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Smith v. City of Roswell

United States District Court, D. New Mexico

May 25, 2017

RACHAEL SMITH, as next friend and mother of, SEBASTIAN TOWLER, ETHAN TOWLER, and JESSIE TOWLER, and CHARLIE NELMS, as next friend and mother of NOAH TOWLER-NELMS and SHERRIE TOWLER, individually, and KRISTINA MARTINEZ, as Personal Representative of the estate of CODY TOWLER, Plaintiffs,
v.
CITY OF ROSWELL, a New Mexico municipality, PHILLIP SMITH, JONATHON KELTON, JORGE ARROYO-JAMIE and DYLAN THOMAS, individually and as agents and employees of the City of Roswell, Defendants.

          MEMORANDUM OPINION AND ORDER

         This matter is before the Court on Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint and/or Motion for Summary Judgment on the Grounds of Qualified Immunity and Protections Afforded under the New Mexico Torts Claims Act, and Memorandum of Law in Support Therefore, filed November 12, 2015. (Doc. 5). Plaintiffs filed a response to the motion on December 15, 2015, and Defendants filed a reply on January 22, 2016. (Docs. 19 & 23). Having reviewed the motion, the accompanying briefs, and relevant law, the Court GRANTS IN PART AND DENIES IN PART Defendants' motion. I. Background This is a police excessive force case arising from an incident in which Defendants Roswell Police Officers Jonathon Kelton, Jorge Arroyo-Jaime, and Dylan Thomas (together, the “officers”) Tased and ultimately caused the death of Cody Towler (“Mr. Towler”). Plaintiffs originally filed this case on October 29, 2014, in the Fifth Judicial District Court, County of Chaves, New Mexico. (Doc. 1-2). Defendants removed the case to this Court on November 5, 2015. (Doc. 1).

         Prior to Defendants removing the case, Plaintiffs filed a Second Amended Complaint for Wrongful Death and Damages and Liability under the Tort Claims Act, and for Violations of Civil Rights (“Second Amended Complaint”) in the Fifth Judicial District Court on October 27, 2015. (Doc. 1-51). The Second Amended Complaint alleges six counts. In Counts I through IV, Plaintiffs bring New Mexico Tort Claims Act (“NMTCA”) claims against the officers for negligence, assault and battery, res ipsa loquitur, and a spoliation claim. Id. at 5-8. In Count I, Plaintiffs further allege that Defendants City of Roswell and Phillip Smith (“Officer Smith”), in his official capacity as the Chief of Police, negligently hired, trained, and supervised Defendants Kelton, Arroyo-Jaime, and Thomas. In Count V, Plaintiffs allege loss of consortium in violation of 42 U.S.C. § 1983 Fourth and Fourteenth Amendments. Id. at 8-9. Finally, in Count VI, Plaintiffs bring 42 U.S.C. § 1983 Fourth and Fourteenth Amendment claims for unreasonable search, excessive force, and failure to provide medical care against Defendants Kelton, Arroyo-Jaime, and Thomas and a corresponding municipal liability claim against Defendants the City of Roswell and Officer Smith. Id. at 9-14.

         Defendants now move to dismiss the Second Amended Complaint, or, in the alternative, for summary judgment on all claims. The officers raise a qualified immunity defense with respect to the Section 1983 claims. Further, the officers argue that they are statutorily immune from the NMTCA state law claims. Plaintiffs oppose the motion in its entirety.

         II. Standard of Review

         Because the Court will examine exhibits outside the Second Amended Complaint in addressing the merits of Defendants' motion, it is appropriate that the Court use a summary judgment standard of review in its analysis. See Fed. R. Civ. P. 12(d) (if a party presents the court with “matters outside the pleading” and the court does not exclude those matters, then “the motion must be treated as one for summary judgment under Rule 56.”).

         Summary judgment is appropriate if the moving party shows “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). Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the burden shifts to the nonmoving party to set forth specific facts showing that there is a genuine issue for trial. See Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 767 (10th Cir. 2013). A dispute over a material fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court views the facts in the light most favorable to the nonmoving party and draws all reasonable inferences in the nonmoving party's favor. Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013).

