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Trujillo v. Rio Arriba County ex rel. Arriba

United States District Court, D. New Mexico

December 19, 2016

JOHN TRUJILLO, Plaintiff,
v.
RIO ARRIBA COUNTY ex rel. RIO ARRIBA COUNTY SHERIFF'S DEPARTMENT; DEPUTY GILBERT ATENCIO, in his individual capacity; and LIEUTENANT MARVIN ARMIJO, in his individual capacity, Defendants.

          Joseph P. Kennedy, Theresa V. Hacsi Kennedy, Kennedy & Ives, LLC Albuquerque, New Mexico Attorneys for the Plaintiff

          James P. Sullivan Sabrina Salvato Brennan & Sullivan, P.A. Santa Fe, New Mexico Attorneys for the Defendants

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Defendants' Motion for Qualified Immunity and Summary Judgment, filed June 7, 2016 (Doc. 34)(“MSJ”). The Court held a hearing on September 21, 2016. The primary issues are: (i) whether Defendants Rio Arriba County, Rio Arriba County Sheriff's Department, and Deputy Gilbert Atencio are entitled to summary judgment on Plaintiff John Trujillo's federal claim for discrimination in violation of Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12165 (“ADA”)(Count IV), and his state law claims for false imprisonment (Count I), false arrest (Count II), and malicious abuse of process (Count III); and (ii) whether Atencio is entitled to qualified immunity with respect to the ADA claim. The Court will grant in part and deny in part the MSJ. The Court concludes that the Defendants are entitled to summary judgment on the ADA claim, because Trujillo was arrested pursuant to probable cause that he was driving while intoxicated and because Trujillo was not refused a reasonable accommodation as the ADA requires. The Court declines, however, to exercise supplemental jurisdiction over the remaining state law claims and remands the case for further state court proceedings. The final issue -- whether Atencio is entitled to qualified immunity -- is moot, because the Defendants have withdrawn their qualified immunity motion in light of the fact that Trujillo's ADA claim is not asserted against Atencio.

         FACTUAL BACKGROUND

         The Court will provide two factual background sections, which are set forth below. First, the Court will contextualize the MSJ by providing a brief overview of the facts based on the allegations in the Complaint to Recover Damages Pursuant to the New Mexico Tort Claims Act and for the Deprivation of Rights Guaranteed by the New Mexico Constitution, filed October 7, 2015 (Doc. 1-1)(“Complaint”). Second, the Court will set forth the undisputed facts based on the parties' briefings for purposes of deciding the MSJ under rule 56(a) of the Federal Rules of Civil Procedure.

         1. The Complaint's Factual Allegations.

         This action arises out of the alleged wrongful arrest of Trujillo on August 22, 2013, for driving under the influence (“DUI”). See Complaint ¶¶ 20-80, at 3-7. Trujillo is an honorably discharged United States Army veteran who suffers from degenerative joint disease in his knees and nephropathy, an end stage renal disease associated with diabetes mellitus.[1] See Complaint ¶¶ 8-9, at 2. At 7:00 p.m. on August 22, 2013, Trujillo stopped at a Rio Arriba County Sheriff's Department DUI checkpoint on Highway 68 in Velarde, New Mexico. See Complaint ¶¶ 21-22, at 3. Trujillo admitted to consuming two beers with dinner, and Armijo instructed Trujillo to pull to the side of the road. See Complaint ¶¶ 24-27, at 3. Atencio approached the car and instructed Trujillo to perform sobriety tests. See Complaint ¶¶ 28-38, at 3-4. Because of his disabilities, Trujillo asked to “retrieve his walking cane from the trunk of his car.” Complaint ¶ 38, at 4. Trujillo attempted to explain his disabilities and offered to present his Handicap Placard as proof, but Atencio denied Trujillo's request. See Complaint ¶¶ 43-44, at 4. Trujillo struggled to perform various walking and standing tests, and informed Atencio of his knee problems and other ailments. See Complaint ¶¶ 64-73, at 6. Atencio then administered a preliminary breath test and informed Trujillo that his breath alcohol level was 0.12. See Complaint ¶¶ 48-51, at 4-5. At 7:16 p.m., Atencio arrested Trujillo for DUI. See Complaint ¶¶ 36-78, at 4-6. Atencio then took Trujillo to Presbyterian Española Hospital in Española, New Mexico, for blood testing. See Complaint ¶ 82, at 7. Atencio kept Trujillo in handcuffs until Trujillo's daughter paid his bail around midnight. See Complaint ¶ 91, at 7. The results of the blood test later indicated that Trujillo had no alcohol in his system. See Complaint ¶ 99, at 8.

         2. Undisputed Facts.

         On August 22, 2013, Rio Arriba County Sheriff's Department was conducting a DUI checkpoint “on Highway 68 near mile marker 14.50 in Velarde, New Mexico.” MSJ ¶ 4, at 4 (setting forth this fact). See Plaintiff's Response to Defendants' Motion for Qualified Immunity and Summary Judgment ¶ 3, at 9, filed August 1, 2016 (Doc. 55)(“MSJ Response”)(not disputing this fact). Trujillo encountered the DUI checkpoint at approximately 7:00 p.m. See MSJ ¶ 5, at 4 (setting forth this fact); MSJ Response ¶ 4, at 9 (not disputing this fact). Upon meeting Armijo, Trujillo “admitted to drinking two beers within the past few hours.” MSJ ¶ 6, at 4 (setting forth this fact). See MSJ Response ¶ 5, at 9 (not disputing this fact). Trujillo was instructed to move to a “separate staging area where he was directed to complete a series of DUI field sobriety tests.” MSJ ¶ 7, at 5 (setting forth this fact). See MSJ Response ¶ 6, at 9 (not disputing this fact). Once in the area, Atencio gave Trujillo a preliminary breathalyzer test (“PBT”). See MSJ ¶ 8, at 5 (setting forth this fact)(citing Complaint ¶ 51, at 5).[2] Trujillo was also administered a horizontal gaze nystagmus test (“HGN”), [3] which he failed. See MSJ ¶ 9, at 5 (setting forth this fact)(citing Deposition of Murray Conrad at 40:19-23 (taken May 2, 2016), filed June 7, 2016 (Doc. 34-2)(“Conrad Depo.”)(Conrad, Sullivan)).[4] The HGN test correlates with indicia of intoxication. See MSJ ¶ 10, at 5 (setting forth this fact)(citing Conrad Depo. At 45:19-23)(Conrad)).[5]

         Trujillo was administered a finger dexterity test, which he performed with both hands. See MSJ ¶ 12, at 5 (setting forth this fact); MSJ Response ¶ 11, at 11 (not disputing this fact). Trujillo is missing his right thumb. See MSJ ¶ 11, at 5 (setting forth this fact); MSJ Response ¶ 10, at 11 (not disputing this fact). Trujillo failed the finger dexterity test with his right hand. See MSJ ¶ 13, at 5 (setting forth this fact).[6]

         During this encounter, Atencio[7] “observed an odor of alcohol and that [Trujillo] had bloodshot eyes.” MSJ ¶ 14, at 5 (setting forth this fact).[8] Atencio also observed that Trujillo had slurred speech and that he had a breath mint in his mouth. See MSJ Reply at 6.[9]

         Trujillo “was arrested at approximately 7:16 pm.” MSJ ¶ 15, at 5 (setting forth this fact). See MSJ Response ¶ 14, at 12 (not disputing this fact). Trujillo's arrest was for “driving ‘while impaired to the slightest degree.'” MSJ ¶ 16, at 5 (setting forth this fact).[10] “As a courtesy to [Trujillo] and for his comfort, he was handcuffed with his hands in the front of his body.” MSJ ¶ 17, at 5 (setting forth this fact). See MSJ Response ¶ 16, at 12 (not disputing this fact). Trujillo “‘appreciate[d the] consideration' Officer Atencio showed him by placing the handcuffs in the front of his body.” MSJ ¶ 18, at 5 (setting forth this fact)(alteration in original). See MSJ Response ¶ 17, at 12 (not disputing this fact). Trujillo was then taken to Española Hospital for a blood alcohol test. See MSJ ¶ 19, at 5 (setting forth this fact); MSJ Response ¶ 18, at 12 (not disputing this fact).

         Trujillo was not incarcerated, but was “held at the Sheriff's office temporary detention area until he was released on bond around midnight.” MSJ ¶ 20, at 5-6 (setting forth this fact). See MSJ Response ¶ 19, at 12 (not disputing this fact). Trujillo never asked Atencio to remove or loosen his handcuffs. See MSJ ¶ 21, at 6 (setting forth this fact); MSJ Response ¶ 20, at 12 (not disputing this fact). Nor did Trujillo ask “any other Rio Arriba County official to remove or loosen his handcuffs.” MSJ ¶ 22, at 6 (setting forth this fact). See MSJ Response ¶ 21, at 12 (not disputing this fact). When he was released, Trujillo was “provided a State of New Mexico Taxation and Revenue Department Motor Vehicle Division, Notice of [Driver's License] Revocation pursuant to NMSA 1978, §66-8-11.” MSJ ¶ 23, at 6 (setting forth this fact)(alteration in original). See MSJ Response ¶ 22, at 12 (not disputing this fact).

