claim of prejudice," including that the probationer "was clearly on notice of the trial judge's power to extend the term of his probation, since the probation order he signed explicitly stated that the court had such power," that the "extension did not entail any new or more onerous restrictions, since the conditions of probation were not changed in any way," and that the probationer "was given prompt notification of the extension and of the reasons it had been granted, and thus he was clearly on notice that he was still subject to its conditions and restrictions." 508 F.2d at 602. Although the Third Circuit concluded that "the ex parte extension of [the probationer's] probation was not so prejudicial as to constitute a violation of due process," it stated that, "because of the potential for prejudice in such extensions,. . . they are inadvisable," and thus, indicated that it would "hereafter require the district courts in this Circuit before extending probation to provide notice to the probationer of the proposed extension and advise him that he has a right to a hearing should he so desire, together with the assistance of counsel." 508 F.2d at 602-03.
In United States v. Silver, the Ninth Circuit addressed the constitutionality of extending probation without a hearing. The Ninth Circuit first reviewed the applicable law, noting that the Sentencing Reform Act of 1984, Pub.L. No. 98-473, § 212(a)(2), 98 Stat. 1837, as amended by Sentencing Act of 1987, Pub.L. No. 100-182, § 2, 101 Stat. 1266, explicitly stated that a "`court may, after a hearing, extend a term of probation . . . at any time prior to the expiration or termination of the term of probation,'" 83 F.3d at 291 (quoting 18 U.S.C. § 3653), but that, before the Sentencing Reform Act went into effect, a "court could discharge the probationer from further supervision or extend the probation `as shall seem advisable,'" but that "[t]here was no provision for a hearing," 83 F.3d at 291 (quoting 18 U.S.C. § 3653 (repealed October 12, 1984)). The Ninth Circuit applied the pre-Sentencing Reform Act law, because the act was not effective at the time the defendant committed the offenses. See 83 F.3d at 291. The Ninth Circuit noted that "[t]he four Courts of Appeals that have decided the issue of
United States v. Silver, 83 F.3d at 292 (citations omitted). The Ninth Circuit concurred with the Third, Fifth, Sixth, and Eighth Circuits, and held "that due process does not require the district court to hold a hearing as to an extension of probation for offenses committed before the Sentencing Reform Act went into effect on November 1, 1987." 83 F.3d at 292.
Although the Tenth Circuit has not addressed the probation extension issue, it cited Skipworth v. United States favorably in United States v. Ortiz, 733 F.2d 1416, 1417-18 (10th Cir.1984). United States v. Ortiz involved an equal protection challenge, but the Tenth Circuit looked to Skipworth v. United States to explain that extending a probation period is a "milder loss" than "the grievous loss of liberty implicated in a revocation of probation." United States v. Ortiz, 733 F.2d at 1418. The Tenth Circuit concluded that extending an indigent's probation period after he failed to pay the fine imposed as a probation condition did not violate fundamental fairness. See 733 F.2d at 1418.
The Court recognizes that the Defendants cited only probation extension cases by way of analogy, but it has concerns about relying too heavily on those cases, primarily because Reid's probation was not simply extended; according to the FAC, he had completed his probation three months before Ross submitted the new Order of Probation to Judge Purcell to sign. The Tenth Circuit explained that, at least when it comes to the Fourth Amendment "right to be free from warrantless searches" of the home, a person who has "already been discharged" from probation enjoys the "absolute liberty to which every citizen is entitled," rather than the "conditional liberty properly dependent on observance of special probation restrictions." Trask v. Franco, 446 F.3d at 1043-44. Although Trask v. Franco involved a Fourth Amendment search claim rather than a procedural due-process claim, the Court thinks that it stands for the broader proposition that, after a person's probation period has ended, he or she has the same liberty to which every citizen is entitled. Thus, once Reid ended his probation period for CR-139 on March 13, 2007, he regained the absolute liberty to which every citizen is entitled under the Constitution, including his right to due process before being subjected to a term of probation. When Ross submitted the Order of Probation to Judge Purcell without providing notice and a hearing, he did not receive the appropriate amount of process, even though he had available—and apparently did not take—the post-deprivation remedies such as filing a motion for correction or modification of his sentence or appealing the Order of Probation.
United States v. Behrens, 375 U.S. 162, 167-68, 84 S.Ct. 295, 11 L.Ed.2d 224 (1963) (Harlan, J., concurring in the result). The Court concludes that Ross violated clearly established law when she submitted the Order of Probation to Judge Purcell to sign when Reid had completed his probation period for CR-139. Before imposing a new term of probation, Reid was entitled to notice and a hearing, which he did not receive. The Court will, however, dismiss without prejudice the procedural due-process claim against Ross for the additional term of probation, because, as the Court previously discussed, Heck v. Humphrey bars that portion of the due-process claim.
