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Lopez v. State

United States District Court, D. New Mexico

March 13, 2017

PHILLIP O. LOPEZ and FELIZ GONZALES, Plaintiffs
v.
THE STATE OF NEW MEXICO, THE CITY OF LAS CRUCES, and OFFICER DAVID RODRIGUEZ and DETECTIVE MICHAEL RICKARDS, in their official and individual capacities as employees of the City of Las Cruces, Defendants.

          MEMORANDUM OPINION AND ORDER

         This matter comes before the Court on the following motions: (i) Plaintiff Feliz Gonzales's Motion for Partial Summary Judgment against Defendants City and Rodriguez (ECF No. 28); (ii) Plaintiff Phillip Lopez's Motion for Partial Summary Judgment against Defendants City and Rodriguez (ECF No. 131); and (iii) Defendants' Motion for Summary Judgment Based on Qualified Immunity and Governmental Immunity (ECF No. 138). The Court, having considered the motions, briefs, evidence, and relevant law, concludes that Plaintiffs' motions will be denied and Defendants' motion will be granted in part and denied in part.

         I. FACTUAL BACKGROUND[1]

         On the evening of January 4, 2015, Officer David Rodriguez was on duty as a police officer for the City of Las Cruces. Defs.' Resp. to Pl. Lopez's Mot. for Summ. J., Undisputed Fact (“UF”) ¶ 1, ECF No. 143. He was dispatched on a non-emergency, non-domestic disturbance call to an address at 624 West Court Road regarding a dispute and threats between neighbors. See Pl. Lopez's Mem., UF ¶ 1, ECF No. 132; Defs.' Resp. to Pl. Lopez's Mot. for Summ. J., UF ¶ 3, ECF No. 143; Pretrial Order, Stipulated Factual Contentions ¶¶ IV(A)(4)-(5), ECF No. 179; Dep. of David Rodriguez 135:3-13, ECF No. 148-1. Dispatch informed Officer Rodriguez that threats occurred in which a neighbor said he was going to kill the other. Dep. of David Rodriguez 126:1-25, ECF No. 143-1.[2] At the time he arrived at the address, Officer Rodriguez did not know who had made the call or who had allegedly made threats. Pl. Lopez's Mem., UF ¶ 2, ECF No. 132.

         When Officer Rodriguez arrived at the scene, he saw a man, who he later learned to be Phillip Lopez, standing in front of the 624 West Court residence. Defs.' Resp. to Pl. Lopez's Mot. for Summ. J., UF ¶ 3, ECF No. 143. At the time he encountered Mr. Lopez, Officer Rodriguez did not know whether Mr. Lopez was involved in the dispute to which he was dispatched. Pl. Lopez's Mem., UF ¶ 3, ECF No. 132.

         The parties dispute what happened next. Officer Rodriguez testified that he saw Mr. Lopez take off running towards the house after he observed Officer Rodriguez. See Dep. of David Rodriguez 127:16-128:22, ECF No. 143-1. Officer Rodriguez considered Mr. Lopez's behavior suspicious because he was in the area of the dispute and fled when seeing law enforcement. See Id. 128:16-129:20.[3] Mr. Lopez testified that, after he saw the police cruiser, he walked quickly to his grandmother's front porch and then to his apartment door where he handed off his dog. See Phillip Lopez Dep. 66:18-67:25, ECF No. 143-2 (responding “Quickly” to question, “How quickly did you hand off - did you take the dog to your - ”).

         Officer Rodriguez decided to investigate, and he drew his gun and came around the house in a circular motion to see if he could see Mr. Lopez from a better angle. See Dep. of David Rodriguez 128:16-130:11, ECF No. 143-1. Officer Rodriguez saw Mr. Lopez in an open doorway with the light on inside the home. Id. 130:8-17. While pulling his gun out and pointing it at Mr. Lopez, Officer Rodriguez commanded Mr. Lopez to put his hands up. Id. 130:8-17, 132:7-133:1; Dep. of Phillip Lopez 68:16-69:2, ECF No. 143-2; Corrected Answer ¶ 8, ECF No. 39; Pretrial Order, Stipulated Fact ¶ IV(A)(9), ECF No. 179.