         Trujillo's driver's license revocation hearing was held on November 5, 2013, “or within the statutory ninety-day period.” MSJ ¶ 24, at 6 (setting forth this fact). See MSJ Response ¶ 23, at 12 (not disputing this fact). “At the time of the hearing, the results of the state blood alcohol test were unavailable” and, accordingly, “the hearing officer was unable to ‘find one way or the other, under the Implied Consent Act, whether there was a violation.'” MSJ ¶ 25, at 6 (setting forth this fact)(quoting Recording of Plaintiff's License Revocation Hearing at 4:44 (held November 5, 2013), filed June 7, 2016 (Doc. 34-7)(“License Hearing”); NMSA §§ 66-8-105 to -112).[11] The revocation of Trujillo's driver's license was rescinded. See MSJ Response ¶ 24, at 12 (setting forth this fact); MSJ Reply at 8 (not disputing this fact).[12]

         “The results of the state toxicology test were not mailed to Defendants until November 25, 2013.” MSJ ¶ 26, at 6 (setting forth this fact). See MSJ Response ¶ 25, at 12 (not disputing this fact). Trujillo's blood test “showed he had diazepam and [] its metabolite, noridazepam in his system.” MSJ ¶ 27, at 6 (setting forth this fact).[13] Diazepam has various effects, and a single dose “can reduce a driver's reaction times, ability to perform multiple tasks, adversely affects memory and cognition, increases fatigue, and decreases the ability of the driver to remain in his lane.” MSJ ¶ 1, at 4 (setting forth this fact)(citing Commander Murray A. Conrad Statement of Qualifications at 1, filed September 15, 2016 (Doc. 62-1)(“Conrad Qual.”)(citing United States Department of Transportation, National Highway Traffic Safety Administration, Drug and Human Performance Fact Sheets at 31 (revised April 2014)(“NHTSA Fact Sheets”)).[14] When combined with low concentrations of alcohol, diazepam “increases impairment.” MSJ ¶ 2, at 4 (setting forth this fact)(citing Conrad Qual. at 1 (citing NHTSA Fact Sheets at 31)).[15] Moreover, “[d]iazepam will cause the same effects as alcohol in the body and ‘can make the effects of alcohol seem worse than they are.'” MSJ ¶ 3, at 4 (setting forth this fact)(quoting Conrad Depo. 52:12-18 (Conrad)).[16]

         Trujillo “is disabled due to degenerative joint disease, kidney disease, diabetes, and nephropathy.” MSJ ¶ 28, at 6 (setting forth this fact). See MSJ Response ¶ 27, at 13 (not disputing this fact). “The First Judicial District Attorney's office prosecuted the case until [Trujillo's] criminal case was dismissed on January 14, 2014.” MSJ ¶ 29, at 7 (setting forth this fact).[17]

         PROCEDURAL BACKGROUND

         Trujillo commenced this action in the First Judicial District Court, Rio Arriba County, State of New Mexico on August 20, 2015. See Complaint at 1. Trujillo's Complaint alleges four counts, three of which are asserted against Atencio for violations of state law: Count I asserts a state law claim for false imprisonment, see Complaint ¶¶ 108-113, at 9; Count II asserts a state law claim for false arrest, see Complaint ¶¶ 114-118, at 10; and Count III asserts a state law claim for malicious abuse of process, see Complaint ¶¶ 119-124, at 10. Count IV, Trujillo's only federal claim, asserts that Rio Arriba County discriminated against Trujillo “[o]n the basis of his disability” in violation of Title II of the ADA. Complaint ¶¶ 125-37, at 10-12. On October 7, 2015, the Defendants removed the case to federal district court on the basis of federal question jurisdiction. See Notice of Removal ¶¶ 8-9, at 2, filed October 7, 2015 (Doc. 1).

         The Defendants moved for summary judgment on the Complaint on June 7, 2016.[18] The Defendants advance two primary arguments: (i) that Trujillo was arrested pursuant to probable cause that he was driving while intoxicated; and (ii) that Atencio did not deny Trujillo a reasonable accommodation for his disability during Trujillo's arrest or subsequent transportation and booking. The Court will review the Defendants' arguments, the responsive pleadings, and, finally, the hearing.

         1. The MSJ.

         The Defendants move for summary judgment on Trujillo's Complaint. See MSJ at 1. The Defendants' primary argument is that all of Trujillo's “claims fail because the undisputed facts show that Defendant Atencio had probable cause to arrest” Trujillo for driving under the influence of alcohol, MSJ at 3, and that this probable cause determination was based on neutral factors unrelated to Trujillo's alleged disabilities, see MSJ at 7. The Defendants also assert that Trujillo's ADA claim fails for the additional reason that Trujillo “never asked for an accommodation for his handcuffs.” MSJ at 3-4. Finally, Armijo[19] and Atencio assert that they are entitled to qualified immunity with respect to Trujillo's ADA claim. See MSJ at 4. The Court will discuss the Defendants' recitation of the legal standards applicable to the MSJ and then turn to the Defendants' substantive arguments.

         a. Applicable Legal Standards.

         After reviewing the undisputed facts, the Defendants discuss several legal standards. First, the Defendants contend that it is unlawful for a person who is “under even the ‘slight' influence of alcohol” to operate a motor vehicle in New Mexico. MSJ at 7 (quoting Vondrak v. City of Las Cruces, 535 F.3d 1198, 1207 (10th Cir. 2008)(citing State v. Sisneros, 1938-NSMC-049, ¶ 18, 82 P.2d 274). The Defendants contend that, in New Mexico, an arresting officer is not required to “‘observe a suspect actually driving in an impaired manner if the officer, based upon all the facts and circumstances, has reasonable grounds to believe that the suspect has been driving while intoxicated.'” MSJ at 8 (quoting State v. Sanchez, 2001-NMCA-109, ¶ 6, 36 P.3d 446, cert. denied, 131 N.M. 382, 37 P.3d 99 (2001)). Second, the Defendants assert that a “brief seizure at a sobriety checkpoint is reasonable if conducted in a neutral manner.” MSJ at 8 (citing Vondrak v. City of Las Cruces, 535 F.3d at 1206 (citing United States v. Galindo-Gonzalez, 142 F.3d 1217, 1221 (10th Cir. 1998)). The Defendants argue that probable cause is required to arrest a driver for DUI, and that an officer's probable cause determination “will be upheld if a reasonable officer in the same or similar circumstances would have had grounds to believe that the suspect had been driving while intoxicated.” MSJ at 8 (citing State v. Sanchez, 2001-NMCA-109, ¶¶ 6-7, 36 P.3d 446). Third, and finally, the Defendants note that the Supreme Court “has declined to rule as to whether the ADA applies to arrests and whether public entities can be held liable for damages under Title II of the ADA for an arrest made by its police officers.” MSJ at 8-9 (citing City & Cnty. of San Francisco v. Sheehan, 135 S.Ct. 1765, 1773-74 (2015)). The Defendants argue, however, that lower federal courts have recognized two theories forming the basis of Title II claims: (i) wrongful arrest based on “misapprehension of the effects of [an individual's] disability as criminal conduct;” and (ii) failure to provide reasonable accommodations to a disabled individual either during the investigation or arrest. MSJ at 9 (citing Gohier v. Enright, 186 F.3d 1216, 1220-1221 (10th Cir. 1999)(citation omitted in MSJ)). The Defendants conclude that “[a]n arrest based on probable cause and a failure to ask for accommodations for disability may invalidate ADA arrest claims.” MSJ at 9 (citing J.H. v. Bernalillo Cnty., 806 F.3d 1255, 1261 (10th Cir. 2015)).

         b. Qualified immunity.

         Turning to their substantive argument, the Defendants contend that Atencio and Armijo are entitled to qualified immunity on Trujillo's ADA claim. See MSJ at 9 (noting that “[q]ualified immunity has been recognized as a defense for ADA and Rehabilitation Act claims”)(citing Roberts v. City of Omaha, 723 F.3d 966 (8th Cir. 2013)(citation omitted in MSJ); Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995)). To defeat qualified immunity, the Defendants argue, Trujillo “must demonstrate his statutory rights under the ADA were violated and the right was clearly established on August 22, 2013.” MSJ at 10. With respect to the first inquiry, the Defendants assert that Trujillo's rights under the ADA were not violated, because: (i) he was arrested based on probable cause; (ii) his disability was accommodated during the field sobriety tests; and (iii) he did not request further accommodation during his arrest and detention. See MSJ at 9-13.[20]

         The Defendants assert that, first, Trujillo's ADA rights were not violated during his arrest or detention. See MSJ at 10. The Defendants contend that “Atencio did not misperceive Plaintiff's disability as intoxication” but, rather, he “perceived neutral indicia of driving under the influence.” MSJ at 10-11. In essence, they assert, Trujillo “was arrested based on the probable cause that he was intoxicated.” MSJ at 11. The Defendants point to State v. Sanchez, 2001-NMCA-109, ¶¶ 9-10, 36 P.3d 446, arguing that the Court of Appeals of New Mexico upheld a probable-cause determination based on “virtually identical” facts. MSJ at 11. In both cases, they contend, the driver admitted to having two beers, had bloodshot eyes, and smelled of alcohol. See MSJ at 11. They postulate, however, that Atencio had “more facts to support probable cause than were required in Sanchez, ” including “the results of the portable breathalyzer, the finger dexterity test, and . . . the results of the failed eye gaze test . . . .” MSJ at 12. They argue that Atencio's suspicions based on these indicia were “born [sic] out by the blood test results, ” which showed that Trujillo had “impairment drugs (diazepam) in his system.” MSJ at 12.

