United States District Court, D. New Mexico
PHILLIP O. LOPEZ and FELIZ GONZALES, Plaintiffs
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
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.
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. 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.
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.
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. 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 - ”).
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.
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.
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.
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.
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
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.
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.
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.
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).
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.
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.
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
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.
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. Officer Carbajal reported to Detective
Rickards that it looked like Plaintiffs. See Dep. of
Alfred Carbajal 8:10-25, ECF No. 139-5.
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
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.
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. 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
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. 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.
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.
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)
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
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….
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.
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.
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.
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.
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.
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.
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.
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.
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.
Federal Excessive Force Claims Subject to Cross-Motions ...