United States District Court, D. New Mexico
ELSA HERNANDEZ, as personal representative of the wrongful death estate of Irisema Hernandez, deceased, Plaintiff,
MALIN PARKER, in his official and individual capacities; ROOSEVELT COUNTY BOARD OF COMMISSIONERS; and ROOSEVELT COUNTY SHERIFF'S DEPARTMENT, Defendants.
ORDER GRANTING IN PART DEFENDANTS' MOTION FOR
R. SWEAZEA UNITED STATES MAGISTRATE JUDGE
August 31, 2016, Irisema Hernandez died when the white
Lincoln Town Car Eduardo Lopez was driving and in which she
was a passenger in crashed into a tree. Lopez was being
pursued in a high-speed chase throughout areas in and around
Portales, New Mexico by Defendant Malin Parker, the Sheriff
of Roosevelt County, in an unmarked truck. In the final
moments of the chase-at least as Lopez describes it-Sheriff
Parker attempted a PIT maneuver, bumping the back of the
Lincoln with his truck and causing Lopez to lose control of
and crash the sedan. Hernandez's Estate subsequently
commenced this action seeking compensation from Parker,
inter alia, under 42 U.S.C. § 1983 for alleged
deprivations of Hernandez's rights under the Fourth and
Fourteen Amendments as well as various state law theories.
Defendants now move for summary judgment on all claims. (Doc.
34). As is relevant here, Sheriff Parker asserts entitlement
to qualified immunity on the Estate's federal claims. The
Estate disagrees and argues a genuine dispute of material
fact exists as to reasonableness of the pursuit, its
termination, and whether the chase was so egregious as to
shock the conscience. With the consent of the parties to
conduct dispositive proceedings, see 28 U.S.C.
§ 636(c), the Court has considered the parties'
submissions and the record on summary judgment. Having done
so, the Court determines that Sheriff Parker is entitled to
qualified immunity on the Estate's federal law claims and
declines to exercise supplemental jurisdiction over the
remaining state-law causes.
August 31, 2016, Sheriff Parker and Lieutenant Javier Sanchez
of the Roosevelt County Sheriff's Department were on
patrol in and around Portales, New Mexico. (Doc. 40-6, at 5).
They were in Sheriff Parker's patrol vehicle, an
unmarked, white Chevy extended-cab pickup truck equipped with
internal lights and sirens. (Doc. 40-6, at 4; 40-7, at
12-13). That day, Sheriff Parker wore a black hoodie. (Doc.
40-5, at 3). Lieutenant Sanchez was clad in full
Sheriff's Department uniform. (Id.).
11:55 a.m., Sheriff Parker observed a white Lincoln town car
he recognized as belonging to Hernandez, whom Sheriff Parker
knew, at the Classic American Economy Inn. (Doc. 40-6).
Sheriff Parker believed that Hernandez was on house-arrest at
the time because the Sheriff was in court at the time the
conditions of release were imposed restricting
Hernandez's movements. (Doc. 45-6, at 5). Sheriff Parker
also saw Lopez, whom Sheriff Parker did not know, and
Hernandez approaching the sedan. (Doc. 40-6, at 5). After
passing the motel, Sheriff Parker turned the truck around to
contact Hernandez. (Doc. 40-6, at 5). When Sheriff Parker
reached the motel, he parked his truck in front of
Hernandez's Lincoln, boxing it in. (Doc. 40-6, at 5).
time Sheriff Parker and Lieutenant Sanchez got out of the
vehicle, Hernandez was in the passenger side of the Lincoln;
Lopez sat in the driver's seat. (Doc. 34-5; Doc. 40-6, at
5). Lopez was frantically trying to and did start the sedan.
(Doc. 40-6, at 5). Hernandez appeared to be reaching for the
floor board (Doc. 40-6, at 5). Both Sheriff Parker and
Lieutenant Sanchez had their guns drawn. (Doc. 34-1, at 4).
Sheriff Parker was at the driver side of the Hernandez's
vehicle, and Lieutenant Sanchez was near the passenger side.
(Doc. 40-6, at 5-6). Neither Sheriff Parker nor Lieutenant
Sanchez identified himself as a law enforcement officer nor
gave commands, and Sheriff Parker stood directly in front of
the Lincoln and pointed his gun at Lopez. (Doc. 40-6, at 6;
40-8, at 2)
Lincoln backed up to maneuver around the Sheriff Parker's
truck, nearly hitting the exterior of the motel. (Doc. 34-5,
at 2; Doc. 40-6, at 6). Lopez then drove forward, struck
Sheriff Parker, left the motel, headed East on U.S. 70. (Doc.
40-6, 6-7; 40-7, at 11). After Sheriff Parker composed
himself, he and Lieutenant Sanchez gave chase in the pickup.
(Doc. 40-6, 5-10; 40-7, at 11-12). They engaged the emergency
equipment, although the light bar was not visible from the
side. (Doc. 34-1, at 7, 34-5, at 2). Lopez, however, heard
only the siren. (Doc. 40-8, at 2).