         The Defendants turn second to Trujillo's contention that Atencio violated the ADA by failing to provide accommodations for Trujillo's disability during the field sobriety tests, namely, that “the walk and turn test and the finger test were not appropriate.” See MSJ at 12 (citing Complaint ¶¶ 64-73, at 6). The Defendants assert that “the walk and turn test was not necessary for probable cause, ” because Atencio “had more than enough facts from Plaintiff's admitted drinking, appearance, failed preliminary breath test, and other failed tests to support a finding of probable cause.” MSJ at 12. With respect to the finger test, the Defendants argue that Trujillo “performed the test with both hands not only the alleged deformed hand, ” and, thus, “the implication that Plaintiff's missing right thumb was an impediment to successfully performing the dexterity test is a red herring . . . .” MSJ at 12 (citing MSJ ¶ 12, at 5)(emphasis in original). In any case, the Defendants assert, no mobility was required for Trujillo to reveal his recent alcohol consumption, take a breathalyzer test, smell like alcohol, have bloodshot eyes, lack finger dexterity, and fail the HGN test. See MSJ at 12-13. Thus, the Defendants argue, Trujillo's disabilities were accommodated. See MSJ at 13.

         Third, and finally with respect to qualified immunity, the Defendants note that Trujillo argues that his rights under the ADA were violated “based on the handcuffing of Plaintiff and his detention at the Sheriff's office for four hours.” MSJ at 13. The Defendants assert that Trujillo concedes that “the placement of his handcuffs in the front of his body was an accommodation to him.” MSJ at 13 (citing MSJ ¶ 18, at 5). The Defendants also contend that Trujillo “never asked Defendant Armijo or Atencio for an accommodation for his disability . . . at the scene of the arrest, on the way to the hospital, at the hospital, on the way to the Sheriff's Office, or at the Sheriff's Office.” MSJ at 13 (citing MSJ ¶¶ 21-22, at 6).

         Turning to the clearly established prong of qualified immunity analysis, the Defendants argue that Trujillo's rights under the ADA were not clearly established at the time of his arrest on August 22, 2013. See MSJ at 13. The Defendants contend that a right is clearly established only if its “‘contours were sufficiently definite that any reasonable official in [his] shoes would have understood that he was violating it.'” MSJ at 13 (quoting City & Cnty. of San Francisco v. Sheehan, 135 S.Ct. at 1774)(alterations in MSJ). As of 2015, they assert, “the Tenth Circuit still had not decided that accommodations are necessary when disabled individuals are arrested.” MSJ at 14 (citing J.H. v. Bernalillo Cnty., 806 F.3d at 1260-61 (citing Gohier v. Enright, 186 F.3d at 1221)). They contend that the Supreme Court also “has yet to weigh in on the issue.” MSJ at 14 (citing City & Cnty. of San Francisco v. Sheehan, 135 S.Ct. at 1773-74). As a result, they assert, the right to have ADA-compliant arrests “is not clearly established now and was not clearly established in August of 2013 when Plaintiff was arrested.” MSJ at 14.

         c. Trujillo's State Tort Claims.

         The Defendants turn next to Trujillo's state tort claims, beginning with his claims for false imprisonment and false arrest. See MSJ at 15. The Defendants assert that “[f]alse arrest is merely one way of committing false imprisonment” and that “[b]oth causes of action will fail if Defendant Atencio had probable cause to arrest Plaintiff.” MSJ at 15 (citing Santillo v. N.M. Dep't of Pub. Safety, 2007-NMCA-159, ¶ 12, 173 P.3d 6). Here, the Defendants contend, “the progression of events, from when Plaintiff first encountered Defendant Armijo until his arrest by Defendant Atencio, supports the probable cause to arrest Plaintiff.” MSJ at 15. In support of this contention, the Defendants note that Trujillo admitted to drinking two beers, that the results of his preliminary breath test showed that his blood alcohol level exceeded .08, that he failed the HGN and finger dexterity tests, that he had bloodshot eyes, and that he smelled of alcohol. See MSJ at 15 (citing Complaint ¶¶ 22-25, at 3). The Defendants conclude that “Atencio had probable cause to arrest Plaintiff based on these combined observations.” MSJ at 15 (citing State v. Sanchez, 2001-NMCA-109, 36 P.3d 446).

         Turning to Trujillo's malicious-abuse-of-process claim, the Defendants note that the tort is “narrowly construed” and that the tort's elements are: “(1) the use of process in a judicial proceeding that would be improper in the regular prosecution or defense of a claim or charge; (2) a primary motive in the use of process to accomplish an illegitimate end; and (3) damages.” MSJ at 16 (citing Durham v. Guest, 2009-NMSC-007, ¶ 29, 204 P.3d 19). The first prong, the Defendants note, is met where there is either “lack of probable cause, ” or “procedural impropriety [] suggesting ‘extortion, delay, or harassment' in the form of abusive ‘discovery, subpoenas' or similar misuse of procedural devices.” MSJ at 16 (quoting Durham v. Guest, 2009-NMSC-007, ¶ 29, 204 P.3d 19). Regarding the first of these theories, the Defendants reiterate that Atencio had probable cause to arrest Trujillo, and, thus, Trujillo's “malicious abuse of process claim cannot stand based on probable cause theory.” MSJ at 16. The second theory likewise fails, the Defendants assert, because there is no evidence that Atencio tried to extort Trujillo or delay any judicial proceeding. See MSJ at 16.

         The Defendants further contend that it is unclear whether Trujillo's administrative license revocation hearing qualifies as a “judicial proceeding” under the tort's first prong. MSJ at 16 (citing Durham v. Guest, 2009-NMSC-007, ¶ 34, 204 P.3d 19; State Taxation & Revenue Dep't, Motor Vehicle Div. v. Bargas, 2000-NMCA-103, ¶ 10, 14 P.3d 538; Dente v. State Taxation and Revenue Dep't, 1997-NMCA-099, ¶ 7, 946 P.2d 1104, overruled in part by State Taxation & Revenue Dep't, Motor Vehicle Div. v. Bargas, 2000-NMCA-103, 14 P.3d 538). Even assuming that the hearing is a judicial proceeding, they assert, there is no evidence of impropriety, because Trujillo's revocation hearing was timely and conformed to the applicable rules. See MSJ at 17. The Defendants argue that Trujillo was given timely notice of the revocation, that the hearing was timely held within ninety days of that notice, and that the results of Trujillo's blood test were not yet available at the time of the hearing. See MSJ at 17 (citing Implied Consent Act, NMSA § 66-8-111). The Defendants note that Trujillo highlights Atencio's objection to Trujillo's wife's presence at the hearing as evidence of harassment, but “making an objection, ” the Defendants advance, “is not a procedural shenanigan, it is simply voicing concern about a possible rule violation.” MSJ at 17 (citing Complaint ¶ 101, at 8). In any event, the Defendants argue, Atencio's objection was inconsequential, because it “was overruled as a matter of course by the hearing officer.” MSJ at 17.

         d. Trujillo's ADA Claim.

         Lastly, the Defendants address Trujillo's ADA Title II claim against Rio Arriba County. See MSJ at 17. The Defendants assert that, for a public entity to be held liable under the ADA, it “must have knowledge of the individual's disability and need for accommodation.” MSJ at 18 (citing Robertson v. Las Animas Cnty. Sheriff's Dep't, 500 F.3d 1185, 1196 (10th Cir. 2007)). Here, the Defendants contend, “there is no evidence to support Plaintiff's claim that Rio Arriba County Sheriff's office had any knowledge of Plaintiff's need for accommodation.” MSJ at 18. Trujillo “spoke to several officers to arrange to have his friend take his car, ” the Defendants note, but “never once communicated a need for special accommodations due to his disability.” MSJ at 18 (citing Deposition of John Trujillo at 54:2-5 (taken May 5, 2016), filed June 7, 2016 (Doc. 34-3)(Sullivan, Trujillo)(“Trujillo Depo.”)). The Defendants further note that Trujillo “said he did not have any other communications with officers at the scene of the DUI stop, ” MSJ at 18 (citing Trujillo Depo. at 55:11-13 (Sullivan, Trujillo)); that Trujillo “said he did not have any conversations with Defendant Atencio from the traffic stop to the Espanola Hospital, ” MSJ at 18 (citing Trujillo Depo. at 56:3-5 (Sullivan, Trujillo)); that Trujillo “did not ask for any accommodations at the hospital, ” MSJ at 18 (citing Trujillo Depo. at 56:9-57:22 (Sullivan, Trujillo)); that Trujillo “did not have any discussions with Atencio from the Hospital to the Sheriff's department, ” MSJ at 18 (citing Trujillo Depo. at 60:11-13 (Trujillo)); that, when his handcuffs were removed to sign a document, Trujillo “did not ask for any accommodations . . . before he was handcuffed again, ” MSJ at 18 (relying on Trujillo Depo. at 60:11-17 (Trujillo)); and that, finally, Trujillo did not ask either the transport driver or “the female officer who visited him in his cell for any accommodations, ” MSJ at 18 (citing Trujillo Depo. at 61:12-14; 62:5-17 (Sullivan, Trujillo)).