As a final note regarding the due-process claim against Ross, the Defendants assert that, although Ross may be liable as an individual under a procedural due-process claim, they stress that "Judge Purcell's signing of the subject order of probation scribed by Ross constituted an intervening cause of any harm suffered by plaintiff" and that the "theory of superseding cause applies in § 1983 cases." Defendants' Supp. at 8. Based on that theory, they contend that "Ross, as an individual, would not have violated Reid's procedural due process rights by scribing the probation order and submitting it to Judge Purcell for signature after his review." Defendant's Supp. at 8. The Defendants are correct that, to hold a defendant personally liable under § 1983, the defendant must have "caused the deprivation of a federal right." Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). They incorrectly label, however, Judge Purcell's conduct in signing the Order of Probation as a superseding intervening cause that cuts off Ross' liability. While Judge Purcell's conduct in signing the Order of Probation was an intervening cause, it was not superseding, because it was a foreseeable result after Ross submitted the Order of Probation to Judge Purcell. The situation is analogous to a police officer submitting a warrant affidavit to a magistrate judge when the affidavit lacks probable cause; in Malley v. Briggs, the Supreme Court rejected the argument that the magistrate judge's "decision to issue the warrant breaks the causal chain between the application for the warrant and the improvident arrest." 475 U.S. at 344 n. 7, 106 S.Ct. 1092.
Malley v. Briggs, 475 U.S. at 345 n. 7, 106 S.Ct. 1092. Similarly, the Court concludes that the natural consequences of Ross' conduct in submitting a new Order of Probation for Judge Purcell to sign was that Judge Purcell would sign it, and, thus, his conduct is not a superseding cause that cuts off Ross' liability. Although Reid did not challenge the Order of Probation by filing a motion to modify or correct his sentence, or by appealing it, the Court also does not think that Reid's conduct constitutes a superseding intervening cause to cut off Ross' liability, because she assured Reid that he had five years of probation yet to serve; a natural consequence of her assurances is that Reid would not press the issue further.
Reid asserted at the hearing that he was asserting the Fourth Amendment search claim against all of the Defendants, including Ross. In this count, Reid alleges that "[t]he Defendants, while acting under color of state law, forced the Plaintiff to submit to a urine test and searched his home, without a warrant, absent exigent circumstances, in violation of the Fourth Amendment to the United States Constitution." FAC ¶ 26, at 6. Based on Reid's conduct in submitting the Order of Probation to Judge Purcell for his signature, and then assuring Reid that he had an additional five years of probation to serve, the Court thinks that, although Ross did not personally participate in the alleged illegal searches, she caused them. "`The requisite causal connection is satisfied if the defendant set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of [his] constitutional rights.'" Snell v. Tunnell, 920 F.2d at 700 (quoting Conner v. Reinhard, 847 F.2d 384, 396-97 (7th Cir.1988)). The foreseeable and expected result of the Order of Probation was that other probation officers would supervise Reid pursuant to the Order of Probation's conditions, which included searches of his house and his person, including drug tests.
In the Order of Probation, Reid wrote his signature next to each probation condition, including the two provisions related to the alleged illegal searches:
Order of Probation at 1, 2. Although Reid signed the Order of Probation, the Court does not think that his signature absolves
The Court concludes that the situation of Ross submitting the erroneous Order of Probation to Judge Purcell is similar to a situation in which a police officer submits an application for a warrant to a magistrate judge when the application does not support a finding of probable cause. In Malley v. Briggs, the Supreme Court rejected the argument that, when an officer seeks an arrest warrant by submitting a complaint and supporting affidavit to a judge, a magistrate judge who issues the arrest warrant breaks the causal chain between the officer's conduct and the plaintiff's arrest. See 475 U.S. at 339, 106 S.Ct. 1092. The Supreme Court concluded that, when "a reasonably well-trained officer in petitioner's position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant," "the officer's application for a warrant was not objectively reasonable, because it created the unnecessary danger of an unlawful arrest." 475 U.S. at 345, 106 S.Ct. 1092.
475 U.S. at 345-46, 106 S.Ct. 1092. The Supreme Court cautioned that it was not requiring a police officer to assume a role more skilled than the magistrate judge:
Malley v. Briggs, 475 U.S. at 346 n. 9, 106 S.Ct. 1092 (citation omitted). The Supreme Court also noted that, "[a]lthough the case before us only concerns a damages action for an officer's part in obtaining an allegedly unconstitutional arrest warrant, the distinction between a search warrant and an arrest warrant would not make a difference in the degree of immunity accorded the officer who applied for the warrant." 475 U.S. at 344 n. 6, 106 S.Ct. 1092.