Highway 70, Lopez made a left on University Avenue and from
University, a right turn onto North Avenue O. (Doc. 34-1, at
6-7; Doc. 40-6, 5-10). Lopez ran a stop sign at the
intersection of North O and West Lime and another stop sign
at North O and New Mexico Highway 236, where Lopez almost
collided with another vehicle. (Doc. 34-1, at 6-7, 11; Doc.
40-6, 5-10). Lopez turned left on New Mexico Highway 236 and
turned south on Roosevelt Road T. (Doc. 34-1, at 6-7, 11). At
the intersection of Road T and New Mexico Highway 267, Lopez
ran another stop sign as he turned right onto Highway 267.
(Doc. 34-1, at 6-7, 11; Doc. 40-6, 5-10).
the intersections of Roads T and U on Highway 267, Sheriff
Parker hit the Lincoln with his truck at a high rate of
speed. (Doc. 34-8, at 2-3; Doc. 40-2, at 2-4; 40-4, at 2-4,
7-8). Lopez, who later described the impact as a “PIT
maneuver, ” lost control of the vehicle, slid into an
adjacent bar ditch, and hit a tree. (Doc. 34-8, at 2-3; Doc.
40-2, at 2-4; 40-4, at 2-4, 7-8; 40-8, at 2-3). Hernandez
died as a result of injuries sustained during the automobile
crash. (Doc. 34-8, at 2-3). During the chase, speeds exceeded
100 miles per hour. (Doc. 40-4, at 2). The pursuit took place
in residential areas and near a university and schools while
school was in session. (Doc. 40-6, at 15). At the time of the
collision, there were no other vehicles in front of the town
car. (40-8, at 2-3).
December 12, 2017, Hernandez's Estate commenced this
action. (Doc. 1). In its six-count complaint, the Estate
alleges: (1) Sheriff Parker was negligent under New Mexico
law in operating his unmarked patrol vehicle; (2) Sheriff
Parker committed aggravated assault and battery under New
Mexico law by engaging in the high-speed chase resulting in
Hernandez's death; (3) the County is vicariously liable
for Sheriff Parker's wrongful actions; (4)
Hernandez's death deprived of her children of consortium;
(5) Sheriff Parker unlawfully seized Hernandez contrary to
the Fourteenth Amendment; and (6) Sheriff Parker engaged in
excessive force in violation of the Fourth and Fourteenth
Amendments. (Doc. 1). Defendants now move for summary
judgment on the state-law claims and Sheriff Parker for
qualified immunity on Counts V an VI. (Doc. 34).
immunity entitles a law enforcement officer to avoid trial
and the other burdens of litigation arising from the
performance of his or her discretionary functions. See
Quinn v. Young, 780 F.3d 998 (10th Cir. 2015). To give
effect to the doctrine, the Court views the parties'
respective burdens on summary judgment differently. See
Clark v. Edmunds, 513 F.3d 1219, 1222 (10th Cir. 2008);
Price-Cornelison v. Brooks, 524 F.3d 1103, 1108
(10th Cir. 2008). To defeat qualified immunity on summary
judgment, the plaintiff must satisfy “a strict two-part
test” by establishing with record evidence (1)
“the defendant's actions violated a constitutional
. . . right” and (2) that right was “clearly
established at the time of the conduct at issue.”
Clark, 513 F.3d at 1222 (internal quotation marks
and citation omitted). The Court may address the two prongs
in whatever order it chooses “in light of the
circumstances in the particular case at hand.”
Pearson v. Callahan, 555 U.S. 223, 236 (2009). If a
plaintiff satisfies the two-part test, then- and only
then-does the law enforcement officer bear his or her
traditional burden to show the absence of a triable issue of
fact. See Clark, 513 F.3d at 1222.
Section 1983 case, the Court's first task is to
“identify the specific constitutional right allegedly
infringed by the challenged application of force.”
Graham v. Connor, 490 U.S. 386, 394 (1989).
“Where . . . the excessive force claim arises in the
context of an arrest or investigatory stop of a free citizen,
it is most properly characterized as one invoking the
protections of the Fourth Amendment . . . against
unreasonable . . . seizures[.]” Id. (citation
omitted). In Graham, the Supreme Court held that all
excessive-force claims stemming from “an arrest,
investigatory stop, or other ‘seizure' . . . [must]
be analyzed under the Fourth Amendment and its
‘reasonableness' standard, rather than under a
‘substantive due process' approach.”
Id. at 395. The reason, the Supreme Court said, is
the Fourth Amendment “provides an explicit textual
source of constitutional protection against this sort of
physically intrusive governmental conduct, ” while the
Fourteenth Amendment more generally prohibits arbitrary and
abusive government conduct. Id.
case, the Estate's complaint alleges both, mutually
exclusive theories of recovery. Count V seeks recovery for
Hernandez's death resulting from Sheriff Parker's
conscience-shocking high-speed pursuit while Count VI alleges
that Sheriff Parker was objectively unreasonable in engaging
in a dangerous high-speed police pursuit. As explained above,
however, the former, substantive due process theory is only
viable under ...