         When a defendant moves for summary judgment on the basis of a qualified immunity defense, the Court “still view[s] the facts in the light most favorable to the non-moving party and resolve[s] all factual disputes and reasonable inferences in its favor.” Estate of Booker v. Gomez, 745 F.3d 405, 411(10th Cir. 2014). Unlike other affirmative defenses, the plaintiff bears the burden of overcoming the defense of qualified immunity. Id. “This is a heavy burden.” Carabajal v. City of Cheyenne, Wyoming, 847 F.3d 1203, 1208 (10th Cir. 2017).

         At the summary judgment stage, the Court “must grant qualified immunity unless the plaintiff can show (1) a reasonable jury could find facts supporting a violation of a constitutional right, which (2) was clearly established at the time of the defendant's conduct.” Estate of Booker, 745 F.3d at 411. The Court may in its discretion decide which of the two-parts of the qualified immunity test to address first. Id. at 412.

         “[I]n 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.” Medina v. City and Cty. of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992). As the Tenth Circuit recently clarified:

“A clearly established right is one that is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.'” Although plaintiffs can overcome a qualified-immunity defense without a favorable case directly on point, “existing precedent must have placed the statutory or constitutional question ‘beyond debate.'” “The dispositive question is ‘whether the violative nature of the particular conduct is clearly established.'” In the Fourth Amendment context, “the result depends very much on the facts of each case, ” and the precedents must “squarely govern” the present case. “[Q]ualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.'”

Garcia v. Escalante, 2017 WL 443610, at *4 (10th Cir.) (quoting Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir. 2016) (citations omitted)). The United States Supreme Court has “emphasized that the clearly-established inquiry ‘must be undertaken in light of the specific context of the case, not as a broad general proposition.'” Id. (quoting Mullenix v. Luna, 577 U.S. __, 136 S.Ct. 305, 308 (2015)). On the other hand, “[t]he law is also clearly established if the conduct is so obviously improper that any reasonable officer would know it was illegal.” Id. (quoting Callahan v. Unified Gov't of Wyandotte Cty., 806 F.3d 1022, 1027 (10th Cir. 2015)).

         Whether a defendant's conduct is objectively reasonable is a legal question, but a factual question may arise when there is a dispute regarding the historical facts material to the objectively reasonable issue. Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1251 (10th Cir. 2003) (holding that objective legal reasonableness of officer's actions is legal question whereas “where the ‘historical facts material to [that] issue are in dispute [there] ... [is] an issue for the jury.'” (citation omitted)). As the Tenth Circuit Court of Appeals instructs,

[i]f the plaintiff does not satisfy either portion of the two-pronged test, the Court must grant the defendant qualified immunity. If the plaintiff indeed demonstrates that the official violated a clearly established constitutional or statutory right, then the burden shifts back to the defendant, who must prove that “no genuine issues of material fact” exist and that the defendant “is entitled to judgment as a matter of law.” In the end, therefore, the defendant still bears the normal summary judgment burden of showing that no material facts remain in dispute that would defeat the qualified immunity defense. When the record shows an unresolved dispute of historical fact relevant to this immunity analysis, a motion for summary judgment based on qualified immunity should be “properly denied.”

Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002) (citations omitted).

         III. Facts and Reasonable Inferences Viewed in the Light Most Favorable to Plaintiffs[1]

         On February 4, 2013, at approximately 2:00 a.m., Mr. Towler was in the area of South Union, West Buena Vista Drive and Ridgecrest, in Roswell, New Mexico. (Doc. 1-51) at ¶ 13. Officers from the Roswell Police Department (“RPD”) were dispatched to Mr. Towler's location on a complaint of a disorderly person and a possible fight. (Doc. 5-1) at 132:17-21; (Doc. 5-2) at 167:22-168:4. Defendant Officer Thomas arrived on the scene first, identified himself as an RPD officer, and asked Mr. Towler to speak to him. (Doc. 5-1) at 146:9-12. Mr. Towler turned to face Officer Thomas, deployed an asp baton, and then turned and walked away from Officer Thomas. Id. at 146:15-147:2. As Mr. Towler walked away, he was yelling, screaming, hitting objects with his baton, and not listening to Officer Thomas' commands. Id. at 150:17-25.

