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Vera v. Rodriguez

United States District Court, D. New Mexico

January 8, 2018

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.


         THIS 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.


          Except 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.

         The 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.[1] 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.

         After 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 6:13-22.

         As 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.

         After 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.[2]

         After 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.[3] 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.

         After 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.


         “The 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. Id.

         III. ANALYSIS

         Broadly 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.[4]

         A. Plaintiff's Fourth Amendment Claim

         Defendants 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 reasonable.

         i. The Force Deputy Rodriguez Employed was Objectively Reasonable

          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)).

         There 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 (1985).

         Courts 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, ...

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