         The parties dispute what next occurred. According to Mr. Lopez's version, Officer Rodriguez told Mr. Lopez, “Get the fuck over here. Put your hands up, ” at which point Mr. Lopez walked toward Officer Rodriguez and responded, “My hands are in the fucking air.” Dep. of Phillip Lopez 68:16-70:11, ECF No. 143-2. Mr. Lopez asserts that Officer Rodriguez told him to stop, at which point, he removed his jacket, turned around to show him his waistband as he had ordered, and then continued walking toward him. Id. According to Mr. Lopez, he followed Officer Rodriguez's orders to approach, and closed distance to show him that his hands were in the air and to ask what he wanted. Id. 72:15-22.

         According to Officer Rodriguez, he identified himself as a police officer and told Mr. Lopez to put up his hands. See Dep. of David Rodriguez 130:12-131:3, ECF No. 143-1. Mr. Lopez then turned around and said, “Oh, you want to see my hands. I'm not going to show you my fucking hands, ” and he started making non-compliant gestures, throwing his hands around, and walking toward Officer Rodriguez. Id. 131:4-17. Although Mr. Lopez did not verbally threaten Officer Rodriguez, Officer Rodriguez testified that Mr. Lopez advanced towards him while Officer Rodriguez kept telling him to put up his hands, and at one point, Officer Rodriguez told him to stop, and he did not stop. See Id. 131:5-132:14. Instead, Mr. Lopez continued walking toward him and lifted his shirt up, revealing that he did not have a weapon. See Id. 132:7-133:25.

         The parties agree that, around that point in time, Feliz Gonzales came beside Phillip Lopez. Defs.' Mem., UF ¶ 12, ECF No. 139. Officer Rodriguez first heard her and did not know from where she came. Dep. of David Rodriguez, 133:6-134:21, ECF No. 139-1.[4]

         According to Officer Rodriguez, both Ms. Gonzales and Mr. Lopez continued to walk towards him, he told them to stop, and he retreated backwards to the street to create distance. See Id. 133:17-134:5. Once Officer Rodriguez was in the street, he put away his gun and pulled out his Taser. See Id. 133:17-136:22.

         Plaintiffs' version differs. Mr. Lopez avers that he came towards Officer Rodriguez, because Officer Rodriguez commanded that he come here with his hands in the air, so he followed those instructions. Dep. of Phillip Lopez 72:15-22, ECF No. 139-2.

         The parties agree that Mr. Lopez moved in front of Ms. Gonzales when he saw the infrared targeting light of the Taser on her because he believed it was a targeting light from a gun. Defs.' Mem., UF ¶ 13, ECF No. 139. Immediately after Mr. Lopez moved in front of Ms. Gonzales, Officer Rodriguez stunned Mr. Lopez with his Taser. Id. UF ¶ 14. Officer Rodriguez stunned Ms. Gonzales second with the Taser. Id. UF ¶ 15. At that point, both Plaintiffs were simultaneously connected by the Taser prongs to Officer Rodriguez's Taser. Defs.' Resp. to Pl. Gonzales' Mot., UF ¶ 2, ECF No. 41. Ms. Gonzales fell to the ground, where she remained, face down, without moving throughout the incident. See Defs.' Mem. UF ¶ 18, ECF No. 139; Pl. Gonzales' Mot. for Partial Summ. J., UF ¶ 2, ECF No. 29. Ms. Gonzales was closer to Officer Rodriguez than Mr. Lopez was after they were both initially tased. Defs.' Mem., UF ¶ 16, ECF No. 139. Mr. Lopez questioned Officer Rodriguez as to why he tased his wife and demanded that he leave her alone. Corrected Answer ¶ 16, ECF No. 39. The parties also agree that at some point Mr. Lopez attempted to remove his Taser prongs, and did so. Defs.' Mem. for Summ. J., UF ¶ 18, ECF No. 139.

