United States District Court, D. New Mexico
ESTHER VERA, as personal representative of MANUEL FLORES, deceased, Plaintiff,
SAMUEL RODRIGUEZ, in his individual capacity, BOARD OF COUNTY COMMISSIONERS OF BERNALILLO COUNTY, and DAN HOUSTON, in his individual and official capacities as Bernalillo County Sheriff, Defendants.
MEMORANDUM OPINION AND ORDER
MATTER is before the Court on Defendants' Motion for
Partial Summary Judgment No. I: Dismissal of Plaintiff's
Fourth Amendment Excessive Force Claim (Doc. 69), Motion for
Partial Summary Judgment No. II: Dismissal of Plaintiff's
State Law Claims Against Defendant Rodriguez (No. 68), Motion
for Partial Summary Judgment No. III: Dismissal of
Plaintiff's Municipal Liability (Policies, Customs,
Patterns, and Practices), Failure to Train, and Supervisory
Liability Claims (Doc. 75). Having reviewed the Motions, the
briefing, the relevant law and evidence in the record, and
otherwise being fully advised, the Court concludes that
Defendants' Motions shall be GRANTED.
where otherwise noted, the following are the undisputed
facts. On August 4, 2013, at 6:04 p.m., Deputy Samuel
Rodriguez of the Bernalillo County Sheriff's Department
responded to a dispatch involving a “possible
10-65” in the area of Gun Club Road and Coors Boulevard
in the Albuquerque, New Mexico metropolitan area. Doc. 68-5,
Ex. F., p. 2. In general, a “10-65” is dispatch
code for a kidnapping. Doc. 68-6, Ex. H, 18:2-10. The
dispatcher relayed that the individual who had called
indicated that “there was a subject in a red Dodge
trying to take a female.” Doc. 68-5, Ex. F, p. 2. The
dispatcher stated that the female was last seen wearing
“cheetah print clothing and screaming.” Doc.
68-5, Ex. F at p. 2.
events leading to the police dispatch began when Donna Roybal
arranged to meet her boyfriend, decedent Manual Flores, at a
gas station so that he could return her red Dodge Dakota
pick-up truck. Doc. 68-2, Ex. A at 67:11-18; 72:22-73:19.
Ms. Roybal arrived at the location with her daughter,
Marlaina Prada, in a silver car. Doc. 68-2, Ex. A at 76:1-2;
Ex. J (showing silver car). When they met, Flores began
threatening Roybal that he would injure her family if she did
not leave with him. Doc. 68-2, Ex. A at 75. When Roybal would
not leave with Flores, he began physically assaulting her and
carried her into the truck. Doc. 68-2, Ex. A at 77:19-78:3,
78:20-24. Roybal eventually jumped out of truck and back into
Prada's vehicle. Doc. 68-2, Ex. A at 79:2-6. Prada, with
Roybal in the vehicle, then drove away from the gas station
while Flores followed them. Doc. 68-2, Ex. A at 84; Doc.
68-4, Ex. D at 16:21-17:2. Jeccika Enriquez and her son,
Devante, pulled into the gas station at some point during the
encounter between Roybal and Flores. Doc. 68-4, Ex. D at
8:23-9:13. Devante called 911 at approximately the time
Roybal and Prada left the gas station with Flores in pursuit.
Doc. 68-4, Ex. D at 14:11-18.
leaving the gas station, Prada and Roybal began traveling
northbound along Coors Boulevard. Roybal testified at her
deposition that Flores first struck their vehicle when he saw
her using her phone to dial 911. Doc. 68-2, Ex. A at
86:20-87:3. After Flores struck the vehicle, Prada began
making a u-turn in order to travel southbound on Coors near
the Countryside Mobile Home Park. Ex. J at 5:30-5:32. At this
point in time, Deputy Rodriguez was approaching the scene
driving northbound on Coors. Doc. 68-4, Ex. D at 29:3-9.