         Defendant Officer Kelton arrived on the scene after Officer Thomas, at which point Mr. Towler was walking away from the officers and into an alleyway. (Doc. 5-1) at 154:18-20; (Doc. 19-3) at 180:19-22. Officers Thomas and Kelton waited a minute and then followed Mr. Towler into the alley. Id. at 190:4-12. According to Officer Thomas, Mr. Towler was ahead of the officers by approximately 30 yards and would periodically turn around and take several steps towards the officers and then turn back and continue walking down the alley. (Doc. 19-1) at 183:6-13. Officer Kelton described the steps as “quick and deliberate.”[2] (Doc. 5-2) at 209:7-18. During this time, Mr. Towler continued to yell, wave his baton, and ignore the commands of the officers to stop and drop the baton. Id. at 205:9-11; (Doc. 19-1) at 186:5-11.

         Eventually, Mr. Towler turned around and charged the officers.[3] (Doc. 5-2) at 205:21-24. Officer Kelton explained that this charge was different than the other advancements because “[i]t was with ferocity.” Id. at 209:1. It is not clear from the officers' depositions where in the alley this charge took place because Officer Kelton's statements were not consistent and conflicted with Officer Arroyo-Jaime's statements as to Mr. Towler's final location. Compare (Doc. 19-3) at 210:17-212:25, 294:9-295:6; with (Doc. 19-4) at 149:11-18; and (Doc. 19-6) at 4. When Mr. Towler was 5 yards away from the officers and running towards them, Officer Kelton deployed his Taser.[4] (Doc. 5-2) at 214:7-14. The prongs from the Taser struck Mr. Towler in his chest, Officer Kelton described Mr. Towler as falling to his hands and knees and dropping his baton. (Doc. 19-3) at 215:1-18. Officer Thomas stated that because Mr. Towler was running at the officers, he was unable to brace himself and fell down hard when hit by the Taser prongs. (Doc. 19-2) at 4. From this point forward, Mr. Towler did not have his baton and was unarmed. (Doc. 19-3) at 215:9-22, 217:7-9.

         The Taser seemed to slow down Mr. Towler initially, but he began to get back on his feet during the 5 second Taser cycle.[5] Id. at 215:1-2, 216:14-18, 218:22-25. The two officers were giving Mr. Towler commands to stop resisting, but Mr. Towler began to pick up handfuls of rocks and tried to throw them at the officers.[6] (Doc. 5-1) at 192:11-193:4. Mr. Towler was Tased a second time when Officer Thomas deployed his Taser approximately six seconds after Officer Kelton. (Doc. 19-3) at 219:16-21. This second Tasing “hampered” Mr. Towler, but did not subdue him.[7] Id. at 220:10-25. Officer Thomas' Taser prongs hit Mr. Towler in the chest and on the top of his head. (Doc. 19-1) at 199:19-200:22. Officer Thomas explained that the prong hit Mr. Towler on the top of the head because Mr. Towler was reaching down to pick up rocks. Id. Officer Thomas and Officer Kelton next ran Taser cycles together. Id. at 221:8-10. Officer Kelton described these Tasings as more effective, but stated that Mr. Towler continued to resist and tried to rip the Taser cords off.[8] Id. at 221:11-18. At this point, Mr. Towler had been Tased four times, two times each by Officers Thomas and Kelton.

         Officer Kelton admits to running at least one more cycle of his Taser, which he states was not effective. (Doc. 19-3) at 224:24-225:12. However, the Taser logs for Officer Kelton show that he ran six five-second Taser cycles in total; therefore, he must have run four more Taser cycles at this point. (Doc. 19-7) at 6. After running his last Taser cycle, Officer Kelton holstered his Taser because he did not believe it was having enough effect and drew his firearm. Id. at 224:7-10, 227:6-10.

