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Tierra Blanca Ranch High Country Youth Program v. Gonzales

United States District Court, D. New Mexico

February 15, 2019

TIERRA BLANCA RANCH HIGH COUNTRY YOUTH PROGRAM; SCOTT CHANDLER; COLETTE CHANDLER; and BRYCE HALL, Plaintiffs,
v.
FELIPE GONZALES, Defendant.

          ORDER DENYING WITHOUT PREJUDICE AMENDED MOTION FOR SPOLIATION SANCTIONS

          KEVIN R. SWEAZEA, UNITED STATES MAGISTRATE JUDGE

         THIS MATTER comes before the Court on Plaintiffs' amended motion for spoliation sanctions. (Doc. 124). The focus of Plaintiffs' motion are phone conversations between Scott Chandler and Officer Felipe Gonzales that Plaintiffs say Officer Gonzales recorded, but contrary to New Mexico Department of Public Safety (“DPS”) policy, did not preserve.[1] According to Plaintiffs, the recording(s) would corroborate their claim that Officer Gonzales used deceit and coercion on September 30, 2013 to gain access to the Tierra Blanca Ranch, where Mr. and Mrs. Chandler operate a program for troubled teens. At the time, Officer Gonzales was investigating allegations of abuse as well as what turned out be an unrelated fatality from an automobile accident. In addition to attorneys' fees, Plaintiffs ask the Court for: (1) judgment in their favor; (2) alternatively, a ruling that Officer Gonzales lacked consent to enter the Ranch; or (3) alternatively, a jury instruction that the missing recording presumably contained evidence favorable to Plaintiffs. With the parties' consent to conduct dispositive proceedings, see 28 U.S.C. § 636(c), the Court has considered the parties' submissions, the case record, and heard oral argument on the matter on January 29, 2019.[2] Having done, so the Court DENIES Plaintiffs' motion without prejudice.

         BACKGROUND

         Together with his wife, Collette, Scott Chandler owns and operates the Tierra Blanca Ranch High Country Youth Program, “a privately funded program for troubled youths[.]” (Doc. 76, ¶¶ 5-7; 11). The program aims to help “troubled teenagers turn their lives around” by providing a “simple ranch life.” (Id., ¶11). For many parents, the program is a last resort for “teenagers [who] have become unmanageable and uncontrollable.” (Id., ¶12). The Ranch, located in Sierra County New Mexico, has helped youths for over fifteen years.

         In 2012, allegations of abuse at the Ranch surfaced. The Sierra County Sheriff's Office, and as is more relevant here, the New Mexico State Police (“NMSP”), opened investigations. In May 2013, Officer Gonzales was tasked with looking into the accusations. On September 22, 2013, a program resident died in an automobile accident. A Ranch employee was driving the vehicle at the time, and four other program participants were inside. Officer Gonzales investigated the crash as part of the abuse allegations, although he later determined the two matters were unrelated.

         On September 30, 2013 at about 10:15 a.m., Gonzales, five other officers from the New Mexico State Police, and five officials from New Mexico's Children, Youth, and Families Department arrived at the Ranch to conduct interviews of the teens and Mr. Chandler. Ms. Chandler met the officers and others at the Ranch's gate; Mr. Chandler was in Deming at a counselling session with the Ranch employee involved in the automobile accident. The four teens with knowledge of the crash were also at Ranch. The other nine program participants were working about forty-five minutes away from the Ranch. Ultimately, Ms. Chandler let the officials onto the property, the remaining youths joined the others at the Ranch, and the youths were interviewed. The Court is unsure from the present record whether Mr. Chandler returned to the Ranch before the youths were interviewed and whether he was interviewed on September 30, 2013. This litigation ensued.

         As is relevant here, Plaintiffs claim that Officer Gonzales's warrantless entry violated the Fourth Amendment. Although Mr. Chandler and Officer Gonzales arranged through a series of phone conversations beginning on September 24, 2013 for Officer Gonzales to come to the Ranch and conduct interviews on September 30, 2013, Plaintiffs say Officer Gonzales misrepresented the investigation's scope. Mr. Chandler believed that he and Officer Gonzales agreed only the four youths involved in the crash would be interviewed, although the interview would cover the allegations of abuse as well; Officer Gonzales would not interview Mr. Chandler at the same time as the children; and the other nine youth Ranch residents would not be disturbed from their routine. Officer Gonzales denies any misrepresentations and maintains that he received consent to enter. It is undisputed that Officer Gonzales did not inform Mr. and Mrs. Chandler that the other law enforcement officers and CYFD personnel would accompany him to the Ranch. Following motion practice, the Court's predecessor ruled there was triable issue of fact whether, under the totality of the circumstances, consent was coerced.