Deputy Rodriguez engaged his belt tape and activated his
siren. Ex. L. As Prada nearly completed the u-turn, Flores
intentionally struck her vehicle on the driver's side
door. Ex. A at 87:25-88:4; Doc. 68-4, Ex. D at 26:6-14; Ex. J
5:33-35; Ex. K 5:33-35. The impact forced Prada's car
onto the side of the road where it knocked over a stop sign.
Ex. J 5:25. Prada then drove back onto the roadway and came
to a stop on the shoulder of the road a few yards from the
initial impact. Ex. J at 5:43-48. Flores surged forward and
intentionally struck the vehicle again in the rear. Ex. J
5:48-51. At this point, Roybal exited the silver car hoping
that it would protect her daughter, who was still in the car
with her, from Flores. Doc. 68-2, Ex. A at 89:23-90:7; Ex J
6:05. Roybal then began running toward the mobile home
parking lot between the silver vehicle and a guardrail. Doc.
68-2, Ex. A 90:8-10; Doc. 68-4, Ex. D 27:17-20; Ex. J
6:05-6:07; Doc. 68-8, Ex. M at 8:2-12. Flores pursued Roybal
as she ran and nearly struck her with his truck. Doc. 68-4,
Ex. D at 27:17-21; Doc. 68-6, Ex. H at 70:5-14; Ex. J
6:05-07. After attempting to strike Roybal, Flores drove into
the mobile home parking lot, turned around, and began to
proceed toward southbound Coors. Ex. J at 6:13-22; Ex. K at
Flores was exiting the mobile home parking lot, Deputy
Rodriguez was approaching the same parking lot in the
northbound lane of Coors. Ex. J at 6:20-22. Deputy Rodriguez
had witnessed Flores strike Prada's vehicle as well as
his attempt to hit Roybal while she was running. Doc. 68-6,
Ex. H at 68:19-21, 90:10-20. As Deputy Rodriguez began to
turn into the mobile home parking lot, Flores struck the
driver's side of Deputy Rodriguez's patrol car. Ex. J
at 6:22-26; Ex. K at 6:22-26; Ex. L at 0:58-1:02. The parties
dispute whether this first strike pinned Deputy
Rodriguez's legs and prevented him utilizing either the
gas or brake pedals. The surveillance video shows that after
the first strike Deputy Rodriguez's unit rolled forward a
few feet before coming to a complete stop and thereafter did
not move. Ex. J. at 6:30-35.
striking Deputy Rodriguez's vehicle, Flores left the
scene proceeding southbound on Coors. Ex. J at 6:34-36.
Deputy Rodriguez reported to dispatch that Flores had struck
his vehicle and had left the mobile home parking lot. Ex. L
at 1:01-04. Flores, however, turned around and began heading
back toward the mobile home parking lot. Ex. K at 6:36-37.
Approximately twenty seconds elapsed between Flores'
first impact with Deputy Rodriguez's vehicle and his
return to the scene. Ex. J at 6:40-42. As Flores approached
Deputy Rodriguez's position, Deputy Rodriguez began
frantically attempting to open his car door from the outside
in order to exit the vehicle but the door was stuck shut from
the first impact. Ex. J at 6:36-40. Flores accelerated
straight for Deputy Rodriguez's unit and again struck it
in the driver's side door. Ex. J at 6:40-42. The force of
this collision drove both vehicles into the mobile home
parking lot. Ex. J at 6:44-46. This second collision caused
significant damage to Deputy Rodriguez's vehicle and
resulted in his legs being pinned inside his unit. Ex. N-1 -
N5; Doc. 68-6, Ex. H at 57:22-58:1.
striking Deputy Rodriguez's vehicle for the second time,
Flores stepped out of the truck and threw his hands in the
air and screamed inaudibly. Ex. J 6:47-48; Ex. L 1:22-1:26.
The parties offer differing interpretations of the nature and
intent of Flores “throwing his hands in the air.”