         The parties, however, dispute much of what occurred during the time period in which Officer Rodriguez deployed his Taser. According to Officer Rodriguez, he gave Plaintiffs commands to back up, which they did not follow, which is why he initially shot his Taser at each of them. See Defs.' Ex. C (video); Dep. of David Rodriguez 136:2-12, ECF No. 139-1. He also asserts that he continued to tase Mr. Lopez because he was trying to remove the Taser prongs and stand. See Dep. of David Rodriguez 137:7-13, ECF No. 139-1. Mr. Lopez was never able to get to his feet. Id. 143:13-15. Officer Rodriguez testified that he did not intend to tase Ms. Gonzales after the first Taser shot and did not realize he was sending charges through her until the last time he attempted to tase Mr. Lopez when he was trying to get up. See Id. 139:7-14.[5]

         According to Mr. Lopez, after he was initially tased, he fell to the ground and did not move from a seated position, and he put his arms in the air. See Dep. of Phillip Lopez 77:13-21, ECF No. 139-2. Plaintiffs dispute that Officer Rodriguez did not know that he was tasing Ms. Gonzales because the recorded audio from the video camera reveals screams, crying, and distress from a woman. See Defs.' Ex. C. The electric current going from the Taser to only Ms. Gonzales was visible. Pls.' Resp., UF ¶ I, ECF No. 148 (citing Defs.' Ex. C).

         The parties do not dispute that, during the subsequent Taser discharges, Officer Rodriguez yelled repeatedly to “stay on the ground.” See Defs.' Ex. C. At some point during the Taser incident, the parties agree Mr. Lopez yelled to his neighbor to get his dog. Compare Defs.' Mem. for Summ. J. ¶¶ 19-20, ECF No. 139, with Pls.' Resp. ¶¶ 19-20, ECF No. 148. According to Officer Rodriguez, he knew Mr. Lopez was yelling something to somebody down the street, but he could not hear what Mr. Lopez was saying because he was telling him not to say anything. Dep. of David Rodriguez 141:17-21, ECF No. 139-1. The parties agree that, during this exchange, Officer Rodriguez yelled several times, “Stop talking!” and “Stop talking or I'll tase you again!” Corrected Answer ¶ 18, ECF No. 39. Shortly thereafter, Officer Rodriguez discharged the Taser again. See Defs.' Ex. C.

         The parties agree that Officer Rodriguez sent 10 additional cycles through Ms. Gonzales after the initial incapacitating shot. Pl. Gonzales' Mem., UF ¶ 5, ECF No. 29. Ms. Gonzales suffered injuries as a result of the additional Taser discharges. Id. UF ¶ 6. Both Plaintiffs were arrested that night and went to jail. Defs.' Mem., UF ¶ 23, ECF No. 139.

         The parties dispute the capabilities of the Taser. Defendants presented evidence that the arc button on the X2 Taser that Officer Rodriguez had allows an officer to stun both or only one person. Aff. of David Rodriguez ¶¶ 25-26, ECF No. 41-1. Plaintiff Gonzales disputes this fact, contending that, once the prongs are in two subjects, if the trigger is used to send an arc, it is sent through both subjects simultaneously. Pl. Gonzales's Reply 3, ECF No. 42. In support, Plaintiff relies on portions of the X2 TASER User's Manual and asks the Court to take judicial notice of the Owner's Manual and its accuracy. Id. at 3 n.2. This Court cannot take judicial notice of this fact, because the accuracy of the manual is not “generally known within the trial court's territorial jurisdiction, ” nor can it be “accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201. Because the Manual is hearsay without accompanying sworn testimony stating what it is and its accuracy, the Court cannot consider its contents as facts and will instead consider the Taser capabilities to be disputed.

         On January 3, 2015, the day before the Taser event, Agent Charles Boylston from the New Mexico State Police, after receiving a phone call from Asset Protection Officer Gabe Martinez, started an investigation of a shoplifting by an unknown couple at a Wal-Mart store. Defs.' Mem., UF ¶ 24, ECF No. 139; Dep. of Charles Boylston 40:19-22, ECF No. 160-4. The Wal-Mart shoplifters had a child with them. See Pls.' Resp., UF ¶ Q, ECF No. 148. Agent Boylston, being fairly new to retail investigations, did not know as many people, so he requested the help of Detective Michael Rickards to determine if other officers could identify the suspects. See Dep. of Charles Boylston 41:16-42:22, ECF No. 139-4. Detective Rickards then sent an email with photographs of the couple to all the officers at the Las Cruces Police Department for assistance in identifying them. Defs.' Mem., UF ¶ 25, ECF No. 139.

