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Tenorio v. Pitzer

United States District Court, D. New Mexico

September 19, 2018



         This matter comes before the Court on (i) Defendant Brian Pitzer's Motion to Reconsider, and Memorandum in Support (ECF No. 185); (ii) Defendants' Motion for Separate Trials and Memorandum in Support (ECF No. 170); and (iii) Defendants' Daubert Motion, and Memorandum in Support, Requesting to Exclude Testimony of Plaintiff's Expert Roger A. Clark (ECF No. 171). The Court, having considered the motions, briefs, applicable law, and otherwise being fully advised, concludes that Defendant's Motion to Reconsider should be denied; Defendants' motion for separate trials should be denied as to the request for two separate trials, but bifurcation of one trial into two phases before the same jury should be granted; and Defendants' motion to exclude the testimony of Mr. Clark should be granted in part and denied in part as described herein.


         The facts necessary to resolve the pending motion to reconsider are those set forth in the Court's Memorandum Opinion and Order denying summary judgment to Defendant Pitzer, which are either undisputed or construed in the light most favorable to Plaintiff as the non-movant. See Mem. Op. and Order 2-6. The Tenth Circuit relied on the operative facts from the Court's opinion. See Tenorio, 802 F.3d at 1161-63. The Court need not repeat those facts herein but adopts them by reference for the purposes of resolving the motion to reconsider.


         Plaintiff filed suit against Defendants Brian Pitzer and the City of Albuquerque (“the City”) asserting claims arising from events that occurred on November 11, 2010, in which Albuquerque Police Officer Pitzer shot Russell Tenorio when responding to an emergency call. The case was consolidated with the related case of Russell Tenorio v. Andrea Ortiz, CIV 13-574. See Order, ECF No. 96. On June 14, 2016, the parties stipulated to the dismissal of all claims asserted against Defendants Robert Liccione, Raymond Schultz, and Andrea Ortiz. See Stipulated Dismissal, ECF No. 154. The claims that remain in the consolidated cases are an excessive force claim under 42 U.S.C. § 1983 for violation of the Fourth Amendment against Defendant Pitzer (Count I) and a municipal liability claim under 42 U.S.C. § 1983 against the City (Count II) in No. 12-cv-1295. See Mem. Op. and Order 2, ECF No. 178.

         As to Count I, the Court entered a Memorandum Opinion and Order (ECF No. 121) in this case denying Defendant Pitzer's motion for summary judgment based on qualified immunity. The Court concluded that there was evidence that Defendant Pitzer violated clearly established law under two theories: (1) that he lacked probable cause to believe Russell Tenorio presented a threat of serious physical harm to another person, and (2) that he and his fellow officers recklessly created the situation resulting in the need to use deadly force. See Mem. Op. and Order 8-15, ECF No. 121. Defendant Pitzer appealed the Court's decision, and in a 2-1 opinion, the Tenth Circuit “affirm[ed] the denial of summary judgment because the evidence would support a violation of clearly established law under the first theory.” Tenorio v. Pitzer, 802 F.3d 1160, 1161 (10th Cir. 2015). The Tenth Circuit declined to consider the second theory. Id. Defendant Pitzer filed a petition for writ of certiorari that the Supreme Court denied. See Order, ECF No. 151.

         Following remand, the City filed a motion for summary judgment (ECF No. 158) requesting dismissal of all claims against it. Defendants also filed a motion to bifurcate (ECF No. 170) and a motion to exclude Plaintiff's expert Roger A. Clark (ECF No. 171), the latter two of which are currently pending and the subject of this Memorandum Opinion and Order. On September 25, 2017, the Court entered a Memorandum Opinion and Order (ECF No. 178) denying the City's motion for summary judgment.

         On January 12, 2018, this case was reassigned to the undersigned judge. On April 16, 2018, Defendant Pitzer filed a Motion to Reconsider (ECF No. 185), moving the Court to reconsider the Honorable M. Christina Armijo's Memorandum Opinion and Order (ECF No. 121) that denied Defendant Pitzer qualified immunity in light of the United States Supreme Court's decision in Kisela v. Hughes, 584 U.S. __, 138 S.Ct. 1148 (2018), issued on April 2, 2018. The Court will first consider the pending motion to reconsider.