Defendants contend that it was an aggressive or challenging
action whereas Plaintiff posits that it was an act of
surrender. Based on the surveillance video evidence, it is
clear that Flores did not immediately raise his hands above
his head upon exiting the truck. Ex. J at 6:47. Instead,
Flores initially raised his arms to mid-torso height with his
hands extended outward from his body as he stepped around the
truck's door and away from the vehicle. Ex. J at 6:47.
Flores held this pose for approximately two to three seconds
before throwing his hands above his head. Ex. J at 6:47-6:50.
At that point, Deputy Rodriguez shot him twice in the chest.
Ex. J at 6:50-52; Ex. L at 1:24-27. Deputy Rodriguez did not
give any verbal warnings before firing. Ex. 5 at 45:16-20,
50:6-13. Flores died as a result of these gunshots.
the shooting, Deputy Rodriguez remained trapped in his
vehicle. Ex. J at 6:55. Three bystanders ultimately assisted
him in exiting the vehicle through the passenger side door.
Ex. J at 8:10. Approximately one minute and forty-five
seconds later, additional BCSO deputies arrived on the scene.
Ex. J at 8:30.
STANDARD OF REVIEW
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). There is no genuine dispute as to any
material fact unless the evidence is such that a reasonable
jury could return a verdict for the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). In reviewing a motion for summary judgment, the Court
views the evidence and all reasonable inferences therefrom in
the light most favorable to the non-moving party. S.E.C.
v. Thompson, 732 F.3d 1151, 1156-57 (10th Cir. 2013)
(quotation omitted). Initially, the party seeking summary
judgment has the burden of showing that there is no genuine
dispute as to any material fact. See Shapolia v. Los
Alamos Nat'l Lab., 992 F.2d 1033, 1036 (10th Cir.
1993). Once the moving party meets its burden, the non-moving
party must show that genuine issues remain for trial.
speaking, Defendants' Motions raise three main issues.
Defendants' first Motion contends that summary judgment
should be entered in their favor on Plaintiff's Fourth
Amendment excessive force claim. Doc. 69. More specifically,
Defendants argue that Deputy Rodriguez is entitled to
qualified immunity because he used an objectively reasonable
amount of force when he shot Flores and, alternatively, that
the law was not clearly established that the use of deadly
force under these circumstances was objectively unreasonable.
Defendants' second Motion contends that Plaintiff's
state law claims for wrongful death against Deputy Rodriguez
should be dismissed. Doc. 68. Defendants' third Motion
challenges Plaintiff's claims for municipal and
supervisory liability under state and federal law. Doc. 75.
The Court will address these Motions in turn.
Plaintiff's Fourth Amendment Claim
assert that Deputy Rodriguez is entitled to qualified
immunity on Plaintiff's excessive force claim under the
Fourth and Fourteenth Amendment. Doc. 69. Qualified immunity
protects public officials from liability “insofar as
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.
223, 231 (2009) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). When a defendant asserts qualified
immunity at the summary judgment stage, the burden shifts to
the plaintiff to show (1) the defendant violated a
constitutional right, and (2) the constitutional right was
clearly established at the time of the defendant's
conduct, i.e. the contours of the right were sufficiently
well developed that a reasonable official should have known
his conduct was unlawful. Courtney v. Okla. ex rel.
Dep't of Pub. Safety, 722 F.3d 1216, 1222 (10th Cir.
2013). The overarching inquiry is whether the law at the time
of the defendant's conduct provided the defendant with
“fair notice” regarding the legality of that
conduct. Pierce v. Gilchrist, 359 F.3d 1279, 1298
(10th Cir. 2004). As is commonly reiterated, qualified
immunity provides “ample room for mistaken judgments by
protecting all but the plainly incompetent or those who
knowingly violate the law.” Herrera v. City of
Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009)
(quoting Hunter v. Bryant, 502 U.S. 224, 229
(1991)). While the Court may first address either prong of
the analysis, Pearson v. Callahan, 555 U.S. 223, 236
(2009), the Court will begin with Defendants' argument
that the force Deputy Rodriguez utilized was objectively
The Force Deputy Rodriguez Employed was Objectively
Excessive force claims are analyzed under the reasonableness
requirement of the Fourth Amendment. See Graham v.
