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Cruz v. City of Albuquerque

United States District Court, D. New Mexico

March 6, 2019

CITY OF ALBUQUERQUE, a New Mexico municipality, and JODI GONTERMAN, In her individual capacity, Defendants.


         On August 14, 2017, Plaintiffs Christopher Cruz and Donovan Maez filed an amended complaint against Defendants City of Albuquerque and Albuquerque Police Department Detective Jodi Gonterman, in her individual capacity, under 42 U.S.C. § 1983 and the New Mexico Tort Claims Act, NMSA 1978 § 41-4-12.[1] Plaintiffs brought claims for illegal and false arrest, false imprisonment, malicious prosecution, abuse of process, and deprivation of state and federal constitutional rights arising from events in the aftermath of Jaydon Chavez-Silver's murder in June 2015. See Amended Complaint (Doc. 16). Defendants filed a motion seeking summary judgment on all of Plaintiffs' claims on the grounds that they are entitled to qualified immunity on the federal claims and that immunity has not been waived under the New Mexico Tort Claims Act.[2] The Motion is fully briefed.[3] On December 17, 2018, the Court heard oral argument on the Motion. After considering the parties' arguments, briefs, evidence, and applicable authorities, the Court will grant Defendants' Motion for Summary Judgment on Plaintiffs' Counts I and II, and will remand Count III, the state law claims, and the case to the Second Judicial District Court, County of Bernalillo, State of New Mexico.


         Summary judgment is appropriate “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). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment[.]” Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 247-48 (1986) (emphasis in original). Rather, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248. The movant bears the initial burden of “show[ing] ‘that there is an absence of evidence to support the nonmoving party's case.'” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Once the movant meets this burden, the nonmoving party must “go beyond the pleadings and by [its] own affidavits or by the ‘depositions, answers to interrogatories, and admissions on file,' designate ‘specific facts showing that there is a genuine issue for trial, '” Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56 (e)).

         However, when a defendant moves for summary judgment on the basis of a qualified immunity defense, the analysis is modified slightly. “Individual defendants named in a § 1983 action may raise a defense of qualified immunity, which shields public officials…from damages actions unless their conduct was unreasonable in light of clearly established law.” Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014) (ellipsis in original) (internal quotation marks and citation omitted). “Put simply, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.” Mullenix v. Luna, U.S., 136 S.Ct. 305, 308 (2015) (internal quotation marks and citation omitted). “[Q]ualified immunity is an immunity from suit rather than a mere defense to liability[.]” Pearson v. Callahan, 555 U.S. 223, 237 (2009) (internal quotation marks and citation omitted).

         Once the moving party asserts qualified immunity, the nonmoving party has the “the burden to show: (1) that the defendant's actions violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant's unlawful conduct.” Gutierrez v. Cobos, 841 F.3d 895, 900 (10th Cir. 2016) (internal quotation marks and citation omitted). If the nonmoving party fails to establish either part of the two-part inquiry, the court must grant the moving party qualified immunity. Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001). If the nonmoving party satisfies both elements of the qualified immunity analysis, then the moving party assumes the normal summary judgment burden of demonstrating that no material facts, that would defeat its claim for qualified immunity, remain in dispute. Woodward v. City of Worland, 977 F.2d 1392, 1396-97 (10th Cir. 1992). In analyzing a motion for summary judgment, the Court “view[s] the facts and evidence submitted by the parties in the light most favorable to the nonmoving party.” Christy v. Travelers Indem. Co. of Am., 810 F.3d 1220, 1225 (10th Cir. 2016).


         The facts of this case, viewed in the light most favorable to the Plaintiffs, are as follows.[4]

         A. Investigation and Arrest of Plaintiffs

          At around 10:00 p.m. on June 26, 2015, Manzano High School student Jaydon Chavez-Silver was shot through a window while attending a gathering at 1101 Nakomis Drive NE in Albuquerque, New Mexico. See Mot. UMF #1; Resp. at 11. A neighborhood witness reported that around 10:05 p.m. he heard seven or eight pops that he thought were firecrackers, and then he saw an “older model large car” that he stated reminded him of a “Nissan Maxima” that “looked ‘pearlesque' or white in color” speeding by. See Def. Ex. J, Interview w/ Todd Busby at 3:5-10, 3:18-20, 4:2-13 (Doc. 29-11). When officers arrived at the Nakomis house, Jaydon was lying prone on the kitchen floor. See Mot. UMF #2, Resp. at 11. He was transported to the hospital where he later died as a result of the gunshot wound. See Mot. UMF #2, Resp. at 11. Albuquerque Police Department Detective Jodi Gonterman was assigned to investigate the murder. See Mot. UMF #4, Resp. at 11.