         The instant motion centers around the conversations occurring during the period of September 24 through September 30, 2013 when Mr. Chandler and Officer Gonzales discussed the prospective interviews. (Doc. 124). During this period, Officer Gonzales had a general practice of recording his phone calls on the files he worked, including the Ranch investigation. (Doc. 103, at 12). Officer Gonzales would hold a portable Olympus digital recorder next to his office phone and switch on the speaker during calls. (Id.). Each day, Officer Gonzales would endeavor to upload the digital files to his local computer and to the NMSP server. (Id.). This practice is consistent with DPS's “Use of Recording Equipment, ” contained within its “Policies and Procedures, ” which generally requires an officer to carry a portable recorder and utilize it “to document citizen encounters that take place outside the close proximity of the patrol unit” and “upload their digital audio recorders onto the server daily or a soon as practical” (Doc. 124, at 29). The same guidelines prohibit an officer from “eras[ing], reus[ing], or in any manner alter[ing]recordings” unless “no longer needed for court proceedings or Departmental purposes[.]” (Id., at 31).

         The filings in this case include a transcript of a recorded conversation between Mr. Chandler and Officer Gonzales on September 24, 2013 when Officer Gonzales first contacted Mr. Chandler and a recording as well as transcripts of a conversation on September 30, 2013 when Officer Gonzales arrived at the Ranch. (See Docs. 51-2; 185-1). Mr. Chandler was not at the Ranch on September 30, 2013 when Officer Gonzales arrived, but spoke to Officer Gonzales over Ms. Chandler's cell phone, which Officer Gonzales captured, in part, with his portable device. (Id.). In the recording from the 30th, Mr. Chandler disputes that Officer Gonzales told Mr. Chandler all program participants would be interviewed and that Mr. Chandler was to be interviewed that day at the Ranch as well. (See Doc. 185-1, Track 5). Mr. Chandler protests having to disrupt the boys working away from the Ranch and bring them back. (Id.). During the call, Officer Gonzales insists he clarified what would happen during a “Friday” telephone conversation, which Officer Gonzales says he recorded. (Id.). According to a 2013 calendar, the Friday before September 30 was September 27, 2013. Either as part of initial disclosures or pursuant to written discovery, Officer Gonzales has not produced any other recordings of telephone conversations between him and Mr. Chandler.

         Drawing on the “Friday” conversation, other indicia of missing recordings, and most recently, Mr. Chandler's cell-phone records Officer Gonzales produced in discovery that Officer Gonzales obtained pursuant to a warrant as part of the criminal investigation, Plaintiffs assert a conversation took place on September 27 or 28, 2013, Officer Gonzales recorded it, and Officer Gonzales failed to persevere it. (See Docs. 124; 189). Initially and during oral argument, Officer Gonzales maintained there was no proof a phone call ever occurred. (Doc. 190-1, at 1-2). Shortly after turning over the call log, Officer Gonzales's attorney acknowledged in an affidavit “it appears there may have been at least one (1) phone call between Scott Chandler's cell phone and a telephone number at the New Mexico State Police office in Las Cruces, NM on September 28, 2013.” (Id.).

         ANALYSIS

         “Spoliation” involves “the intentional or negligent destruction or loss of tangible and relevant evidence which impairs a party's ability to prove or defend a claim.” Browder v. City of Albuquerque, 209 F.Supp.3d 1236, 1243 (D.N.M 2016) (internal citation omitted). If appropriate, the Court may sanction a litigant for spoliation under its inherent authority. See Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (explaining that “by their very creation, ” federal courts are vested with powers, including “the ability to fashion an appropriate sanction for conduct which abuses the judicial process”). “[S]poliation sanctions are proper when (1) a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.” EEOC v. JetStream Ground Servs., 878 F.3d 960, 964 (10th Cir. 2017) (citation omitted). The party seeking sanctions must prove, by a preponderance of the evidence, that the opposing party failed to preserve evidence or destroyed it. See Browder, 209 F.Supp.3d at 1243. In a nutshell, the analysis requires the Court to first determine if sanctions are warranted and then decide what sanction to impose in the exercise of restraint and discretion. See Chambers, 501 U.S. at 45. In this case, the Court reaches only the first question.

         A. The Propriety of Sanctions

         1. Obligation to ...


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