The Tenth Circuit dealt with a similar issue in Salmon v. Schwarz, 948 F.2d 1131 (10th Cir.1991), although the issue came before it during a motion for summary judgment. The Tenth Circuit agreed with
Likewise, Ross' conduct in submitting the Order of Probation to Judge Purcell, when "the file and documentation contained therein clearly showed that the Plaintiff's probation had ended on March 13, 2007 and that he could not be placed on any additional probation," FAC ¶ 10, at 3, violated Reid's Fourth Amendment right to be free from unreasonable searches, because there was no basis for the Order of Probation that would cause probation officers to subject Reid to many searches over a period of five years. The problem, however, is that the law was not clearly established that Ross' conduct would violate the Constitution, because the Tenth Circuit held in Kerns v. Bader that, although "a case on point isn't required if the impropriety of the defendant's conduct is clear from existing case law," the law is not clearly established where "a distinction might make a constitutional difference." 663 F.3d at 1188 (emphasis in original). There are several differences between Ross' conduct and a police officer's conduct in submitting an affidavit that lacks probable cause. A police officer must swear to certain facts that he or she believes establish probable cause, and a person subject to the warrant does not have any way to challenge the warrant application until after the warrant has been issued and executed. Here, Ross did not swear to any facts in the draft Order of Probation that she submitted to Judge Purcell, but merely determined, although apparently inaccurately, that Reid had not served his entire probation term. Further, Reid could challenge the Order of Probation before any alleged unconstitutional searches or seizures took place, through appealing the Order of Probation. There may also be a difference between a police officer who primarily will perform law enforcement functions, and a probation officer, who may sometimes perform law enforcement functions and at other times may perform judicial functions. These differences convince the Court that the law was not clearly established; thus, the Court will grant the MTD regarding the Fourth Amendment search claim against Ross.
Just as the Fourth Amendment search claim against Ross fails, because the law was not clearly established, so too the Fourth Amendment seizure claim must also fail. The differences between a police officer submitting a warrant application and Ross submitting the Order of Probation might make a constitutional difference and convince the Court that the law was not clearly established.
The Court makes two additional observations regarding the Fourth Amendment seizure claim. First, although Reid admitted to using marijuana in violation of the Order of Probation, his conduct does not cut off Ross' liability. Whether Reid's conduct was foreseeable is a matter for a jury to determine, and the Court cannot conclude, as a matter of law, that Ross could not foresee a probationer violating a probation condition. Because the issue comes before the Court on a motion to dismiss, the Court will not consider some
Although Reid alleged at the hearing that he is bringing a procedural due-process claim against all the Defendants, it is not clear what he is alleging Garcia, Pautler, and Hatley did to deny him procedural due process. They were not involved in obtaining the additional term of probation, and, although they enforced it, Reid has not pointed to any authority that they were required to independently investigate the Order of Probation before enforcing it. It seems that the part of the due process count against them is that they, "while acting under the color of state law, deprived the Plaintiff of his liberty interest without due process of law, in violation of the Fourteenth Amendment to the United States Constitution by requiring the Plaintiff to submit to . . . a period of seven (7) days of incarceration." FAC ¶ 21, at 5-6. To support this count, Reid alleges that, after he had a positive drug test and admitted to using marijuana,
FAC ¶¶ 15-17, at 4-5.
Essentially, Hatley, Garcia, and Pautler initiated probation revocation proceedings
Gagnon v. Scarpelli, 411 U.S. at 781-82, 93 S.Ct. 1756. The Supreme Court detailed what must happen at both of these hearings:
Morrissey v. Brewer, 408 U.S. at 484-90, 92 S.Ct. 2593 (citations omitted) (footnotes omitted). See Gagnon v. Scarpelli, 411 U.S. at 782, 93 S.Ct. 1756 (stating that a probationer is entitled to the same process as a parolee before probation is revoked).
Both Reid and the Defendants acknowledge that a seven-day delay before the September 14, 2011, hearing does not necessarily give rise to a due-process claim; as Reid states, "to establish a due-process violation for failure to timely provide a preliminary hearing, the Plaintiff must demonstrate that the delay was both unreasonable and prejudicial." Reid's Second Supp. at 5. Both parties cite to Paul v. McFadin, 117 F.3d 1428, 1997 WL 407843 (10th Cir.1997) (unpublished table decision), in which the Tenth Circuit noted that, in the context of revoking parole, "due process requires a preliminary revocation hearing `as promptly as convenient after arrest,' and a final revocation hearing `within a reasonable time after the parolee is taken into custody.'" 1997 WL 407843, at *2 (quoting Morrissey v. Brewer, 408 U.S. at 485, 488, 92 S.Ct. 2593). "However, delay in providing these hearings does not, per se, constitute a violation of due process entitling an accused parole violator to immediate release. Instead, `to establish a legal right to habeas relief, the delay, taking into consideration all the circumstances, must also be prejudicial.'" 1997 WL 407843, at *2 (citations omitted). In that case, a three-month delay between arrest and the preliminary hearing did not violate due process, because the plaintiff failed to demonstrate any prejudice. See 1997 WL 407843, at *3.
Reid states that "[i]t is clear that under no circumstances could the Plaintiff argue that a seven (7) day delay amounts to a due process violation unless he can also demonstrate prejudice." Reid's Second Supp. at 6. To support his argument that the delay prejudiced him, Reid asserts that,
The Defendants make several additional arguments why they did not violate due process. First, they assert that the September 14, 2011, hearing "could be considered the `preliminary hearing' or a combined preliminary/final hearing." Defendants' Second Supp. at 8. They point to a number of cases holding that a preliminary hearing may be combined with a final hearing and that the final hearing may itself satisfy due process without a preliminary hearing. See Defendants' Second Supp. at 8-10. Although the Defendants did not point to any Tenth Circuit cases on point, the Court agrees that the Supreme Court has not foreclosed the possibility for the preliminary hearing and final hearing to be combined. See Ellis v. District of Columbia, 84 F.3d 1413, 1424 (D.C.Cir.1996) ("Consolidating the preliminary and final revocation hearings into a single proceeding is constitutionally permissible." (citing Gagnon v. Scarpelli, 411 U.S. at 783 n. 5, 93 S.Ct. 1756; Pierre v. Wash. State Bd. of Prison Terms & Paroles, 699 F.2d 471, 473 (9th Cir.1983))). In this situation, whether the September 14, 2011, hearing is considered a combined hearing or even simply the final hearing, Reid cannot demonstrate any prejudice, as that term is defined in the case law, resulting from the seven-day delay.