         Soon thereafter, Defendant Officer Arroyo-Jaime arrived in the alley, heard Tasers being deployed, and saw Mr. Towler on his knees, flailing, and throwing rocks in the air.[9] (Doc. 19-4) at 171:12-15, 173:17-19. Officer Arroyo-Jaime observed what was happening for 30 seconds to one minute, after which he Tased Mr. Towler himself. (Doc. 5-1) at 209:21-23; (Doc. 5-3) at 187:16-18; (Doc. 19-4) at 183:19-22. Although Officer Arroyo-Jaime stated that he Tased Mr. Towler because he did not believe Officer Thomas' Taser was having any effect on Mr. Towler, Mr. Towler was on his knees and screaming, but not “making any sense.” (Doc. 5-3) at 187:19- 23; (Doc. 19-4) at 182: 15-23, 188:13-15. Officer Thomas stated that Officer Arroyo-Jaime Tased Mr. Towler in the back.[10] (Doc. 19-3) at 232:9-11.

         The officers stated that the Tasing was effective at this point and Mr. Towler dropped to the ground on his stomach and he was incapacitated immediately. (Doc. 5-1) at 209:23-25; (Doc. 19-3) at 241:18-23; (Doc. 23-4) at 191:21-192:14. Officer Thomas stated that this Tasing was immediately effective and was more effective than the last Tasings. (Doc. 19-3) at 236:14-17. However, Officer Arroyo-Jaime Tased Mr. Towler a second time, this deployment was simultaneous with a Taser deployment by Officer Thomas.[11] Id. at 239:14-17. In total, Officer Arroyo-Jaime Tased Mr. Towler four times and Officer Thomas Tased Mr. Towler five times. (Doc. 19-7) at 1-4. Mr. Towler was therefore Tased 15 times by Officers Kelton, Thomas, and Arroyo-Jaime.[12]

         After Officer Arroyo-Jaime ran his last Taser cycle, Officer Kelton was able to pull Mr. Towler's left arm behind his back and cuff it. (Doc. 5-1) at 209:25-210:1. Officer Arroyo-Jaime stated that Officer Kelton was able to cuff Mr. Towler's left arm easily without any “pain compliance.”[13] (Doc. 19-4) at 193:12-22; 194:9-13. (Doc. 19-3) at 245:16-19. Even so, Officer Kelton testified that Officer Arroyo-Jaime used pain compliance to help Officer Kelton with Mr. Towler's left arm by striking Mr. Towler's thighs with his baton. (Doc. 19-3) at 255:19-256:18. After securing Mr. Towler's left arm, Officer Thomas kicked Mr. Towler's shoulder or upper arm between 5 and 10 times with his boot and Officer Arroyo-Jaime kicked Mr. Towler's lower, right torso and struck his thigh twice with a baton to free Mr. Towler's right arm from under his body. (Doc. 5-1) at 210:13-20; (Doc. 19-3) at 253:1-25; (Doc. 19-4) at 193:23-194:8. Officer Arroyo-Jaime stated that the officers did not try to free Mr. Towler's right arm in another way before using pain compliance. (Doc. 19-4) at 196:20-198:9.

         Once the officers handcuffed Mr. Towler, Officer Arroyo-Jaime stated that he continued to move and fight, so the officer sat on Mr. Towler's legs to hold him down. (Doc. 5-3) at 205:6-10). Officer Burkowski, sat on Mr. Towler's feet and Officer Arroyo-Jaime detailed that Officer Kelton was sitting on top of Mr. Towler.[14] (Doc. 5-2) at 4-18; (Doc. 19-4) at 209:10-19. The sergeant on duty, Sergeant Sharpe, indicated that he saw between 3 and 5 officers on top of Mr. Towler when he arrived at the scene. (Doc. 19-8) at 2. At some point, Officer Arroyo-Jaime felt Mr. Towler kick his back, so he asked another officer, Officer McKinnon, to shackle Mr.

         Towler's legs. (Doc. 19-3) at 205:11-16. Officer Arroyo-Jaime stated that Mr. Towler calmed down after his legs were shackled. Id.