         As part of the investigation, Detective Gonterman and other officers conducted a series of interviews with witnesses who were present at the Nakomis residence at the time of the shooting. Detectives learned from more than one witness that there had been a fight at the Nakomis residence during a gathering that took place approximately one month prior to the shooting. See Mot. UMF #12; Resp. at 11-12; Def. Ex. I, Interview w/ Isaiah Curley, 06/27/15 at 19:1-4 (Doc. 29-10); Mot. UMF #7, Resp. at 11. At that gathering, an individual named Marcus Purdue beat up another male guest. See Mot. UMF #7, Resp. at 11. One witness stated that a male individual known as “Runner” pulled a gun out during the altercation, and that “these people said that they're going to drive by on us…” See Mot. UMF #7, Resp. at 11; Def. Ex. E, Interview with Matthew Day at 35:1-12, 36:1-3 (Doc. 29-6). Another witness confirmed that “Runner” was at the Nakomis house the night of the fight and that a gun was pulled. See UMF #11; Resp. at 11; Def. Ex. I, Interview w/ Isaiah Curley, 06/27/15 at 19:1-7, 19-20 (Doc. 29-10). Marcus Purdue, who resided at 1101 Nakomis, confirmed with detectives that he had been in a fight at the house a month ago with someone he guessed was named “Runner.” See Mot. UMF # 8, Resp. at 11; Def. Ex. F, Interview with Marcus Purdue at 4:15-23; 5:17-25 (Doc. 29-7). And on June 28, 2015, Detective Gonterman received a tip that Marcus Purdue was the target of the shooting. See Mot. UMF #14; Resp. at 12; Def. Ex. K, Recorded Call w/ James King at 3:14-17 (Doc. 29-12).

         Bernie Miller was also living at 1101 Nakomis Drive NE and was at the house when Jaydon was killed. Miller told detectives that he thought “David Zamora, Donovan Maez, Chris Marley [a.k.a. Christopher Cruz], all of those kids” were involved in the shooting because there had previously been a brawl at the house and one of their friends was beaten badly - possibly by Marcus. See Mot. UMF #15; Resp. at 12; Def. Ex. L, Interview w/ Bernie Miller at 14:23-15:17 (Doc. 29-13).

         Defendant Gonterman also received three additional tips that she later included in her affidavit. See Def. Ex. C, Maez Criminal Complaint (Doc. 29-4); Def. Ex. B, Cruz Arrest Warrant (Doc. 29-2). One of those tips came from Mariah Madrid who alerted Defendant Gonterman to a Facebook post. Ms. Madrid indicated that she did not personally know Chris Cruz and Donovan Maez, but she had been watching their Facebook accounts because they had allegedly been robbing her friends. Consequently, she noticed a Facebook post after the shooting. See Pl. Ex. 28, Gonterman Depo. at 33:3-17; 34:19-20 (41-16); Pl. Ex. 46, Suppl. Rpt. Mariah Madrid Interview (Doc. 41-33). Defendant Gonterman reviewed Facebook posts by David Zamora (a.k.a. Runner) and Christopher Cruz. See Mot. UMF #16, Resp. at 13. On June 26, 2015, David Zamora posted “Who needs the addy” to which there were responses asking if it was the Chelwood or Western Skies party. See Def. Ex. C, Maez Criminal Complaint (Doc. 29-4); Def. Ex. B, Cruz Arrest Warrant (Doc. 29-2). At 9:35 p.m. also on June 26, 2015, Christopher Cruz posted a picture that displayed a person's lap holding ten rounds of ammunition with the statement “Cooling in my section.” Id. A few hours later at 2:17 a.m., now on June 27, 2015, Cruz posted “Smoking This Fat Ass Joint Tryna Finish bottle of Ciroc Cuzz Nobody Likes a Quitter Lol Kinda Worried About the Brothers tho Hmi Asap #Raw Papers # Fuck the Feds.” Id. This post was followed by several responses from other individuals. Defendant Gonterman included portions of these Facebook posts in her warrant affidavit for Plaintiff Cruz and her criminal complaint for Plaintiff Maez. See Def. Ex. C, Maez Criminal Complaint (Doc. 29-4); Def. Ex. B, Cruz Arrest Warrant (Doc. 29-2); Mot. UMF #17. She noted that “[t]he social media messages are consistent with the timeframe of the shooting, people involved and associates and indicate to me based on my training and experience that they are discreetly talking about the shooting and no one giving anyone up.”[5]Id.