The Defendants also argue that Reid was, "in effect, given an immediate `preliminary hearing' when Pautler and Hatley, after administering the urine test that came back positive and after having been told by plaintiff that he had consumed marijuana, contacted Garcia on the telephone, and discussed the situation with him." Defendants' Second Supp. at 10-11. The Defendants assert that Garcia "independently evaluated whether probable cause existed for the arrest pending a court hearing" and that Reid did not allege that he "did not have an opportunity to present his side of the story to Garcia." Defendants' Second Supp. at 11. The Court notes that, in some circumstances, Garcia could fulfill the role of independently evaluating probable cause, because the "independent officer need not be a judicial officer." Morrissey v. Brewer, 408 U.S. at 486, 92 S.Ct. 2593. While Garcia was not directly involved with discovering the alleged violation, the Court does not agree with the Defendants that Garcia could fulfill the requirement that "the determination that reasonable ground exists for revocation or parole should be made by someone not directly involved in the case." Morrissey v. Brewer, 408 U.S. at 485, 92 S.Ct. 2593. That Garcia had, up until that point, been supervising Reid indicates to the Court that Garcia was not a proper person to conduct a preliminary hearing. Because Reid has not demonstrated that the seven-day delay prejudiced him, however, the Court's conclusion that Garcia did not perform a satisfactory preliminary hearing when Hatley and Pautler called him does not impact the Court's holding.
An additional issue related to the procedural due-process claim is Reid's allegation that the Defendants violated rule 5-805(B)
NMRA 5-805(B). The Defendants contend that any failure on the part of the Defendants to file a notice pursuant to rule 5-805(B) did not harm Reid, because a district judge entered an order modifying his conditions of release within the required time period in rule 5-805(D). See MTD Memo. at 15. Because rule 5-805(D) requires the sentencing judge to review the notice of arrest or warrant and consider conditions of release pending adjudication of the probation violation within five days of the arrest, see 5-805(D) NMRA, and because Saturdays, Sundays, and legal holidays are excluded in computing days when the time prescribed is less than eleven, see 5-104(A) NMRA, Reid was released from custody within the five days that the rules contemplate. He was arrested on September 7, 2011, and the judge had until September 14, 2011, to review the notice; as the FAC alleges, Reid was released on September 14, 2011. See FAC ¶ 18, at 5; MTD Memo. at 15-16. Although the Defendants may not have strictly complied with New Mexico's rule, their failure to provide written notice did not impact that a judge reviewed Reid's case within the time that the New Mexico rules required. Further, a violation of New Mexico's rules does not independently demonstrate a constitutional due-process violation. Because Reid cannot demonstrate that the seven days between his arrest and the hearing prejudiced him, the Court will dismiss the procedural due-process claim against Garcia, Hatley, and Pautler related to Reid's seven days of incarceration.
Although the Court has concluded that Garcia, Hatley, and Pautler are absolutely immune for any searches they performed, because they were enforcing a facially valid court order, the Court also concludes that, even if absolute immunity does not apply, they are qualifiedly immune, because their reliance on the facially valid Order of Probation was objectively reasonable. Although Reid cited Pitchford v. Borough of Munhall at the hearing for the principle that negligence may be actionable under § 1983 for Fourth Amendment claims, See Tr. at 34:3-21 (Frost), the Court thinks the case demonstrates why Hatley, Pautler, and Garcia are not liable under a qualified immunity analysis for the alleged unconstitutional searches.
In Pitchford v. Borough of Munhall, a magistrate judge issued a warrant for the plaintiffs arrest based on a defendant citizen's private criminal complaint that the plaintiff had violated a Protection From Abuse ("PFA") order; contrary to the citizen's complaint, however, there was not any PFA order entered against the plaintiff. 631 F.Supp.2d at 647. Nonetheless, the magistrate judge issued the warrant for the plaintiffs arrest. See 631 F.Supp.2d at 648. The Honorable Terrence F. McVerry, United States District Judge for the Western District of Pennsylvania, noted that, for the three officers who arrested the plaintiff, "[s]ince the only basis for this arrest was an arrest warrant
Pitchford v. Borough of Munhall, 631 F.Supp.2d at 655 (citations omitted). Unlike the circumstances in Berg v. County of Allegany, Judge McVerry determined that the officers did not act unreasonably in relying on the warrant:
Pitchford v. Borough of Munhall, 631 F.Supp.2d at 655-56 (citations omitted).
