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Tenorio v. Pitzer

United States District Court, D. New Mexico

September 25, 2017

RUSSELL TENORIO, Plaintiff,
v.
BRIAN PITZER, RAYMOND D. SCHULTZ, and THE CITY OF ALBUQUERQUE, Defendants.

          MEMORANDUM OPINION AND ORDER

          M. CHRISTINA ARMIJO, CHIEF UNITED STATES DISTRICT JUDGE

         This case is before the Court upon Defendant City of Albuquerque's Motion for Summary Judgment [Doc. 158]. The Court has considered the written submissions of the parties, the record in this case and the applicable law, and is otherwise fully advised.

         Summary Judgment Standards

         Rule 56(a) of the Federal Rules of Civil Procedure provides that “[a] party may move for summary judgment, identifying each claim . . . on which summary judgment is sought.” As our Court of Appeals has succinctly stated:

Summary judgment is appropriate only if there is no genuine issue as to any material fact and . . .the moving party is entitled to a judgment as a matter of law. A fact is material if, under the governing law, it could have an effect on the outcome of the lawsuit. A dispute over a material fact is genuine if a rational jury could find in favor of the nonmoving party on the evidence presented.

Adamson v. Multi Community Diversified Serv., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008).

         Procedural Posture

         This case was consolidated with a related case, Civ. No. 13-00574 MCA/KMB. As of the date of this Memorandum Opinion and Order all claims against all Defendants in these consolidated cases have been dismissed with the exception Count I (against Defendant Pitzer) and Count II (against Defendant City of Albuquerque) in Civ. No. 12-1295. The Court previously determined that Plaintiff has come forward with evidence that would permit a reasonable jury to find in Plaintiff's favor as to Plaintiff's claim that Officer Pitzer subjected Plaintiff to constitutionally unreasonable force, under two alternative theories (Count I). [Doc. 121] Plaintiff's municipal liability claim against the City (Count II) is the subject of the instant motion.

         Background

         The evidence on which the Court relied in denying Defendant Pitzer qualified immunity is summarized in the Court's May 28, 2014, Memorandum Opinion and Order [Doc. 121 at 3-6] and will not be repeated. The sufficiency of that evidence to establish genuine issues of material fact as to the unreasonableness of Officer Pitzer's use of deadly force is the law of the case. Tenorio v. Pitzer, 802 F.3d 1160 (10th Cir. 2015) (upholding denial of summary judgment on qualified immunity).

         In September 2010, the City commissioned the Police Executive Research Forum (PERF) to conduct an examination of “the conditions that may be associated with what seems to be a high rate of police-suspect encounters that involve the use of force by Albuquerque police officers.” PERF issued its report on June 23, 2011. PERF concluded that “although officer-involved shootings recently have increased, both violent crimes and assaults on officers have been on a downward trend.” PERF noted that despite various measures taken by the Albuquerque Police Department (APD), “the recent spate of officer-involved shooting events continues.”

         On July 19, 2016, the Court ruled that, pursuant to Fed. Evid. Rule 803(8), a report prepared by the United States Department of Justice (DOJ), Civil Rights Division, is admissible for purposes of Fed.R.Civ.P. 56(c)(1). [Doc. 155 at 2] The DOJ report[1]includes the following findings:

1. Longstanding deficiencies have allowed a culture of indifference to constitutional policing to ...

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