         An order denying summary judgment is interlocutory. The Court has broad discretion to reconsider its interlocutory orders prior to entry of judgment. Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1251 (10th Cir. 2011) (“[D]istrict courts generally remain free to reconsider their earlier interlocutory orders.”); see also Fed. R. Civ. P. 54(b) (“[A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.”). “Notwithstanding the district court's broad discretion to alter its interlocutory orders, the motion to reconsider is not at the disposal of parties who want to rehash old arguments.” Nat'l Bus. Brokers, Ltd. v. Jim Williamson Prods., Inc., 115 F.Supp.2d 1250, 1256 (D. Colo. 2000) (internal quotations omitted). A court should deny a motion to reconsider unless the party clearly demonstrates manifest error of law or fact or presents newly discovered evidence. Id.

         Defendant Pitzer argues that Kisela v. Hughes represents an intervening change in controlling law that requires this Court to consider the Tenth Circuit's decision erroneous. Defendant Pitzer contends that the facts of Kisela are similar to this case, and argues that this case is subject to the Supreme Court's holding. In Kisela, the Supreme Court held that Officer Kisela did not clearly violate the Fourth Amendment when he shot a suspect who presented a threat to another as she held a knife to her side about six feet away from a bystander, and where she was given two commands to drop the knife, both of which she failed to acknowledge. See Kisela, 138 S.Ct. 1151-52.

         The Supreme Court expressly stated in Kisela that it did not decide whether the officer violated the Fourth Amendment. Kisela, 138 S.Ct. at 1152. Instead, the Supreme Court assumed a Fourth Amendment violation occurred and held that, based on the facts, it was not clearly established that the officer's use of deadly force violated the Fourth Amendment. See Id. After discussing the importance of specificity in the Fourth Amendment qualified immunity context, the Supreme Court examined the specific facts in the case before it:

Kisela says he shot Hughes because, although the officers themselves were in no apparent danger, he believed she was a threat to Chadwick. Kisela had mere seconds to assess the potential danger to Chadwick. He was confronted with a woman who had just been seen hacking a tree with a large kitchen knife and whose behavior was erratic enough to cause a concerned bystander to call 911 and then flag down Kisela and Garcia. Kisela was separated from Hughes and Chadwick by a chain-link fence; Hughes had moved to within a few feet of Chadwick; and she failed to acknowledge at least two commands to drop the knife. Those commands were loud enough that Chadwick, who was standing next to Hughes, heard them. This is far from an obvious case in which any competent officer would have known that shooting Hughes to protect Chadwick would violate the Fourth Amendment.

Id. at 1153.

         The Supreme Court did not end its analysis there. Instead, the Supreme Court examined the Ninth Circuit's analysis of its own precedent, determining that the Court of Appeals erred in concluding that its precedent clearly established that the officer used excessive force. See Id. The Supreme Court stated: “To begin with, ‘even if a controlling circuit precedent could constitute clearly established law in these circumstances, it does not do so here.'” Id. (quoting City and County of San Francisco v. Sheehan, 135 S.Ct. 1765, 1776 (2015)). It explained that the most on-point Ninth Circuit precedent actually favored the officer, and the other decisions relied on by the Court of Appeals were not sufficiently analogous to govern the officer under the circumstances he faced. See Id. at 1153-54.