         In short, the Defendants argue that, throughout the events surrounding Trujillo's arrest, he repeatedly refrained from requesting any accommodations for his disability. See MSJ at 18. Accordingly, the Defendants assert, Trujillo's reliance on his “disability placard as evidence that he should have been offered accommodations” is unavailing. MSJ at 18. Even so, the Defendants note, despite Trujillo's failure to request accommodations or complain, “the officers handcuffed Plaintiff in the front as a courtesy and for Plaintiff's comfort . . . .” MSJ at 18. The Defendants conclude, therefore, that Trujillo's ADA rights were not violated “and the ADA claims against Rio Arriba County fail as a matter of law.” MSJ at 19.

         2. The MSJ Response.

         Trujillo responded to the MSJ on August 1, 2016. See MSJ Response at 1. Trujillo argues that his theory of the case is “simple” -- that “Atencio improperly used observations of his disability to determine probable cause for a DWI arrest.” MSJ Response at 1. Trujillo argues that, rather than suggest impairment, Atencio's observations of Trujillo “stumbling to get out of his car and leaning on his car revealed that [he] was disabled . . . .” MSJ Response at 1. “When Atencio's observations of Trujillo's disability are stripped away, ” Trujillo contends, “a reasonable jury could find that Atencio had no probable cause to arrest Trujillo.” MSJ Response at 1. Accordingly, Trujillo argues, “taking the facts in the light most favorable to the non-moving party, a reasonable jury could find Defendant Rio Arriba County violated John Trujillo's rights under Title II of the Americans with Disabilities Act . . . and the New Mexico Tort Claims Act.” MSJ Response at 1. In the alternative, Trujillo argues, should the Court grant summary judgment on Trujillo's ADA claim, the Court should “remand his state tort claims.” MSJ Response at 1.

         Trujillo proceeds to controvert a number of the Defendants' factual assertions, which the Court has reviewed supra in its discussion of the Undisputed Facts. After disputing these facts, Trujillo asserts that the Court, in determining whether to grant summary judgment, “must view the evidence ‘in the light most favorable to the opposing party.'” MSJ Response at 13 (quoting Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014)). Trujillo stresses that “the moving party must support its alleged facts with admissible evidence.” MSJ Response at 13 (citing Fed.R.Civ.P. 56(c)(2)). Here, Trujillo argues, the toxicology report is inadmissible, because: (i) the “Defendants have laid no foundation for its reliability or authenticity and have no evidence as to any interpretation of the results and what, if anything, the Diazapam [sic] means;” and (ii) “no part of Atencio's decision arrest [sic] Trujillo was based upon the toxicology report.” MSJ Response at 13. As a result, Trujillo asserts, “the toxicology report is hearsay and immaterial.” MSJ Response at 13.

         Trujillo advances four primary arguments in opposition to the MSJ. First, Trujillo contends that the MSJ should be denied, because the Defendants violated Trujillo's rights under the ADA. See MSJ Response at 14. Trujillo argues that Atencio “improperly used evidence of Trujillo's disability to provide probable cause” and that, absent evidence of Trujillo's disability, “a reasonable jury could find that Atencio had insufficient probable cause.” MSJ Response at 14. Trujillo asserts that the Tenth Circuit has “assumed without deciding that the ADA applies to arrests, ” MSJ Response at 14 (citing Gohier v. Enright, 186 F.3d at 1219), and that other Courts of Appeals have approved that assumption, see MSJ at 14 (citing Waller ex rel Estate of Hunt v. Danville, 556 F.3d 171, 174 (4th Cir. 2009)); MSJ at 15 (citing Thompson v. Davis, 295 F.3d 890, 897 (9th Cir. 2002)). Trujillo notes that the United States Court of Appeals for the Ninth Circuit, for example, holds that, “under the ADA regulations, law enforcement is obligated to modify ‘policies that result in discriminatory arrests or abuse of individuals with disabilities.'” MSJ at 15 (quoting Lum v. Cnty. of San Joaquin, 756 F.Supp.2d 1243, 1253 (E.D. Cal. 2010)(Karlton, J.)(quoting Thompson v. Davis, 295 F.3d 890, 897 (9th Cir. 2001))(emphasis in MSJ and in Lum v. Cnty. of San Joaquin, but not in Thompson v. Davis). Trujillo notes, moreover, that the Court has stated that “one theory of violation of Title II is the wrongful arrest theory, which posits that an entity is liable when ‘police arrest a suspect based on his disability, not for any criminal activity.'” MSJ Response at 14 (citing J.H. ex rel. J.P. v. Bernalillo Cnty., 2014 U.S. Dist. LEXIS 94132, at *314 (D.N.M. 2014)(Browning, J.)(citing Waller ex rel Estate of Hunt v. Danville, 556 F.3d at 174), aff'd, 806 F.3d 1255 (10th Cir. 2015)). Trujillo contends that the wrongful arrest theory requires proof that: “(i) the plaintiff was disabled; (ii) the arresting officers knew or should have known that the plaintiff was disabled; and (iii) the defendant arrested the plaintiff because of legal conduct related to the plaintiff's disability.” MSJ Response at 14 (quoting J.H. ex rel. J.P. v. Bernalillo Cnty., 2014 U.S. Dist. LEXIS 94132, at *394-95)(citation omitted).

         Turning to the facts of this case, Trujillo argues that he “was compliant in all of the officer's requests, ” and that he did not “pose a threat [of] harm to the officer's safety or the safety of others.” MSJ at 15 (comparing Trujillo's conduct to that of the plaintiff in Glover v. City of Wilmington, 966 F.Supp.2d 417 (D. Del. 2013)(Andrews, J.)). Trujillo insists that “[t]here were no exigent circumstances to disregard Plaintiff's visible disability” and that “Atencio used Trujillo's disabilities to improperly make a determination of impairment.” MSJ at 15. Trujillo asserts that he repeatedly informed Atencio that he was disabled, that his handicapped placard sign was hung on his rear view mirror “in plain sight of an officer approaching a vehicle, ” and that he “asked to use his cane.” MSJ Response at 15. Trujillo concludes that, viewing the facts in the light most favorable to him, he “merely admitted to consuming beer, performed well on a finger dexterity test and terminated the heel-to-toe test due to his disability.” MSJ Response at 15.

         At the same time, Trujillo contends that, “[e]ven when viewed in the light most favorable to Atencio, Trujillo's complaint of an improper consideration of his disability is apparent.” MSJ Response at 15. Trujillo notes that Atencio asked him to step out of his car and that, upon exiting, he “manifested his disability by grabbing onto the door for assistance to exit.” MSJ Response at 15-16. Trujillo notes, moreover, that he “requested his walking cane multiple times to assist him in standing and maintaining his balance, ” and “offered to produce proof of his disability . . . .” MSJ Response at 16. Trujillo asserts that Atencio, like the officer in Glover v. City of Wilmington, mistook these manifestations of disability for criminal activity and based his determination of probable cause on that misperception. See MSJ Response at 16 (citing Glover v. City of Wilmington, 966 F.Supp.2d at 429). Trujillo notes, however, that the court in Glover v. City of Wilmington denied summary judgment on the plaintiff's ADA Title II claim, despite that the officer did not require the plaintiff to perform any field sobriety tests which her disability would have affected, and despite that the officer was trained on interacting with persons with disabilities. See MSJ Response at 16 (citing Glover v. City of Wilmington, 966 F.Supp.2d at 429-30). Trujillo contends that, if summary judgment was denied based on those facts, the Court should likewise deny the MSJ, because Atencio subjected Trujillo to field sobriety tests that his disability affected, and because “Rio Arriba County has no training in identification of disabilities and no policies to exclude evidence of disabilities as evidence of impairment.” MSJ Response at 16.

         Second, Trujillo addresses Atencio's assertion of qualified immunity with respect to Trujillo's ADA claim. See MSJ Response at 16-17. Trujillo contends that, in 1999, “the Tenth Circuit established that there are no individual capacity suits under the ADA.” MSJ Response at 16 (citing Butler v. City of Prairie Vill., 172 F.3d 736, 744 (10th Cir. 1999)). Trujillo argues that his ADA claim is consistent with the Tenth Circuit's holding -- that he asserts the claim only against Rio Arriba County, a public entity, and not against Atencio. See MSJ Response at 17 (citing Complaint ¶¶ 125-37, at 10-12). Trujillo contends, moreover, that public entities such as Rio Arriba County do “not have sovereign immunity for claims arising under the ADA.” MSJ Response at 17 (citing 42 U.S.C. § 12202).

         Third, Trujillo asserts that, should the Court grant summary judgment on the ADA claim, it should remand Trujillo's state law claims. See MSJ Response at 17. Trujillo asserts that the Court has “acknowledged the Supreme Court's and the Tenth Circuit's preference for remand of state claims when federal claims are dismissed.” MSJ Response at 17 (citing Armijo v. New Mexico, 2009 U.S. Dist. LEXIS 101917, at *4 (D.N.M. 2009)(Browning, J.); Bd. of Cnty. Comm'rs v. Geringer, 297 F.3d 1108, 1115 (10th Cir. 2002)). Trujillo asserts that, under 28 U.S.C. § 1367(c)(3), a district court should decline to exercise supplemental jurisdiction over state law claims when it “dismisses a claim that provided original federal-question jurisdiction[.]” MSJ Response at 17. Trujillo emphasizes the Court's pronouncement in Armijo v. New Mexico that “‘New Mexico state courts are more experienced and knowledgeable about the contours of state law. Also, federal courts should strive to avoid deciding issues of state law when . . . it is possible to do so.'” MSJ Response at 18 (quoting Armijo v. New Mexico, 2009 U.S. Dist. LEXIS 101917, at *4).