Although the case is from the Western District of Pennsylvania, the Court concludes that it provides a helpful framework with which to analyze Reid's claims against Hatley and Pautler, the officers who required him to take a urine drug test. First, requiring Reid to submit to a urine drug test was a search under the Fourth Amendment. See Skinner v. Ry. Labor Execs. Ass'n, 489 U.S. at 617, 109 S.Ct. 1402 ("Because it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable, the Federal Courts of Appeals have concluded unanimously, and we agree, that these intrusions must be deemed searches under the Fourth Amendment."). Although Hatley and Pautler were enforcing a facially valid Order of Probation, the Order of Probation was not valid, because Reid had served his maximum probation term for CR-139. Further, taking the facts as Reid alleges them, Hatley and Pautler did not have any independent justification for the search, because, although Reid's initials appear on the Order of Probation, he did not consent to the searches, nor were there any exigent circumstances or independent probable cause for the search. He merely acknowledged by his initials that he had been told of the specific conditions; initialing is an attempt to keep violations to a minimum and not as an attempt to secure consent. The search may have violated the Fourth Amendment, but Hatley and Pautler acted on an objectively reasonable belief that the facially valid Order of Probation allowed them to require Reid to submit to urine drug tests. Put another way, Hatley and Pautler did not need to look past the facially valid Order of Probation to ensure that it was free from error.
The Court also looks, as it must, to Tenth Circuit precedent in reaching this conclusion. In Salmon v. Schwarz, 948 F.2d 1131 (10th Cir.1991), the Tenth Circuit granted qualified immunity to defendant FBI agent Martin Schwartz, who executed a facially valid arrest warrant, even though the Tenth Circuit denied qualified immunity to defendant Arturo Gonzalez, the agent who obtained the arrest warrant. See 948 F.2d at 1133, 1140-41. The Tenth Circuit noted that, for qualified immunity, "the inquiry is confined to the objectively ascertainable question whether a reasonably well-trained official would have known that the search was illegal despite the magistrate's authorization." 948 F.2d at 1136 (citing United States v. Leon, 468 U.S. 897, at 911 n. 23, 104 S.Ct. 3405). "In Anderson [v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987),] the
948 F.2d at 1140-41 (citations omitted). The Court concludes that, although the Order of Probation was erroneous, and although Hatley and Pautler did not have an independent basis for subjecting Reid to a urine drug test, an objectively reasonable officer could have believed that the Order of Probation was proper and that it provided the authority needed to conduct the search. Reid has not pointed to any cases that demonstrate that Hatley and Pautler had a duty to look beyond the Order of Probation to determine if it was valid, and, by way of analogy to arrest warrants, the weight of authority counsels that the officers may rely on a facially valid court order unless they have other information to indicate that it is invalid. See Hill v. Bogans, 735 F.2d 391, 393 (10th Cir.1984) ("Unless a warrant is facially invalid an officer has no constitutional duty to independently determine its validity."). Reid has not alleged any facts that would indicate that Garcia, Pautler, or Hatley had any reason to doubt the Order of Probation. To the extent absolute immunity does not apply to the searches that Garcia, Pautler, and Hatley performed, the Court will grant the MTD for the Fourth Amendment search claim against them based on their qualified immunity defense.
Regarding the Fourth Amendment seizure claims against Garcia, Pautler, and Hatley, the Court notes that Reid has alleged that Garcia, Pautler, and Hatley falsely stated on the Arrest Order that Reid was a risk to himself and guilty of repeated violations of supervised conditions. Although the Defendants argue that Reid's admission to using marijuana establishes that he was a risk to himself, the Court is not convinced.
In State v. Ponce, 2004-NMCA-137, 136 N.M. 614, 103 P.3d 54, the defendant was arrested for violating the probation condition that he could not consume alcohol. See 2004-NMCA-137, at ¶ 2. The probation order also "provided that a warrant
When Defendant reported to the PPD office on February 8, 2001, he was arrested because a urinalysis performed three days earlier, on February 5, 2001, and received by the probation office on February 7 or 8, 2001, was positive for alcohol. The arrest was pursuant to an "arrest order" prepared by Probation Officer Garnand on which Officer Garnand checked off boxes indicating that Defendant was arrested both because he was a risk to himself and a risk to the public.
2004-NMCA-137, ¶ 2. The probation officer conducted a patdown search of the defendant and found vehicle keys "which then ultimately led to a search of Defendant's vehicle where cocaine was found." 2004-NMCA-137, at ¶ 1. The defendant sought to suppress the evidence from his vehicle, because he asserted, in part, that he was "arrested in violation of New Mexico Probation and Parole Division (PPD) Administrative Regulation PPD-215 which sets out PPD policy and procedure regarding arrests of petitioners." 2004-NMCA-137, at ¶ 4. After the district court denied the motion to suppress, the defendant appealed, and argued that "the arrest and searches were unconstitutional because they violated standards in the probation division regulations." 2004-NMCA-137, at ¶ 5.