         Significantly, this case is not before the Court on a blank slate. The Tenth Circuit has already affirmed the Court's decision. It did so by relying on Tenth Circuit precedent. On appeal of this case, the Tenth Circuit relied on the case of Zuchel v. City & County of Denver, 997 F.2d 730 (10th Cir. 1993), as construed in Walker v. City of Orem, 451 F.3d 1139, 1160 (10th Cir. 2006). See Tenorio, 802 F.3d at 1165. The Tenth Circuit explained with specificity how Zuchel was a factually similar case to this one, in which officers reasonably believed the suspect had a knife, the suspect had been told to drop it, but officers shot him when he took steps toward an officer who was six to fifteen feet away, even though he made no aggressive move toward any of the officers. See Tenorio, 802 F.3d at 1165-66 (construing Zuchel, 997 F.2d at 735-37). The Tenth Circuit in Zuchel held that the evidence was sufficient for the jury to find that the use of deadly force was not objectively reasonable. See Id. (citing Zuchel, 997 F.2d at 736). Accordingly, unlike in the Ninth Circuit, Tenth Circuit case law in Zuchel “specifically established that where an officer had reason to believe that a suspect was only holding a knife, not a gun, and the suspect was not charging the officer and had made no slicing or stabbing motions toward him, that it was unreasonable for the officer to use deadly force against the suspect.” Tenorio, 802 F.3d at 1165-66 (quoting Walker, 451 F.3d at 1160).

         The Supreme Court in Kisela did not decide that the officer acted constitutionally. Had it done so, the Court's analysis herein might be different. Instead, the Supreme Court held that it was not clearly established by Supreme Court or Ninth Circuit precedent that the officer's actions were unconstitutional. “Ordinarily, in 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.” Becker v. Bateman, 709 F.3d 1019, 1023 (10th Cir. 2013) (quoting Morris v. Noe, 672 F.3d 1185, 1196 (10th Cir. 2012) (italics added). The Supreme Court's analysis in Kisela that Supreme Court and Ninth Circuit precedent was not sufficiently clear to render the officer's actions a clear violation of law does not compel the same result in this circuit, because it did not analyze the clearly established law in the Tenth Circuit.

         In this case on appeal, the Tenth Circuit held that, under the facts as construed in Plaintiff's favor that were before the district court, it was clearly established that Defendant Pitzer violated the Fourth Amendment. It did so by examining a case with similar facts, not by relying on a case stating law of general applicability. The cases upon which it relied predated the events at issue here. Kisela thus did not effectively overrule Tenorio or amount to an intervening change in controlling law. This Court therefore continues to be bound by the Tenth Circuit decision in Tenorio v. Pitzer, 802 F.3d 1160, and will deny Defendant Pitzer's motion for reconsideration.


         Defendants have moved to bifurcate the trial of Plaintiff's municipal liability claim against the City from the trial of Plaintiff's excessive force claim against Defendant Pitzer. Defendants argue two trials will be more economical because the municipal liability claim is dependent upon whether liability is first assessed against Defendant Pitzer, so if a jury finds for Defendant Pitzer, there is no need to present evidence on the municipal liability claim. Defendants anticipate Plaintiff will attempt to prove his municipal liability claim through the introduction of evidence of internal affairs complaints against and investigations of Defendant Pitzer, as well as portions of the April 10, 2014 letter from the United States Department of Justice (“DOJ letter”) regarding the Albuquerque Police Department's policies and practices regarding the use of force. Defendants argue this evidence is not relevant under the Fourth Amendment's objective standard to determine whether Defendant Pitzer used excessive force during the incident in question and would cause him unfair prejudice.

         Plaintiff asserts that Defendants' concerns can be mitigated by introducing limiting instructions at appropriate times during one trial, or by empaneling one jury and trying the case in two phases. Plaintiff contends his claim against Defendant Pitzer is inseparable from the culture in which he operated.

         This Court has discretion to grant separate trials under Federal Rule of Civil Procedure 42(b) upon consideration of the need to prevent delay and prejudice and promote convenience, expedition, and economy. In the present case, completely separate trials will not prevent delay and will not be conducive to convenience or economy of the Court. Bifurcation of counts into phases, however, will streamline the presentation of evidence as to the excessive force claim, and potentially render superfluous the introduction of evidence as to municipal liability, should the jury not find for Plaintiff in the first phase. Moreover, the Court finds that evidence relevant to the municipal liability claim but not relevant to the excessive force claim could cause unfair prejudice to Defendant Pitzer when the jury is considering whether his use of force on the date in question was unreasonable. Bifurcation will produce a fairer trial for both parties because “it will eliminate the significant problem of unfair prejudice resulting from introducing evidence admissible on one claim yet totally inadmissible on all others, ” while preventing the possibility of evidence otherwise admissible on the municipal liability ...

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