         Fourth, and finally, Trujillo contends that a jury should decide his false-arrest and malicious prosecution claims. See MSJ Response at 18. Trujillo reasons that a claim for false arrest “consists of lack of probable cause for arrest.” MSJ Response at 18 (citing Ulibarri v. Maestas, 1964-NMSC-212, ¶ 3, 395 P.2d 238). Trujillo asserts that Atencio did not have probable cause to arrest him and that “Atencio cannot assert after discovered evidence to support a finding of probable cause.” MSJ Response at 18 (citing Maryland v. Garrison, 480 U.S. at 85). Trujillo notes that he concedes that he drank two beers, but that “[e]very other allegation of impairment is disputed or is evidence of a disability.” MSJ Response at 19. Trujillo contends that he “disputes slurred speech, ” that he “disputes failing a finger dexterity test, ” that he “performed well on an alphabet recitation test, ” that he “drove his car without incident into the secondary area, ” that “Atencio admits Trujillo did well” on an alternative test, and that, on the other alternative test, “Trujillo disputes Atencio's claims.” MSJ Response at 19. From this record, Trujillo argues, “a reasonable jury could determine Atencio lacked probable cause.” MSJ Response at 19.

         3. The MSJ Reply.

         The Defendants replied on September 15, 2016. See MSJ Reply at 1. The Defendants open by withdrawing Atencio's assertion of qualified immunity, because Trujillo clarified in the MSJ Response that his ADA claim “is brought solely against the municipal defendant.” MSJ Reply at 1. Turning to the merits, the Defendants contend that Trujillo “raised no genuine issues of material fact in his Response and no reasonable jury could find Defendant Atencio lacked probable cause to arrest Plaintiff on suspicion of driving while intoxicated.” MSJ Reply at 1. The Defendants advance that, because “the fundamental issue of Plaintiff's Complaint is whether probable cause existed, all of Plaintiff's claims should be dismissed with prejudice and judgment entered in favor of the Defendants.” MSJ Reply at 1-2. The Defendants make two primary arguments in support of this contention: (i) that Trujillo was arrested based on probable cause; and (ii) that, under the doctrine of res judicata, Trujillo's remaining state law claims fail as a matter of law.

         a. Probable Cause.

         The Defendants first argue that, “giving all reasonable inferences to Plaintiff, the undisputed facts demonstrate Defendant Atencio had probable cause to arrest.” MSJ Reply at 8. Trujillo was arrested “based upon facts that are not influenced by Plaintiff's disability, ” the Defendants assert, not based upon a misapprehension of Trujillo's “disability as evidence of criminality.” MSJ Reply at 8. The Defendants proffer the following “undisputed facts” which, they argue, demonstrate that there was “probable cause without Plaintiff's stumbling and balance issues”: (i) Trujillo's “admission to drinking two 12-ounce beers”; (ii) Trujillo's “observable eye horizontal gaze nystagmus”; (iii) the odor of alcohol; (iv) Trujillo's bloodshot eyes; and (v) Trujillo's slurred speech. MSJ Reply at 8-9. The Defendants note that probable cause in New Mexico requires an objectively reasonable belief that an arrestee “‘had been driving while he was to the slightest degree impaired, that is, unable to exercise the clear judgment and steady hand necessary to handle a vehicle in a safe [manner].'” MSJ Reply at 9 (quoting State v. Granillo-Macias, 2008-NMCA-021, ¶ 9, 176 P.3d 1187)(internal quotation marks omitted in MSJ Reply)(alteration added). The federal standard for probable cause, the Defendants note, requires “‘facts and circumstances . . . sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.'” MSJ Reply at 9 (quoting Brown v. Dietz, 12 F. App'x. 848, 851 (10th Cir. 2001)(citing Brinegar v. United States, 338 U.S. at 175-76)).

         The Defendants proceed to analogize this case to the facts of state and federal cases which have upheld an officer's determination of probable cause. See MSJ Reply at 9-11. The Defendants argue that New Mexico state courts have found probable cause “where the driver had not exhibited erratic driving but had bloodshot and watery eyes, smelled of alcohol, admitted drinking, and refused to take field sobriety tests, ” MSJ Reply at 9 (citing State v. Sanchez, 2001-NMCA-109, ¶ 2, 36 P.3d 446); where “the driver had admitted to drinking two beers, smelled of alcohol, had bloodshot watery eyes, had slurred speech, swayed during conversation, and was unable to complete the field sobriety tests, ” MSJ Reply at 9-10 (citing State v. Jones, 1998-NMCA-076, ¶ 10, 964 P.2d 117); and where the officer relied on “reports of the driver's prior consumption of alcohol, the officer's observation of the smell of alcohol, and the driver's slurred speech, ” MSJ Reply at 10 (citing State v. Hernandez, 1980-NMCA-138, ¶¶ 2-9, 619 P.2d 570). The Defendants assert that the “Tenth Circuit has also found probable cause to arrest under similar circumstances.” MSJ Reply at 10 (citing United States v. Chavez, 660 F.3d 1215, 1223 (10th Cir. 2011)). The Defendants cite United States v. Chavez, where, they argue, the Tenth Circuit upheld a probable-cause determination “based on bloodshot watery eyes, the smell of alcohol, and the Officer's observations during the driver's performance of the three field sobriety tests.” MSJ Reply at 10 (citing United States v. Chavez, 660 F.3d at 1224). The Defendants note that the Tenth Circuit relied on Sherbrooke v. City of Pelican Rapids, 577 F.3d 984 (8th Cir. 2009), which “held probable cause existed based on the smell of alcohol on the driver's breath, the driver's admission to drinking, and the driver's failure of one of the three field sobriety tests.” MSJ Reply at 10 (citing Sherbrooke v. City of Pelican Rapids, 577 F.3d at 987-88).

         The Defendants assert that these cases illustrate that failure of “one of the three standard field sobriety tests” -- such as the HGN test -- is very strong evidence of probable cause. MSJ Reply at 10 (relying on Sherbrooke v. City of Pelican Rapids, 577 F.3d at 987-88). The Defendants contend that “[o]fficers are trained that failure of the HGN is highly predictive of alcohol consumption.” MSJ Reply at 11 (citing MSJ ¶ 10, at 5). The Defendants argue, moreover, that officers “reasonably give more weight to their observations during the HGN test over the other more subjective field sobriety tests.” MSJ Reply at 11 (citing United States v. Hernandez-Gomez, 2008 U.S. Dist. LEXIS 26810, at *5 (D. Nev. 2008)). Finally, the Defendants assert that “[c]ourts around the country have held the results of the HGN test are admissible evidence in a DWI/DUI case.” MSJ Reply at 11 (citing United States v. Horn, 185 F.Supp.2d at 546-53).

         Turning to this case's facts, the Defendants contend that “the undisputed failure of the HGN test . . ., the smell of alcohol, Plaintiff's admission to drinking, ” along with Atencio's “observations of bloodshot eyes and slurred speech, would lead any reasonable officer [] to believe Plaintiff had been driving while he was impaired in violation of NMSA 66-8-102.” MSJ Reply at 11. Thus, the Defendants argue, “no reasonable jury could find otherwise and the Court should hold, as a matter of law, that Defendant Atencio had probable cause to arrest Plaintiff on August 22, 2013.” MSJ Reply at 11. The Defendants conclude by contending that, because Trujillo was arrested based on probable cause, Trujillo's ADA claim fails, because he was not arrested “by reason of disability.” MSJ Reply at 11. Rather, the Defendants assert, Trujillo's “arrest was reasonably based on factors that do not include mistaking his disability for illegal activity.” MSJ Reply at 11.

         b. Res Judicata.

         The Defendants turn second to address Trujillo's request that the Court remand his state law claims in the event it grants summary judgment on his ADA claim. See MSJ Reply at 11. The Defendants respond that, if the Court concludes that Trujillo's arrest was based on probable cause, Trujillo's state tort claims fail as a matter of law under the doctrine of res judicata. See MSJ Reply at 11. The Defendants assert that “[t]he existence of probable cause . . . will dispose of Plaintiff's remaining claims by removing the necessary element of unlawfulness that is required to prove false arrest/imprisonment or malicious abuse of process.” MSJ Reply at 12 (citing Santillo v. N.M. Dep't of Pub. Safety, 2007-NMCA-159, ¶ 12, 173 P.3d 6; Durham v. Guest, 2009-NMSC-007, ¶ 18, 204 P.3d 19). “If probable cause is established, ” the Defendants argue, “the arrest and the filing of the criminal complaint are lawful, ” and, therefore, “there is no false arrest, no false imprisonment, and no malicious abuse of process.” MSJ Reply at 12. The Defendants conclude that, “under the doctrine of res judicata, once probable cause is established, the state claims fail as a matter of law.” MSJ Reply at 12.

         4. The Hearing.

         The Court held a hearing on the MSJ on September 21, 2016. See Transcript of Motion Hearing held on September 21, 2016 at 1 (“Tr.”).[21] The Court opened the hearing by stating that it was inclined to agree with the Defendants that Atencio had probable cause to arrest Trujillo, which may “end[] the inquiry on the ADA claim” as it did in J.H. v. Bernalillo County. Tr. at 2:24-3:6 (Court). At the same time, the Court indicated that it was inclined to remand Trujillo's state law claims for the state court's resolution. See Tr. at 3:7-13 (Court).