The Court of Appeals of New Mexico, in an opinion written by the Honorable Jonathan B. Sutin, Judge for the Court of Appeals of New Mexico, and in which the Honorable James J. Wechsler, Chief Judge, concurred, and from which the Honorable Michael E. Vigil dissented, discussed N.M. Stat. Ann. § 31-21-15(A)(3), which provides that authorized probation officers may arrest without a warrant probationers who violate probation conditions, see 2004-NMCA-137, ¶ 9, and PPD Regulation 215, which
2004-NMCA-137, at ¶ 11 (alterations in original).
When the probation officer filled out the arrest order, he checked both "risk to self and risk to public." 2004-NMCA-137, at ¶ 17. Although the defendant did not contest
2004-NMCA-137, at ¶ 18. The Court of Appeals of New Mexico noted that, "[e]ven in intensive supervision circumstances, the official policy in PPD Regulation 215 requiring a possible serious or repeated pattern of probation violations or a risk to public or individual safety must be proven by the State in order to justify an arrest." 2004-NMCA-137, at ¶ 18. The Court of Appeals of New Mexico concluded that "[t]he State failed to establish these required grounds for his arrest." 2004-NMCA-137, at ¶ 18. Because the state could not meet the requirements of PPD Regulation 215, the defendant argued that his arrest violated the Fourth Amendment and the New Mexico Constitution. See 2004-NMCA-137, at ¶ 19. The Court of Appeals of New Mexico disagreed:
2004-NMCA-137, at ¶ 20. Judge Vigil dissented from the majority on the issue whether the vehicle searches were reasonable, but did not disagree with the majority's analysis of the arrest. See 2004-NMCA-137, at ¶ 41 (Vigil, J., dissenting).
Just as the Court of Appeals of New Mexico concluded that the defendant's use of alcohol did not mean that the defendant was a risk to himself, the use of marijuana, although illegal, does not demonstrate that Reid was a "risk" to himself as the arrest order required. On the other hand, there is an independent basis on which Garcia, Pautler, and Hatley could rely to justify arresting Reid, without relying on a finding that Reid was a "risk to self" or that he repeatedly violated his probation conditions. The first condition of the Order of Probation states: "I will not violate any of the laws or ordinances of the State of NM, or any other jurisdiction." Order of Probation at 1. Another condition states: "I will not buy, sell, consume, possess or distribute any controlled substances except those legally prescribed for my use by a State Certified Medical Doctor." Order of Probation at 2. After listing all of the conditions, the Order of Probation states:
Order of Probation at 2. Thus, under the Order of Probation, Garcia, Pautler, and
The complicating fact here is that the Order of Probation, which gave the probation officers authority to arrest Reid for violating probation conditions, was erroneous, meaning that Garcia, Hatley, and Pautler did not have authority to arrest Reid. The question on qualified immunity is whether a reasonable probation officer would have known that his actions would violate the Constitution. Here, Garcia, Pautler, and Hatley reasonably relied on the Order of Probation to conclude that they had authority to arrest Reid for violating his probation conditions. The Court concludes that, similar to the Fourth Amendment search claims against Garcia, Hatley, and Pautler, the Fourth Amendment seizure claims fail, because the officers could rely on the Order of Probation to arrest Reid for violating his probation conditions, which stated that he would not violate New Mexico law and he would not consume controlled substances.
Reid included very little information in the FAC regarding Muller; he alleges only that, (i) "[b]eginning at some point prior to September of 2011, the Plaintiff was being directly supervised by Defendant Gregory Garcia, who in turn was subject to the supervision of the Defendant Kristy Muller," FAC ¶ 14, at 4; and (ii) that, on the Arrest Order, "Defendant Hatley signed the order on behalf of Defendant Muller," FAC ¶ 15, at 4. As the FAC alludes, the Arrest Order includes a typed line indicating where Muller would sign it, but the signature is not hers. See Arrest Order at 1. Because Reid has not alleged that Muller was personally involved in any of the conduct, the Court understands Reid to be asserting supervisory liability against Muller.
"Supervisory liability `allows a plaintiff to impose liability upon a defendant-supervisor who creates, promulgates, [or] implements . . . a policy . . . which subjects, or causes to be subjected that plaintiff to the deprivation of any rights. . . secured by the Constitution.'" Brown v. Montoya, 662 F.3d at 1163-64 (alterations in original) (quoting Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010)). To establish supervisory liability, "a plaintiff must show that `(1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation.'" Brown v. Montoya, 662 F.3d at 1164 (quoting Dodds v. Richardson, 614 F.3d at 1199). Reid has not alleged that any of the Defendants acted pursuant to a policy, or that Muller promulgated, created, implemented, or possessed responsibility for a policy that caused the alleged constitutional harms. To the extent Reid's claim against Muller is for supervisory liability,
Reid has also not alleged facts sufficient to implicate Muller for personal liability, because none of the facts show that she was personally involved in the alleged constitutional violations. The closest allegation of personal involvement is that her typed name was on the Arrest Warrant, but Reid did not allege that she gave Hatley permission to sign for her; rather, Reid alleged that "Defendant Hatley signed the order on behalf of Defendant Muller." FAC ¶ 15, at 4. This scintilla of an allegation is insufficient to implicate Muller in the alleged constitutional violations. See Robbins v. Oklahoma, 519 F.3d at 1249-50 (stating that "it is particularly important" in § 1983 cases, when defendants sue "a number of government actors," that "the complaint make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him or her").