         Lieutenant Casey Mullins saw a “BOLO” (“Be On the Lookout”) with a photograph of Mr. Lopez that had been sent out for officer safety reasons following the altercation between Plaintiffs and Officer Rodriguez. See Dep. of Casey Mullins 11:19-12:12, 17:24-19:2, 20:14-21:25, ECF No. 163-2. Lieutenant Mullins responded by email to Detective Rickards that the photograph he sent looked like the person in the BOLO. See Dep. of Casey Mullins 11:19-12:12, 18:20-19:2, 20:14-21:25, ECF No. 163-2; Dep. of Michael Rickards 62:5-63:4, ECF No. 139-6; Dep. of David Rodriguez 62:5-11, ECF No. 148-7. Detective Kaycee Thatcher responded by email saying that it looked like the person about which she had just sent an email. Dep. of Michael Rickards 28:18-21, ECF No. 163-1. On January 5, 2015, Transport Officer Alfredo Carbajal transported Plaintiffs from jail to court. Defs.' Mem. UF ¶ 27, ECF No. 139. While in court with Plaintiffs, Officer Carbajal received an email with photographs from Detective Rickards requesting assistance in identifying the couple in the photos. Id. UF ¶ 29.[6] Officer Carbajal reported to Detective Rickards that it looked like Plaintiffs. See Dep. of Alfred Carbajal 8:10-25, ECF No. 139-5.

         On January 5, 2015, Officer Rodriguez completed an Affidavit and Criminal Complaint charging Plaintiff Feliz Gonzales with petty misdemeanor assault on an officer under the Las Cruces Municipal Code. Statement of Facts in Support of Compl., ECF No. 148-4. In the charging documents, after describing the encounter on January 4, 2015, he petitioned the Court to accept the statement facts and charge her “with shoplifting.” Id.

         Around this time, Detective Rickards sent Officer Joshua Milks a photograph of a couple from a Hastings store and asked if he recognized the people. See Pl.'s Resp., UF ¶ N, ECF No. 148; Dep. of Joshua Milks, 14:9-16:17, ECF No. 148-6. Officer Milks had previously met Mr. Lopez and Ms. Gonzales during their booking following their arrests for assaulting a police officer. Dep. of Joshua Milks 4:22-5:6, 8:16-25, ECF No. 163-4. When Officer Milks responded that he could not, Detective Rickards asked if they were Mr. Lopez and Ms. Gonzales, to which Officer Milks answered that they could possibly be, but due to the graininess of the photo, he could not positively identify them. See id.

         On January 6, 2015, around 7:00 p.m., Detective Rickards texted Officer Rodriguez photographs of a couple from the Hastings store. Defs.' Mem., UF ¶ 32, ECF No. 139. At this time, Detective Rickards knew there was some sort of physical altercation between the police and Mr. Lopez and his wife, but he did not know that a Taser had been deployed. Dep. of Michael Rickards 35:16-36:8, ECF No. 160-5.[7] Detective Rickards' text asked, “Recognize these two, ” to which Officer Rodriguez responded by text message, “Looks like Phillip Lopez and Feliz Gonzales.” See Pl.'s Ex. C, ECF No. 104-1 at 6 of 7; Pl.'s Reply, Ex. A 54:21-57:24, ECF No. 118-1; Defs.' Mem., UF ¶ 33, ECF No. 139; Dep. of David Rodriguez 153:9-154:3, ECF No. 163-5. Detective Rickards responded, “Atta baby! That[']s what [I] wanted to hear. Ok [I] thought so but [M]ilks was unsure.” Pl.'s Ex. C, ECF No. 104-1 at 6 of 7. Officer Rodriguez replied, “Yea I don't think I'll forget them after Sunday.” Id. Detective Rickards then texted, “That[']s what i figured. You never forgot someone that you fight with. Never.” Id. He then explained by text that they did a felony shoplifting on Saturday and tried to hit Hastings today. Id. at 7 of 7. Officer Rodriguez replied, “That's good to hear they had nothing but good things to say about the department.” Id. Detective Rickards replied, “I[']ll make sure they get excellent service.” Id.