         The Defendants briefly took up argument, largely reiterating the arguments in the MSJ and MSJ Reply. See Tr. at 3:18 (Salvato). The Defendants contended that whether Atencio had probable cause to arrest Trujillo is the “fundamental issue before the Court” and that the facts outlined in the MSJ “would lead any reasonable officer to conclude that Plaintiff had violated New Mexico Statute 1978 66-8-102A.” Tr. at 3:20-4:2 (Salvato). Regarding Trujillo's request for remand, the Defendants asserted that federal courts routinely rule on criminal matters, “especially in the area of DWI based on state law.” Tr. at 4:3-9 (Salvato).

         In rejoinder, Trujillo asserted that the facts, when read in the light most favorable to him, do not support probable cause. See Tr. at 5:7-9 (Kennedy). Rather, Trujillo argued that the facts show that he was “clearly . . . disabled.” Tr. at 5:18-19 (Kennedy). Trujillo recalled that he stumbled as he exited his car, that he leaned on his car, that “[t]here was a sticker on his car that indicated that he was disabled, ” and that he asked for his cane, a request which Atencio denied. Tr. at 6:16-21 (Kennedy). Trujillo argued that these facts are distinguishable from those in J.H. v. Bernalillo County, because here, Trujillo requested an accommodation, Atencio arrested Trujillo based on his disabilities, and Atencio was not educated on how to interact with disabled individuals. See Tr. at 6:4-14 (Kennedy). Trujillo advances that J.H. v. Bernalillo County is nonetheless controlling, because the Tenth Circuit concluded that the ADA's Title II “does prohibit arrest based on people's disabilities.” Tr. at 7:12-19 (Kennedy). See id. (Kennedy)(noting that the United States Courts of Appeals for the Fourth and Ninth Circuits have followed the Tenth Circuit's reasoning). Trujillo argued that, moreover, he passed the only test that constituted a reasonable accommodation under the ADA -- the “ABC test.” Tr. at 6:15-21 (Kennedy).

         Trujillo turned to address Atencio's use of the HGN test as a basis for probable cause. See Tr. at 76:22 (Kennedy). Trujillo argued that, “in the deposition of Atencio, he conceded that the HGN test does not provide probable cause.” Tr. at 6:22-23 (Kennedy). Trujillo posited that Atencio “understands that the [HGN] clues . . . can be caused by sugar, can be caused by caffeine, ” and that “it certainly isn't an indication that someone has ingested alcohol.” Tr. at 6:24-7:1 (Kennedy). In Trujillo's view, the HGN test is “typically used by officers as a reasonable suspicion, ” and “HGN is not admissible in court in criminal cases.” Tr. at 7:2-7 (Kennedy).

         Trujillo proceeded to contend that the Defendants improperly submitted facts “gathered after the handcuffing, after the arrest” and that those facts -- namely, “the DRE analysis” -- “cannot be considered.” Tr. at 8:4-7 (Kennedy). Trujillo noted that Atencio “admitted in his deposition that he did no investigation as to whether Mr. Trujillo had ingested any . . . type of medication that would inhibit his ability to operate a moving vehicle.” Tr. at 8:8-11 (Kennedy). Trujillo argued that, “in a case of probable-cause analysis, [the Court] can only consider the facts the officer knew at the time prior to the arrest.” Tr. at 8:12-14 (Kennedy). “If you strip the Defendants' proposed material facts from this, ” Trujillo asserted, “the facts that the officer knew at the time of the arrest were that he had had two beers with dinner two hours previously, and that's it.” Tr. at 8:14-18 (Kennedy). Trujillo argued that, moreover, that he was acquitted after his arrest illustrates that he is “an innocent [man] who is disabled and who is arrested as a result of his disability, which is a viable claim that a jury should be able to consider.” Tr. at 9:7-12 (Kennedy).

         The Court interjected, noting that “[t]he Tenth Circuit's already said that a person drinking one beer several hours before provides reasonable suspicion.” Tr. at 10:3-6 (Court)(referring to Vondrak v. City of Las Cruces). In light of that, the Court asked Trujillo what more is needed for his admission of two beers to constitute probable cause. See Tr. at 10:7-11 (Court). Trujillo responded that drinking two beers does not constitute probable cause, especially when there is no evidence of bad driving. See Tr. at 10:12-15 (Kennedy). Further, Trujillo argued that Atencio's probable-cause investigation did not begin when Trujillo told Armijo that he drank two beers, but, rather, when Trujillo stepped out of the car and requested his cane -- the point at which, in Trujillo's view, Atencio “beg[an] to discriminate against Mr. Trujillo.” Tr. at 10:16-11:10 (Kennedy). Trujillo argued, therefore, that the only fact giving rise to probable cause that preceded Atencio's discrimination against him was his admission of drinking two beers at some unspecified time. See Tr. at 11:11-15 (Kennedy). Trujillo stressed that the “key fact” is that Atencio refused to allow him to use his cane, which illustrates that Rio Arriba County does not have a “procedure to investigate those suffering from disabilities.” Tr. at 11:23-12:4 (Kennedy). In short, Trujillo asserted that Atencio “is simply untrained and [i]ncapable of making an objective probable cause determination when faced with a subject who is disabled, and that's discrimination.” Tr. at 12:1-4 (Kennedy).

         The Court queried what accommodation, “other than not giving him this cane, ” Trujillo alleges that Atencio failed to provide him. Tr. at 12:5-7 (Court). Trujillo suggested that “counting backwards from one to ten is a classic field sobriety test for those who are physically disabled and overweight.” Tr. at 12:8-12 (Kennedy). Yet, Trujillo asserted, Atencio “asked a man who's asking for a cane to stand on one leg. That is almost animus towards the disability.” Tr. at 12:13-20 (Kennedy). Trujillo noted that Atencio also required “a man who lost his thumb . . . [to] do the finger-counting test.” Tr. at 12:21-24 (Kennedy). Accordingly, Trujillo argued, “[i]n the light most favorable to Plaintiff, you have an officer who's almost mocking a man's disabilities by forcing him to engage in testing which clearly he's physically incapable of doing.” Tr. at 12:25-13:3 (Kennedy). Trujillo added that he passed the “alphabet test” and that he “should have been released after he passed the alphabet test.” Tr. at 13:4-5 (Kennedy). Trujillo contended that the subsequent HGN test -- conducted after he was “denied his cane” -- may have provided “reasonable suspicion . . ., but it certainly isn't probable cause.” Tr. at 13: 6-10 (Kennedy).

         The Court turned to the Defendants, inquiring at which point during the encounter Atencio developed probable cause, and asking whether they agreed that Atencio did not develop probable cause “simply by Mr. Trujillo saying that he had had two beers[.]” Tr. at 13:18-24 (Court). The Defendants responded that they “agree that he did not develop probable cause based on consumption of the 24 ounces of beer.” Tr. at 13:25-14:2 (Salvato). Rather, they posited, “[p]robable cause was developed through a totality of the circumstances, ” including Trujillo's smell of alcohol, and, “very critically, ” the presence of “all six clues of the horizontal gaze nystagmus.” Tr. at 14:3-8 (Salvato). The Defendants asserted that HGN “is a completely neutral test” that is not “based upon the disability of his joints or his thumb.” Tr. at 14:9-11 (Salvato). The Defendants added that, during the HGN test, Atencio “had plenty of time to observe” Trujillo's bloodshot eyes and slurred speech. Tr. at 14:16-19 (Salvato). The Defendants reasoned that Atencio is “reasonably trained” that “all six clues of horizontal gaze nystagmus pla[y] heavily into the probable cause analysis.” Tr. at 14:22-25 (Salvato). The Defendants conceded that Trujillo's disability would prevent him from performing “the other two field sobriety tests which require[] coordination, ” but contended that those tests “aren't weighted as heavily.” Tr. at 15:1-4 (Salvato). Indeed, the Defendants asserted, “[r]easonable officers in the field rely on the horizontal gaze nystagmus test.” Tr. at 15:5-6 (Salvato). The Defendants explained that officers are trained that HGN correlates with blood alcohol content -- that “greater than 45 degrees equals greater than .1 percent [blood alcohol content], [which] is a per se violation of the statute . . ., because .08 is the legal limit.” Tr. at 16:7-11 (Salvato). Accordingly, in response to the Court's original question, the Defendants concluded that “probable cause really came into play at the horizontal gaze nystagmus test.” Tr. at 15:21-24 (Salvato).

         The Court pivoted to Trujillo, asking whether, disregarding all else, Trujillo's admission to drinking two beers and his failure of the HGN test constituted probable cause. See Tr. at 16:12-19 (Court). In response, Trujillo asserted that “no officer thinks that the nystagmus test establishes probable cause. That's why you do the field tests.” Tr. at 16:20-24 (Kennedy). Trujillo posited that, indeed, “[e]veryone knows nystagmus can be caused by things other than alcohol” and that “[s]ome people naturally have nystagmus.” Tr. at 17:5-8 (Kennedy). For those reasons, Trujillo asserted, the HGN test is “inadmissible at trial, ” and the “jury would never be able to consider the test.” Tr. at 17:1-3 (Kennedy). Trujillo extrapolated that the HGN test is “inadmissible” in New Mexico state court, because “officers cannot lay the foundation for it, and they know that.” Tr. at 17:18-23 (Kennedy). Again, Trujillo asserted, HGN supplies “reasonable suspicion but not probable cause.” Tr. at 17:24-25 (Kennedy). Thus, Trujillo argued, Atencio could only determine probable cause based on Trujillo's admission to drinking two beers “sometime in the past, which isn't sufficient probable cause.” Tr. at 18:9-16 (Kennedy).