         Officer Kelton stated that he and Officer Arroyo-Jaime were sitting on Mr. Towler's legs when Sergeant Sharpe radioed that Mr. Towler was in custody, which occurred at 2:12:37 a.m.[15](Doc. 19-3) at 252:1-12; (Doc. 19-4) at 213:28-23. At 2:17:04 a.m., Sergeant Sharpe called for an ambulance, which is standard after Tasers are used on an individual, and told the officers to get off of Mr. Towler. (Doc. 5-2) at 269: 10-17; (Doc. 19-3) at 264:1-9. When the officers got off Mr. Towler, he remained lying face down. (Doc. 19-4) at 222:7-8.

         At 2:18:56 a.m., the officers saw that there was a problem with Mr. Towler and called a code three for an emergency. (Doc. 5-2) at 269:21-25. The officers rolled Mr. Towler to his side and checked his pulse and pupils and found that Mr. Towler was not breathing. (Doc. 23-2) at 268:6-10. At 2:21:30 a.m., the officers reported starting CPR.[16] (Doc. 19-3) at 44:20-25, 272:13-16. The officers did not have face masks, so they did not perform mouth-to-mouth CPR, but they did perform multiple rounds of chest compressions. (Doc. 23-2) at 39:12-40:5, 273:4-8. Mr. Towler was pronounced deceased on February 4, 2013. (Doc. 1-51) at ¶ 9.

         Photographs from the scene show Mr. Towler had facial lacerations. (Doc. 19-10). Officer Arroyo-Jaime testified that Mr. Towler did not have the facial lacerations when Officer Arroyo-Jaime arrived at the scene. (Doc. 19-4) at 186:11-18. He stated that the facial lacerations more than likely occurred when the officers were subduing Mr. Towler and acknowledged that the injuries could have been caused by Mr. Towler's face being rubbed against the gravel on the ground. Id. at 186:19-22, 218:1-9.

         In terms of training, Officer Kelton stated that he was trained to give pauses between Taser deployments and to minimize the number of deployments. (Doc. 19-3) at 240:21-241:2, 281:3-17. Officer Arroyo-Jaime admitted that he learned that it was important to limit the number and duration of Tasings and that arrestees should be placed in a seated position to avoid positional asphyxiation. (Doc. 19-4) at 249:18-24, 244:23-245:2. IV. Discussion Defendants moved for summary judgment on all of Plaintiffs' claims under Section 1983 and the NMTCA. The Court will address each in turn.

         A. Count VI: Section 1983 Fourth and Fourteenth Amendment Claims Against the Defendants

         Plaintiffs bring unreasonable search, excessive force, and failure to provide medical care claims under both the Fourth and the Fourteenth Amendments. (Doc. 1-51) at 11-13. Before discussing the claims, the Court will review which Amendment is proper for Plaintiffs' unreasonable seizure and excessive force claims.

         1. Which Amendment Covers Unreasonable Seizure and Excessive Force Claims

         a. Unreasonable Seizure Claims

         It is well-established that if “a particular [Constitutional] Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of [Fourteenth Amendment] substantive due process, must be the guide for analyzing these claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994) (internal quotation marks omitted). In the context of unlawful seizures, the Fourth Amendment is the appropriate Amendment to apply when the government behavior at issue “lead[s] up to and include[es] an arrest of a citizen previously at liberty . . . .” Porro v. Barnes, 624 F.3d 1322, 1325 (10th Cir. 2010). That is the case here and so the applicable Amendment is the Fourth Amendment and not the Fourteenth Amendment. Therefore, the Court will dismiss the Fourteenth Amendment unreasonable seizure claims with prejudice.