         Sometime on January 6, 2015, Detective Rickards contacted Agent Boylston and said to stop by his office because he had a picture of his guy and that some officers in his agency may have identified his people. See Dep. of Charles Boylston 43:14-24, ECF No. 139-4, and 60:15-23, ECF No. 163-3; Dep. of Michael Rickards 31:7-24, 36:18-23, ECF No. 160-5, and 63:12-64:8, 65:12-66:18, ECF No. 163-1. When Agent Boylston walked into Detective Rickards' office, Detective Rickards handed him a driver's license photo and said, “This is your guy, ” giving the name of the man in the driver's license photograph as Phillip Lopez. See Dep. of Charles Boyston 43:14-24, ECF No. 139-4.[8] Detective Rickards said that he put out the photograph of Mr. Lopez to the uniform side of LCPD, and somebody came back and said that is Phillip Lopez. Id. 60:15-23, ECF No. 163-3. Detective Rickards also gave him Ms. Gonzales' driver's license photograph. Id. 51:17-52:9. Agent Boylston then made his own independent comparison of the photographs of both Mr. Lopez and Ms. Gonzales. See Id. 49:1-18 & 59:20-25.

         Agent Boylston met with Officer Gabe Martinez and showed him the driver's license photograph of Mr. Lopez, to which Officer Martinez responded, “Yep, that's our guy.” Dep. of Charles Boylston 45:4-21, 49:1-18, ECF No. 163-3. Agent Boylston and Officer Martinez reviewed the Wal-Mart store's surveillance video and still photographs from different shots and angles of the shoplifters, totaling up the cost of the stolen merchandise and determining that the amount rose to the felony level. See Id. 45:4-46:5. Based on his own examination of the photographs, Agent Boylston believed that the photographs of Plaintiffs looked like the Wal-Mart shoplifting suspects. See Id. 51:17-52:9, 59:20-25.

         On January 9, 2015, Agent Boylston prepared Affidavits for Arrest Warrants for Plaintiffs. Affs. for Arrest Warrant, ECF No. 52-1 at 1-4 of 19. He discussed the information with his sergeant and spoke with the District Attorney's office, which approved his affidavits. Dep. of Charles Boylston 57:15-58:5, ECF No. 163-3. Agent Boylston also spoke with the magistrate court judge. Id. Agent Boylston filed the criminal charges against Plaintiffs, and a magistrate judge signed the warrants for arrest and the criminal complaints. See Warrants for Arrest, ECF No. 163-6; Criminal Compl., ECF No. 163-7. The Affidavits for Arrest Warrant for each Plaintiff are virtually identical and state:

On Saturday, January 3, 2015, I was contacted by Walmart Asset Protection Officer Gabriel Martinez located at the Walmart on Valley Drive. Below is the following information your affiant learned from Asset Protection Officer (APO) Gabriel Martinez.
APO Martinez said on [January 3, 2015] at about 2:30 p.m. he was inside the apprehension office of Walmart. He said [he] heard the alarm sensor go off by the office and he looked out of the door…He said the male subject was pushing a shopping cart with electronic items….
He said he checked the surveillance video of the electronic section and observed the male subject select electronic items and then walked out of the store without paying for the merchandise.
I informed APO Martinez, to send out a picture of the subject to Las Cruces Police Detective Mike Rickards and myself. A short time later, I received a text message of the subject who took the merchandise. I then informed APO Martinez, when I returned to work, I would stop by the store and review the video of the incident. This concluded the telephone conversation with APO Martinez.
Upon our review, we observed Phillip Lopez enter the Walmart at approximately 2:03 p.m. with a female Feliz Gonzales and a small male child….

         Affs. For Arrest Warrant, ECF No. 163-6. In the remainder of the Affidavits, Agent Boylston describes what occurred in the video, using Phillip Lopez's name wherever he describes what the man in the surveillance video did and using Feliz Gonzales' name to describe whatever the woman in the video did. See id.

         Plaintiffs were arrested for the shoplifting at the Walmart. Defs.' Mem., UF ¶ 36, ECF No. 139. Officer Rodriguez voluntarily accompanied two other officers who arrested Mr. Lopez for the shoplifting. Pls.' Resp., UF ¶ T, ECF No. 148; Dep. of David Rodriguez 69:6-9, ECF No. 163. During that arrest, Officer Rodriguez defended his actions regarding the Taser discharges to another officer. Pls.' Resp., UF ¶ U, ECF No. 148. At that time, Officer Rodriguez was not concerned that he had misidentified Plaintiffs. Dep. of David Rodriguez 79:3-14, ECF No. 163-5. Officer Rodriguez, having reexamined the photographs since the incident, believes the photographs still kind of look like Mr. Lopez, but he now sees differences. See Dep. of David Rodriguez, 45:19-47:7, 59:23-60:6, 63:3-9, 79:3-14, ECF No. 148-7.