         The Court interposed, stating that whether the HGN test is admissible in state court “is sort of irrelevant” to the probable-cause determination. Tr. at 18:17-21 (Court). Trujillo demurred, arguing that “an officer can only rely on admissible evidence in determining probable cause” and that the “jury wouldn't be able to hear about the nystagmus as a basis for probable cause.” Tr. at 18:22-19:2 (Kennedy). Trujillo posited, however, that, disregarding the admissibility issue, “an officer in the field [cannot] rely on nystagmus for probable cause.” Tr. at 19:3-6 (Kennedy). Trujillo advanced that “[t]hat's why they have to do objective fields and [not] discriminate based on a disability.” Tr. at 19:6-7 (Kennedy). In rejoinder, the Court noted that courts frequently base probable cause determinations for search warrants and arrest warrants on inadmissible evidence such as hearsay. See Tr. at 19:14-20 (Court). The Court reasoned that, accordingly, an officer may properly rely on the HGN test under federal law, regardless whether such evidence “would be admissible in a state case for DWI.” Tr. at 19:21-20:3 (Court). Trujillo noted his agreement with the Court, but maintained that “an objectively reasonable officer in the field does not find probable cause based on nystagmus.” Tr. at 20:4-7 (Kennedy).

         The Defendants argued one last time. See Tr. at 21:6 (Salvato). They argued that, despite Trujillo's assertion to the contrary, Atencio and Armijo had an idea how recently Trujillo consumed the two beers. See Tr. at 21:15-17 (Salvato). The Defendants noted that Trujillo said he was returning from dinner at a restaurant located half an hour from the DUI checkpoint, which he encountered at 7:00 p.m. See Tr. at 21:6-14 (Salvato). Logically, the Defendants reasoned, Trujillo must have left the restaurant at 6:30 p.m. See Tr. at 21:11-14 (Salvato). The Defendants also responded to Trujillo's argument that Atencio “fabricated [probable cause] after the fact, ” contending that Trujillo's smell of alcohol, his bloodshot eyes, and his slurred speech were “documented on the same day as the arrest.” Tr. at 21:18-23 (Salvato). Finally, the Defendants conceded that the HGN test “in and of itself does not establish probable cause, but when viewed in the totality of the circumstances, it absolutely does.” Tr. at 21:24-22:2 (Salvato). Moreover, the Defendants contended that the test is “absolutely admissible in both criminal cases [] once a proper foundation has been laid in the state of New Mexico” and that United States v. Horn held that the test is “admissible for the purposes of probable cause in federal court.” Tr. at 22:2-6 (Salvato).

         Having heard extensive arguments from both sides, the Court stated that it was still inclined to conclude that Atencio had probable cause. See Tr. at 22:9-11 (Court). The Court noted that, accordingly, it was “inclined to grant the motion in part and dismiss the ADA claim and [remand] the state claims.” Tr. at 22:11-14 (Court).

         LAW REGARDING SUMMARY JUDGMENT

         Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “The movant bears the initial burden of ‘show[ing] that there is an absence of evidence to support the nonmoving party's case.'” Herrera v. Santa Fe Pub. Sch., 956 F.Supp.2d 1191, 1221 (D.N.M. 2013)(Browning, J.)(quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d at 891). See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence -- using any of the materials specified in Rule 56(c) -- that would entitle it to a directed verdict if not controverted at trial.” Celotex Corp. v. Catrett, 477 U.S. at 331 (Brennan, J., dissenting)(emphasis in original).[22] Once the movant meets this burden, rule 56 requires the nonmoving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

         The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993)(“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.”)(internal quotation marks omitted). Rule 56(c)(1) provides: “A party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his pleadings.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 256. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir. 1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980)(“However, once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.”)(citation and internal quotation marks omitted). Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat'l Ins. Co. v. Omer, 2008 U.S. Dist. LEXIS 45838, at *1 (D. Kan. 2008)(Robinson, J.)(citing Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006); Fed.R.Civ.P. 56(e)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.'” Colony Nat'l Ins. Co. v. Omer, 2008 U.S. Dist. LEXIS 45838, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)).

         To deny a motion for summary judgment, genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 250. A mere “scintilla” of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). Rather, there must be sufficient evidence on which the fact finder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539. “[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable . . . or is not significantly probative, . . . summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249 (citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the nonmoving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court's role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249. Second, the ultimate standard of proof is relevant for purposes of ruling on a summary judgment, such that, when ruling on a summary judgment motion, the court must “bear in mind the actual quantum and quality of proof necessary to support liability.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 254. Third, the court must resolve all reasonable inferences and doubts in favor of the nonmoving party, and construe all evidence in the light most favorable to the nonmoving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55 (1999); Anderson v. Liberty Lobby, Inc., 477 U.S. at 255 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”). Fourth, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255.

         There are, however, limited circumstances in which the court may disregard a party's version of the facts. This doctrine developed most robustly in the qualified immunity arena. In Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court concluded that summary judgment was appropriate where video evidence “quite clearly contradicted” the plaintiff's version of the facts. 550 U.S. at 378-81. The Supreme Court explained:

At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. [at] 586-587 . . . (footnote omitted). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. [at] 247-248 . . . . When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

Scott v. Harris, 550 U.S. at 380 (emphasis in original). Applying these standards to a factual dispute over whether the plaintiff-respondent “was driving in such fashion as to endanger human life, ” the Supreme Court held that the plaintiff-respondent's “version of events is so utterly discredited by the record that no reasonable jury could have believed him.” Scott v. Harris, 550 U.S. at 380. Thus, the Supreme Court concluded, “[t]he Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by [a] videotape” which showed the plaintiff-respondent driving extremely dangerously. Scott v. Harris, 550 U.S. at 381.

         The Tenth Circuit applied this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir. 2009), and explained:

[B]ecause at summary judgment we are beyond the pleading phase of the litigation, a plaintiff's version of the facts must find support in the record: more specifically, “[a]s with any motion for summary judgment, when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts.” York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008)(quoting Scott [v. Harris], 550 U.S. at 380); see also Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1258 (10th Cir. 2008).

Thomson v. Salt Lake Cnty., 584 F.3d at 1312 (brackets omitted). “The Tenth Circuit, in Rhoads v. Miller, [352 F. App'x 289 (10th Cir. 2009)(Tymkovich, J.)(unpublished), [23] explained that the blatant contradictions of the record must be supported by more than other witnesses' testimony[.]” Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1249 (D.N.M. 2010)(Browning, J.)(citation omitted), aff'd, 499 Fed. App'x. 771.

In evaluating a motion for summary judgment based on qualified immunity, we take the facts “in the light most favorable to the party asserting the injury.” Scott v. Harris, 550 U.S. 372, 377 (2007). “[T]his usually means adopting . . . the plaintiff's version of the facts, ” id. at 378, unless that version “is so utterly discredited by the record that no reasonable jury could have believed him, ” id. at 380. In Scott, the plaintiff's testimony was discredited by a videotape that completely contradicted his version of the events. 550 U.S. at 379. Here, there is no videotape or similar evidence in the record to blatantly contradict Mr. Rhoads' testimony. There is only other witnesses' testimony to oppose his version of the facts, and our judicial system leaves credibility determinations to the jury. And given the undisputed fact of injury, Mr. Rhoads' alcoholism and memory problems go to the weight of his testimony, not its admissibility . . . . Mr. Rhoads alleges that his injuries resulted from a beating rendered without resistance or provocation. If believed by the jury, the events he describes are sufficient to support a claim of violation of clearly established law under Graham v. Connor, 490 U.S. 386, 395-96 (1989), and this court's precedent.

Rhoads v. Miller, 352 F. App'x at 291-92 (internal quotation marks omitted). See Lymon v. Aramark Corp., 728 F.Supp.2d at 1249-50 (quoting Rhoads v. Miller, 352 F. App'x at 291-92). In a concurring opinion in Thomson v. Salt Lake County, the Honorable Jerome A. Holmes, United States Circuit Judge for the Tenth Circuit, stated that courts must focus first on the legal question of qualified immunity and “determine whether plaintiff's factual allegations are sufficiently grounded in the record such that they may permissibly comprise the universe of facts that will serve as the foundation for answering the legal question before the court, ” before inquiring into whether there are genuine issues of material fact for resolution by the jury. 584 F.3d at 1326-27 (Holmes, J., concurring)(citing Goddard v. Urrea, 847 F.2d 765, 770 (11th Cir. 1988)(Johnson, J., dissenting))(observing that, even if factual disputes exist, “these disputes are irrelevant to the qualified immunity analysis because that analysis assumes the validity of the plaintiffs' facts”).

         LAW REGARDING QUALIFIED IMMUNITY

         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 (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, 2009 U.S. Dist. LEXIS 45670, at *10 (D.N.M. 2009)(Browning, J.)(quoting Siegert v. Gilley, 500 U.S. 226, 232 (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 (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).