         b. Excessive Force Claims

         The Fourth Amendment is also the appropriate Amendment to apply when one contends that the government used excessive force in the arrest of a citizen. Id. Moreover, the Fourth Amendment governs when an officer uses excessive force after the warrantless arrest of a person but prior to that person being “brought before a judicial officer for a determination of probable cause to arrest.” See Frohmader v. Wayne, 958 F.2d 1024, 1026 (10th Cir. 1992). In this case, the applicable Amendment is the Fourth Amendment, not the Fourteenth Amendment. The Court will, therefore, dismiss the Fourteenth Amendment excessive force claims with prejudice. 2. Fourth Amendment Unreasonable Seizure Claims a. Law of Unreasonable Seizure “A police officer violates an arrestee's clearly established Fourth Amendment right to be free of unreasonable seizure if the officer makes a warrantless arrest without probable cause.” Olsen, 312 F.3d at 1312 (citing Tennessee v. Garner, 471 U.S. 1, 7 (1985)). “Probable cause exists if facts and circumstances within the arresting officer's knowledge and of which he or she has reasonably trustworthy information are sufficient to lead a prudent person to believe that the arrestee has committed or is committing an offense.” Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir. 1995) (internal quotation marks and citations omitted). “When a warrantless arrest is the subject of a [Section] 1983 action, the defendant arresting officer is entitled to immunity if a reasonable officer could have believed that probable cause existed to arrest the plaintiff.” Id.

         However,

[w]hen there are unresolved disputes of historical fact relevant to whether the officer had probable cause and to what information he possessed-and thus to whether he may properly claim qualified immunity, a court may not grant summary judgment based on qualified immunity because the officer would not have shown that no genuine dispute exists as to material fact.

Olsen, 312 F.3d at 1312-13.

         Under Fourth Amendment law, there are “three categories of police-citizen encounters: consensual encounters, investigative stops, and arrests.” Morris v. Noe, 672 F.3d 1185, 1191 (10th Cir. 2012). The issue in this case is whether seizing Mr. Towler was justified as an investigative detention, a Terry stop. An officer justifiably conducts a Terry stop when the officer has a reasonable, articulable suspicion that a crime is being committed. Id. (citing United States v. Sokolow, 490 U.S. 1, 7 (1989)). “A detention ceases to be a Terry stop and becomes an arrest if it continues for an excessive time or closely resembles a traditional arrest.” Id. at 1192 (citing Hiibel v. Sixth Judicial Dist. Ct. of Nev., 542 U.S. 177, 186 (2004)). Although the Tenth Circuit has held that the use of handcuffs generally exceeds the scope of a Terry stop, the Tenth Circuit has approved “takedowns” and handcuffing during Terry stops to “maintain the status quo” or “to protect [officers'] personal safety, ” if “the circumstances reasonably warrant such measures.” United States v. Melendez-Garcia, 28 F.3d 1046, 1051-52 (10th Cir. 1994).

         b. Whether the Officers are Entitled to Qualified Immunity on Plaintiffs' Section 1983 Claims for Unreasonable Seizure

         Defendants argue that the officers had reasonable suspicion sufficient to stop Mr. Towler and probable cause to subsequently arrest him. (Doc. 5) at 13. The officers contend that when they arrived on the scene, Officer Thomas announced himself as RPD and asked to speak to Mr.

         Towler. Id. at 14. Mr. Towler responded by turning to face Officer Thomas, deploying a baton, and then turning around and walking away from Officer Thomas while screaming and hitting objects with his baton. Id. The Officers maintain that they did not arrest Mr. Towler until after he charged at them while holding the baton. Id.

         Plaintiffs state that the officers did not have probable cause to arrest Mr. Towler. (Doc. 19) at 35. Plaintiffs admit that “[i]f the jury concludes that Mr. Towler charged the officers without provocation, obviously, probable cause for his arrest existed.” Id. However, Plaintiffs maintain that they are “entitled to the inference” that the officers deployed their Tasers at Mr. Towler's back and the back of his head in order to stop Mr. Towler as he was walking away from them. Id.

         The officers arrived on the scene after a call regarding a disorderly person and a possible fighting. As described above, when Officer Thomas encountered Mr. Towler at the scene and announced he was from the RPD, Mr. Towler faced Officer Thomas, deployed a baton, then turned around and walked away screaming and hitting objects with his baton. Mr. Towler refused to obey the officers' instructions or identify himself to the officers. Consequently, Officer Thomas could reasonably conclude that a crime was being committed, specifically concealing one's identity, a petty misdemeanor in New Mexico. See NMSA 1978, ยง 30-22-3 (Repl. Pamp. 2004). Based on these facts, the officers were justified in trying to detain ...


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