In the Motion to Amend, Reid moves to amend the FAC to include a Fifth Amendment violation—that Ross deprived him of his right to be free from double jeopardy—and a Sixth Amendment violation—that Ross deprived him of his right to be represented by counsel when she obtained Judge Purcell's signature on the Order of Probation without providing him with an attorney. See Second Amended Complaint for Violation of Civil Rights ¶¶ 37, 42, at 8-9, attached as Exhibit 1 to the Motion to Amend, filed May 30, 2014 (Doc. 48-1).
Regarding the Sixth Amendment claim, Reid explains:
Motion to Amend at 2. Regarding the Fifth Amendment double jeopardy claim, Reid asserts:
Motion to Amend at 2-3.
In response, the Defendants reiterate arguments from the MTD that they are entitled to absolute and qualified immunity, and, thus, that an amended complaint would be futile. See Defendants' Response to Plaintiff's Opposed Motion to Amend Complaint and Memorandum Brief in Support Thereof at 3, filed June 13, 2014 (Doc. 52) ("Response to Motion to Amend"). Further, the Defendants argue that Heck v. Humphrey also bars the two proposed additional claims. See Response to Motion to Amend at 7.
The Court agrees with the Defendants that allowing Reid to amend the FAC to include a Fifth Amendment double jeopardy claim and a Sixth Amendment right to counsel claim would be futile, because Heck v. Humphrey bars both claims. The Court must consider "whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." Heck v. Humphrey, 512 U.S. at 486-87, 114 S.Ct. 2364.
Reid challenges the constitutionality of the Order of Probation, including the fact that he did not have an attorney; succeeding on the Sixth Amendment claim would "necessarily imply the invalidity of his conviction or sentence," Heck v. Humphrey, 512 U.S. at 487, 114 S.Ct. 2364, that is, his sentence of probation. If the Court were to find merit to his claim that the Constitution required that he have an attorney present when Judge Purcell signed the Order of Probation or when Ross presented it to Reid, that finding would necessarily imply that the Order of Probation was invalid. Because the Court has elsewhere concluded that Reid has not shown that his Order of Probation was overturned or otherwise invalidated, and that Reid was not diligent in seeking to overturn or invalidate the Order of Probation, Heck v. Humphrey bars his claim.
Similarly, Reid challenges that the Order of Probation amounts to a harsher sentence and violates the constitutional guarantee against double jeopardy. Success on this claim would necessarily imply the invalidity of the Order of Probation. See Roberts v. O'Bannon, 199 Fed.Appx. 711, 714 (10th Cir.2006) (unpublished) (dismissing the plaintiff's § 1983 claim that his indictment violated the double jeopardy clause under Heck v. Humphrey, because judgment in favor of the plaintiff would necessarily imply the invalidity of his convictions and the plaintiff failed to show he had been exonerated on the charges). Because the Court concludes that Heck v. Humphrey would bar both of Reid's proposed additional claims, amendment would be futile. The Court will deny the Motion to Amend.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir.2005). The Court finds that Gossett v. Barnhart, Carter v. Daniels, 91 Fed.Appx. 83 (10th Cir.2004)(unpublished), Douglas v. Norton, 167 Fed.Appx. 698 (10th Cir.2006)(unpublished), Carbajal v. Hotsenpiller, 524 Fed.Appx. 425 (10th Cir.2013)(unpublished), Lobozzo v. Colo. Dep't of Corr., 429 Fed.Appx. 707, 710 (10th Cir.2011)(unpublished), United States v. Reed, 195 Fed.Appx. 815, 821 (10th Cir.2006)(unpublished), United States v. Ceballos, 355 Fed.Appx. 226 (10th Cir.2009)(unpublished), United States v. Gary, 24 Fed. Appx. 862, 864-65 (10th Cir.2001)(unpublished), United States v. Gary, 24 Fed.Appx. 862, 864-65 (10th Cir.2001)(unpublished), United States v. Burciaga-Burciaga, 147 Fed.Appx. 725 (10th Cir.2005)(unpublished), Jackson v. Loftis, 189 Fed.Appx. 775, 779 (10th Cir.2006)(unpublished), Garey v. Marshall, 361 Fed.Appx. 915 (10th Cir.2010)(unpublished), Roberts v. O'Bannon, 199 Fed.Appx. 711, 714 (10th Cir.2006) (unpublished), all have persuasive value with respect to a material issue, and will assist the Court in its disposition of this Memorandum Opinion.