Under § 1983 (invoked in this case) and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 . . . (1971), a plaintiff may seek money damages from government officials who have violated her constitutional or statutory rights. But to ensure that fear of liability will not “unduly inhibit officials in the discharge of their duties, ” Anderson v. Creighton, 483 U.S. 635, 638 . . . (1987), the officials may claim qualified immunity; so long as they have not violated a “clearly established” right, they are shielded from personal liability, Harlow v. Fitzgerald, 457 U.S. 800, 818 . . . (1982). That means a court can often avoid ruling on the plaintiff's claim that a particular right exists. If prior case law has not clearly settled the right, and so given officials fair notice of it, the court can simply dismiss the claim for money damages. The court need never decide whether the plaintiff's claim, even though novel or otherwise unsettled, in fact has merit.

Camreta v. Green, 131 S.Ct. 2020, 2030-31 (2011).

         Issues of qualified immunity are best resolved at the “earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S. 223, 232 (2009)(quoting Hunter v. Bryant, 502 U.S. 224, 227 (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 (quoting Harlow v. Fitzgerald, 457 U.S. at 818). 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 (2001). 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).

         1. Procedural Approach to Qualified Immunity.

         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. The Supreme Court also noted that, while no longer mandatory, the protocol that Saucier v. Katz outlined -- 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. 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. 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 (alterations omitted)(internal quotation marks omitted). See Reichle v. Howards, 132 S.Ct. 2088, 2093 (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”). Once the plaintiff establishes an inference that the defendant's conduct violated a clearly established constitutional right, a qualified immunity defense generally fails. See Cannon v. City & Cnty. of Denver, 998 F.2d 867, 870-71 (10th Cir. 1993).

         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). 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.[24]

         “Courts should think carefully before expending ‘scarce judicial resources' to resolve difficult and novel questions of constitutional or statutory interpretation that will ‘have no effect on the outcome of the case.'” Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2080 (2011)(quoting Pearson v. Callahan, 555 U.S. at 236-37). See Camreta v. Greene, 131 S.Ct. at 2032 (“In general, courts should think hard, and then think hard again, before turning small cases into large ones.”).[25] The Tenth Circuit will remand a case to the district court for further consideration when the district court has given cursory treatment to the clearly established prong of the qualified immunity analysis. See Kerns v. Bader, 663 F.3d at 1182.

         2. Clearly Established Rights in the Qualified Immunity Analysis.

         To determine whether a right was clearly established, a court must consider 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 F. App'x 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 at 923. 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 (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 at 1186 (alteration in original)(quoting Saucier v. Katz, 533 U.S. at 202). 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, ‘existing precedent must have placed the statutory or constitutional question beyond debate.'” Reichle v. Howards, 132 S.Ct. at 2093 (quoting Ashcroft v. al-Kidd, 131 S.Ct. at 2083). “The operation of this standard, however, depends substantially upon the level of generality at which the relevant ‘legal rule' is to be identified.” Anderson v. Creighton, 483 U.S. at 639. “The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment [to the Constitution of the United States of America] is of little help in determining whether the violative nature of particular conduct is clearly established.” Ashcroft v. al-Kidd, 131 S.Ct. at 2084. The level of generality at which the legal rule is defined is important, because qualified immunity shields officers who have “reasonable, but mistaken beliefs” as to the application of law to facts and operates to protect officers from the sometimes “hazy border[s]” of the law. Saucier v. Katz, 533 U.S. at 205.

         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 (2002).

         LAW REGARDING TITLE II OF THE ADA'S APPLICATION TO ARRESTS

         Title II of the ADA, 42 U.S.C. §§ 12131-12165, commands that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of such services, programs or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The Tenth Circuit requires that a plaintiff prove three factors to establish a claim under Title II: (i) that he or she is a qualified individual with a disability; (ii) that he or she was either excluded from participation in or denied the benefits of some public entity's services, programs, or activities, or the public entity otherwise discriminated against the plaintiff; and (iii) that such exclusion, denial of benefits, or discrimination was by reason of the plaintiff's disability. See Robertson v. Las Animas Cnty. Sheriff's Dep't, 500 F.3d at 1193; Gohier v. Enright, 186 F.3d at 1219 (stating that this general standard, which tracks the statute's language, is “plainly correct”). “Although a plaintiff may claim intentional discrimination, the Tenth Circuit has not yet articulated the essential elements of a claim of intentional discrimination under Title II of the ADA or detailed what a plaintiff must plead at a minimum to establish such a claim.” Braverman v. New Mexico, 2012 U.S. Dist. LEXIS 155676, at * 22 (D.N.M. 2012)(Browning, J.)(citing Ty l e r v. City of Manhattan, 118 F.3d 1400, 1405 (10th Cir. 1997)(Jenkins, J., dissenting); Young v. City of Claremore, Okla., 411 F.Supp.2d 1295, 1314 (N.D. Okla. 2005)).

         “Only public entities are subject to Title II[.]” City & Cnty. of San Francisco v. Sheehan, 135 S.Ct. at 1773 (citing Pa. Dep't of Corrs. v. Yeskey, 524 U.S. 206, 208 (1998)). Title II “does not provide for individual capacity suits against state officials.” Braverman v. New Mexico, 2011 U.S. Dist. LEXIS 138808, at *22 (D.N.M. 2011)(Browning, J.)(“Title II's plain language would therefore suggest that officials may not be sued in their individual capacity.”). See J.H. ex rel. J.P. v. Bernalillo Cnty., 2014 U.S. Dist. LEXIS 94132, at *99 (stating that no claim against an official in his individual capacity exists under Title II). The Tenth Circuit has also held that “the ADA precludes personal capacity suits against individuals who do not otherwise qualify as employers under the statutory definition.” Butler v. City of Prairie Vill., 172 F.3d at 744. Several other United States Courts of Appeals have held that the ADA “does not provide for individual liability, only for employer liability.” Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996). See, e.g., Carten v. Kent State Univ., 282 F.3d 391, 396-97 (6th Cir. 2002); Garcia v. SUNY Health Sciences Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001); Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n.8 (8th Cir. 1999); EEOC v. AIC Sec. Inv., 55 F.3d 1276, 1279-82 (7th Cir. 1995); Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991).

         The Supreme Court recently declined to decide whether the ADA applies to arrests. See City & Cnty. of San Francisco v. Sheehan, 135 S.Ct. at 1773. In City & County of San Francisco v. Sheehan, police officers were dispatched to a group home for individuals dealing with mental illness in response to a request to take a potentially violent resident suffering from schizoaffective disorder to a secure facility. 135 S.Ct. at 1770. Upon the officers' arrival, the resident became violent and threatened the officers with a kitchen knife. See City & Cnty. of San Francisco v. Sheehan, 135 S.Ct. at 1770. A violent altercation ensued in which the officers pepper-sprayed and shot the resident multiple times until she fell. See City & Cnty. of San Francisco v. Sheehan, 135 S.Ct. at 1771. The Supreme Court noted that, in deciding to enter the room without backup, the officers “did not pause to consider whether Sheehan's disability should be accommodated.” City & Cnty. of San Francisco v. Sheehan, 135 S.Ct. at 1771. The resident subsequently brought suit, alleging, in part, that San Francisco violated the ADA “by subduing her in a manner that did not reasonably accommodate her disability.” City & Cnty. of San Francisco v. Sheehan, 135 S.Ct. at 1771. The district court granted summary judgment for the City and County of San Francisco. The United State Court of Appeals for the Ninth Circuit vacated in part, holding that “the ADA's accommodation requirement should be read to ‘to encompass ‘anything a public entity does.'” City & Cnty. of San Francisco v. Sheehan, 743 F.3d, at 1232 (quoting Sheehan v. City & Cnty. of S.F., 743 F.3d 1211, 1232 (9th Cir. 2014)). On writ of certiorari, the City and County of San Francisco asked the Supreme Court to determine whether “the ADA governs the manner in which a qualified individual with a disability is arrested.” City & Cnty. of San Francisco v. Sheehan, 135 S.Ct. at 1773. The Supreme Court declined to resolve the issue, however, because the petitioners did not present the same question below at the Ninth Circuit and because the parties all agreed that the ADA applies to arrests. See City & Cnty. of San Francisco v. Sheehan, 135 S.Ct. at 1772-73. The Supreme Court reasoned that the ADA's applicability to arrests is “an important question that would benefit from briefing and an adversary presentation, ” and that, accordingly, “it would [not] be prudent to decide the question in this case.” City & Cnty. of San Francisco v. Sheehan, 135 S.Ct. at 1772-73.

         The Tenth Circuit, by contrast, has recognized that “a broad rule categorically excluding arrests from the scope of Title II . . . is not the law, ” Gohier v. Enright, 186 F.3d at 1221, but has repeatedly declined to determine the precise scope of the ADA's applicability to arrests. In Gohier v. Enright, the Tenth Circuit reviewed two theories of liability under Title II that other federal courts have applied in the context of arrests: (i) “that police wrongly arrested someone with a disability because they misperceived the effects of that disability as a criminal activity, ” 186 F.3d at 1221-22 (citing Lewis v. Truitt, 960 F.Supp. 175, 176-77 (S.D. Ind. 1997); Jackson v. Inhabitants of Town of Sanford, 1994 U.S. Dist. LEXIS 15367 (D. Me. 1994)); and (ii) that police “failed to reasonably accommodate the person's disability in the course of investigation or arrest, causing the person to suffer greater injury or indignity in that process than other arrestees, ” Gohier v. Enright, 186 F.3d at 1221 (citing Gorman v. Bartch, 152 F.3d 906, 912-13 (8th Cir. 1998); Rosen v. Montgomery County, 121 F.3d 154, 157-58 (4th Cir. 1997); Patrice v. Murphy, 43 F.Supp.2d ...


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