         Agent Boylston later discovered that he did not have sufficient evidence to hold Plaintiffs and contacted the District Attorney's Office to get the cases dismissed. See Dep. of Charles Boylston 75:2-5, ECF No. 170-1. On January 15, 2015, the Third Judicial District Attorney's Office filed nolle prosequis, dismissing without prejudice the shoplifting charges against Plaintiffs. See Nolle Prosequis, ECF No. 163-8.

         II. PROCEDURAL HISTORY

         Plaintiffs brought an eight-count civil suit against Officer Rodriguez, Detective Rickards, and the City. Plaintiffs assert federal claims for excessive force and malicious prosecution, as well as state law claims for assault, battery, false arrest and imprisonment, and malicious abuse of process.

         On February 16, 2016, Plaintiff Feliz Gonzales filed a Motion for Partial Summary Judgment against Defendants City of Las Cruces and Officer Rodriguez (ECF No. 28), seeking an order granting summary judgment to her as to liability on Count III against the City and Officer Rodriguez for battery under the New Mexico Tort Claims Act (“NMTCA”), N.M. Stat. Ann. § 41-4-12, and on Count VII against Officer Rodriguez for excessive force under the Fourth Amendment. The initial Taser discharge is not at issue in her motion. Instead, Plaintiff Gonzales argues that, after she was incapacitated on the ground, the second through eleventh Taser discharges constituted an unreasonable, excessive use of force because she posed no threat. On October 11, 2016, Plaintiff Phillip Lopez filed a motion for partial summary judgment (ECF No. 131), seeking summary judgment in his favor as to liability on Count I against the City and Officer Rodriguez for assault under the NMTCA, and as to Count VI for excessive force under the Fourth Amendment, based on Officer Rodriguez pointing a gun at him.

         After Plaintiffs moved for partial summary judgment, Defendants filed a motion for summary judgment on all counts and asserted qualified immunity. See Def.'s Mem. in Supp. of Mot. for Summ. J., ECF No. 139. The parties have thus filed cross motions for summary judgment as to Counts I, III, VI, and VII. The Court will address the federal claims first before turning to the state claims.

         III. STANDARD

         On a motion for summary judgment, the moving party initially bears the burden of showing that no genuine issue of material fact exists. Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033, 1036 (10th Cir. 1993). Once the moving party meets its burden, the nonmoving party must show that genuine issues remain for trial. Id. The nonmoving party must go beyond the pleadings and by its own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “All facts and reasonable inferences must be construed in the light most favorable to the nonmoving party.” Quaker State Minit-Lube, Inc. v. Fireman's Fund Ins. Co., 52 F.3d 1522, 1527 (10th Cir. 1995) (internal quotations omitted). Under Rule 56(c), only disputes of facts that might affect the outcome of the case will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. See Id. at 248.

         In order to defeat a qualified immunity defense, the plaintiff must both “demonstrate that the defendant's actions violated a constitutional or statutory right” and “show that the constitutional or statutory rights the defendant allegedly violated were clearly established at the time of the conduct at issue.” Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008). A court may exercise its discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the case before it. Pearson v. Callahan, 555 U.S. 223, 236 (2009). For a right to be clearly established under the second prong, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). A plaintiff can demonstrate that a constitutional right is clearly established by references to on-point cases from the Supreme Court, the Tenth Circuit, or the clearly established weight of authority from other circuits. Archuleta, 523 F.3d at 1283.

         On summary judgment, the court must consider the evidence in the light most favorable to the plaintiff when conducting the qualified immunity analysis. Behrens v. Pelletier, 516 U.S. 299, 309 (1996). If the plaintiff carries his burden on qualified immunity, the burden shifts to the defendant to show that there are no genuine factual issues and he is entitled to judgment as a matter of law. Albright, 51 F.3d at 1535.

         IV. ANALYSIS

         A. Federal Excessive Force Claims Subject to Cross-Motions ...


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