663 F.3d at 1183-84. The Tenth Circuit did not analyze whether the officer violated the plaintiff's constitutional rights and stated that guidance on the particular constitutional issue would be more appropriate in a case not involving qualified immunity: "Neither do we doubt that the scope of the Constitution's protection for a patient's hospital records can be adequately decided in future cases where the qualified immunity overlay isn't in play (e.g., through motions to suppress wrongly seized records or claims for injunctive or declaratory relief)." 663 F.3d at 1187 n.5. On remand, the Court stated:
407 U.S. at 238-39, 92 S.Ct. 2151. Congress did not say it would remedy only violations of "clearly established" law, but that
42 U.S.C. § 1983 (emphasis added). The Supreme Court established the qualified immunity defense in Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), and held that officials were not liable for constitutional violations where they reasonably believed that their conduct was constitutional. See E. Clarke, Safford Unified Sch. Dist. No. 1 v. Redding: Why Qualified Immunity is a Poor Fit in Fourth Amendment School Search Cases, 24 B.Y.U. J. Pub.L. 313, 329 (2010). The Supreme Court first introduced the "clearly established" prong in reference to an officer's good faith and held that a compensatory award would only be appropriate if an officer "acted with such an impermissible motivation or with such disregard of the [individual's] clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith." Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). In Harlow v. Fitzgerald, when the Supreme Court moved to an objective test, the clearly-established prong became a part of the qualified immunity test. See 457 U.S. at 818, 102 S.Ct. 2727 ("We therefore hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights."). It seems ironic that the federal courts would restrict a congressionally mandated remedy for constitutional violations—presumably the rights of innocent people—and discourage case law development on the civil side—and restrict case law development to motions to suppress, which reward only the guilty and is a judicially created, rather than legislatively created, remedy. Commentators have noted that, "[o]ver the past three decades, the Supreme Court has drastically limited the availability of remedies for constitutional violations in" exclusionary rule litigation in a criminal case, habeas corpus challenges, and civil litigation under § 1983. J. Marceau, The Fourth Amendment at a Three-Way Stop, 62 Ala. L.Rev. 687, 687 (2011). Some commentators have also encouraged the courts to drop the suppression remedy and the legislature to provide more-not less-civil remedies for constitutional violations. See Christopher Slobogin, Why Liberals Should Chuck the Exclusionary Rule, 1999 U. Ill. L.Rev. 363, 390-91 (1999) ("Behavioral theory suggests that the exclusionary rule is not very effective in scaring police into behaving. . . . These theories also suggest that a judicially administered damages regime. . . would fare significantly better at changing behavior at an officer level."); Hon. Malcolm R. Wilkey, Constitutional Alternatives to the Exclusionary Rule, 23 S. Tex. L.J. 531, 539 (1982) (criticizing the exclusionary rule and recommending alternatives). In Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006), the Supreme Court noted that civil remedies were a viable alternative to a motion to suppress when it held that the exclusionary rule was inapplicable to cases in which police officers violate the Fourth Amendment when they fail to knock and announce their presence before entering. See 547 U.S. at 596-97, 126 S.Ct. 2159. Rather than being a poor or discouraged means of developing constitutional law, § 1983 seems the better and preferable alternative to a motion to suppress. It is interesting that the current Supreme Court and Tenth Circuit appear more willing to suppress evidence and let criminal defendants go free, than have police pay damages for violations of innocent citizens' civil rights. It is odd that the Supreme Court has not adopted a clearly established prong for suppression claims; it seems strange to punish society for police violating unclear law in criminal cases, but protect municipalities from damages in § 1983 cases.
Kerns v. Bd. of Comm'rs, 888 F.Supp.2d 1176, 1224 n.36 (D.N.M.2012) (Browning, J.), abrogated on other grounds as recognized in Ysasi v. Brown, 3 F.Supp.3d 1088, 1130 n.24, No. CIV 13-0183 JB/CG, 2014 WL 936835, at *29 n.24 (D.N.M. Feb. 28, 2014) (Browning, J.).
On the flip side, treating large cases like they are large cases can create an appearance problem to the public and to the litigants—that only big cases deserve the Court's attention. A trial judge can overwork a "large" case. It is better to treat even "large" cases like every other case; large cases and their litigants need to know and appreciate that they are not the only case on the court's docket, and realize that the scarcity of judicial resources applies to them too.
888 F.Supp.2d at 1222 n. 35.
Katz v. United States, 389 U.S. at 351-52, 88 S.Ct. 507. The Supreme Court appears to have changed course in its two most recent opinions on Fourth Amendment searches. In Florida v. Jardines, the particular place at which the search occurred weighs heavily on the Supreme Court's holding, reasoning that "[t]he [Fourth] Amendment establishes [as] a simple baseline . . . . protections `when the Government does engage in a physical intrusion of a constitutionally protected area.'" 133 S.Ct. at 1414 (original alterations and original emphasis omitted) (emphasis added) (quoting United States v. Knotts, 460 U.S. 276, 286, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) (Brennan, J., concurring)). See United States v. Jones, 132 S.Ct. at 951 ("Katz did not erode the principle `that, when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.' . . . Katz did not narrow the Fourth Amendment's scope." (emphasis added)). The Court thus concludes that, while it may be true that the analysis does not turn on the place searched, the Court's prior statement — "the Supreme Court has vigorously asserted that the proper analysis under the Fourth Amendment is not whether the place searched is a `constitutionally protected area," Kerns v. Bd. of Comm'rs of Bernalillo Cnty., 888 F.Supp.2d at 1219-may no longer accurately reflect the Supreme Court's recent reversion to property-based analysis as a Fourth Amendment analysis baseline.