Connor, 490 U.S. 386, 395 (1989); Estate of Larsen
ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1259 (10th
Cir. 2008). “To establish a constitutional violation,
the plaintiff must demonstrate the force used was objectively
unreasonable.” Larsen, 511 F.3d at 1259.
“The reasonableness of a particular use of force must
be judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.”
Graham, 490 U.S. at 396. Reasonableness is
determined based on the information possessed by the officer
at the moment that force is employed, see Weigel v.
Broad, 544 F.3d 1143, 1152 (10th Cir. 2008), but the
inquiry does not take into account the specific officer's
intent or motivation. Graham, 490 at 397. The Court
must assess “objective reasonableness based on whether
the totality of the circumstances justified the use of force
and pay careful attention to the facts and circumstances of
the particular case.” Larsen, 511 F.3d at 1260
(internal quotation marks and citation omitted). This
includes consideration of “the severity of the crime at
issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively
resisting or attempting to evade arrest by flight.”
Graham, 490 U.S. at 397. “While these are the
most common considerations, they are not ‘a magical
on/off switch that [constitute] rigid preconditions' to
determine whether an officer's conduct constituted
excessive force.” Davenport v. Causey, 521
F.3d 544, 551 (6th Cir. 2008) (citing Scott v.
Harris, 550 U.S. 372 (2007)).
can be no genuine dispute in this case that Deputy Rodriguez
initially possessed justification to use deadly force during
this incident. “Deadly force is justified under the
Fourth Amendment if a reasonable officer in [the
defendant's] position would have had probable cause to
believe that there was a threat of serious physical harm to
themselves or to others.” Sevier v. City of
Lawrence, Kansas, 60 F.3d 695, 699 (10th Cir. 1995);
Thomas v. Durastanti, 607 F.3d 655, 664 (10th Cir.
2010) (“The use of deadly force is not unlawful if a
reasonable officer would have had probable cause to believe
that there was a threat of serious physical harm to himself
or others”). “Probable cause, while incapable of
precise definition, means that the facts and circumstances of
which the officer is aware and are reasonably viewed as
accurate are sufficient unto themselves to warrant a man of
reasonable caution to believe that deadly force is
necessary.” Davenport, 521 F.3d at 551 (6th
Cir. 2008) (internal quotation marks and citation omitted).
As articulated by the United States Supreme Court, “if
the suspect threatens the officer with a weapon or there is
probable cause to believe that he has committed a crime
involving infliction or threatened infliction of serious
physical harm, deadly force may be used if necessary to
prevent escape, and if, where feasible, some warning has been
given.” Tennessee v. Garner, 471 U.S. 1, 11-12
have routinely held that deadly force may be justified where
a suspect threatens to hit or run over an officer with a
vehicle. See Thomas, 607 F.3d at 664 (“if
threatened by [a] weapon (which may include a vehicle
attempting to run over an officer), an officer may use deadly
force”); Lytle v. Bexar County, Tex., 560 F.3d
404, 412 (5th Cir. 2009) (stating that it would be a
reasonable use of force to shoot suspect backing vehicle
toward the officer due to “the threat of immediate and
severe physical harm that the reversing [car] posed to [the
officer]”); Waterman v. Batton, 393 F.3d 471,
478 (4th Cir. 2005) (concluding that a suspect who
accelerated his vehicle toward officers “posed an
immediate threat of serious physical harm”). Because
the threat of hitting an officer with a vehicle may justify
the use of deadly force, it is axiomatic that
actually hitting an officer with a vehicle may
justify the use of deadly force. See Hathaway v.
Bazany, 507 F.3d 312, 322 (5th Cir. 2007) (concluding
deadly force was justified where the suspect struck the
officer with his car); Herman v. City of Shannon,