         There were several other individuals involved with the Facebook posts. On June 29, 2015, Defendant Gonterman interviewed William Pagan, one of the individuals who had commented on the posts. See Resp. at 14; Pl. Ex. 8, Suppl. Rpt. William Pagan (Doc. 41-5). Pagan told Defendant Gonterman that he didn't know what the posts were talking about and then added, “They're probably talking about getting into some type of trouble, but they're not shooting nobody[.] Id; Pl. Ex. 28, Gonterman Depo, 64:10-20 (Doc. 41-16). The following day Defendant Gonterman interviewed Devin Griego who also had responded to the Facebook posts. See Pl. Ex. 7, Suppl. Rpt. Devin Griego (Doc. 41-4). Referencing the chain of Facebook posts beginning with Plaintiff Cruz's post, Defendant Gonterman told Griego that she understood the post to indicate that everyone was talking about the “shooting at Jaydon's, retaliation from the fight.” Id. Griego responded, “That's a whole different thing probably, like honestly. I mean, you can try to say it's related to that but it's not.” Id. Defendant Gonterman did not interview Allen Moya who had also commented on the Facebook posts. See Pl. Exhibit 28, Gonterman Depo. at 68:21-69:1 (Doc. 41-16).

         The second “tipster” Defendant Gonterman referred to in her affidavit was Nicholas Glenn, Donovan Maez's friend. On August 11, 2015, Defendant Gonterman interviewed Glenn. See Def. Ex. M, Transcript of Glenn Interview (Doc. 29-14); Def. Ex. M-1, Audio Recording of Glenn Interview. Glenn reported to Defendant Gonterman that he overheard a conversation that Donovan Maez had with another individual about the Jaydon Chavez-Silver case. See Pl. Ex. 28, Gonterman Depo. at 79:13-21; Def. Ex. M-1, Audio Recording of Glenn Interview. Glenn told Defendant Gonterman that Glenn was at the 1101 Nakomis Drive residence when the shooting occurred. See Mot. UMF 20, Resp. ¶ 20, Def. Ex. M, Transcript of Glenn Interview at 6:5-8 (Doc. 29-14). Defendant Gonterman asked Glenn if he knew the identity of the shooter, who was there, and what type of car the shooter was in. See Def. Exhibit M, Transcript of Glenn Interview at 8:11-8:13 (Doc. 29-14). Glenn responded “I don't know cars. I don't know shooters. I know - I know Donovan, Donovan Maez, Maez, whatever…Fucking kid. He was involved somehow. I don't know.” See Id. at 8:14-19. Glenn proceeded to explain that he had gone to his friend Armand's house, walked in on Armand and Donovan talking, and overheard Donovan “saying he was freaking out because they'd ‘shotten' at a house.” Id. at 8:19-9:1. Glenn stated that he asked Armand about the conversation. According to Glenn, Armand responded that Donovan knows who did it. Id. at 9:2-5. Glenn continued, “But I'm not sure if that's implying Donovan did it, because I heard Donovan say he was in the car.” Id. at 9:6-8.[6] Later in the conversation Glenn reiterated, “He just said he was in the car…I'm not sure if that's implying he was in the car at the shot, because I never-I didn't talk to him about it…I just heard him say that he was in the car and shit started going down and that they were trying to hit Curley.” Id. at 23:11-21. When asked if Donovan said anything about his bullet being the one that killed Jaydon, Glenn answered: “I don't know. He's -I'm pretty - he's freaked - that's what he was freaking out about, is that he was scared that his bullet's the one that hit Jaydon[.]” See Mot. UMF #23; Response at 20; Def. Exhibit M, Transcript of Glenn Interview at 26:21-27:2 (Doc. 29-14). Defendant Gonterman never interviewed Armand. Resp. ¶ 22; Reply at 6-7. Defendant Gonterman included information from her interview with Glenn in the criminal complaints for both Plaintiffs, referring to Glenn as Concerned Citizen #1 or “CC.” See Def. Ex. C, Maez Criminal Complaint (Doc. 29-4); Def. Ex. B, Cruz Arrest Warrant (Doc. 29-2); Mot. UMF #24.

         On August 14, 2015, Defendant Gonterman interviewed Drew Dugger, another of Donovan Maez's friends, at the Albuquerque Police Department. See Mot. UMF #25, 28; Resp. ¶¶ 25, 28; Def. Ex. N, Dugger Interview Transcript (Doc. 29-15); Pl. Ex. 4, Dugger Interview Transcript (Doc. 41-3). At the time of his interview, Dugger was in custody on an unrelated arrest warrant. See Mot. UMF #29; Resp. ¶ 29. After receiving Miranda warnings, Dugger initially denied knowing anything about Jaydon Chavez-Silver's shooting and Plaintiffs' alleged involvement with the incident. See Mot. UMF #33; Resp. ¶ 33; Pl. Ex. 4, Dugger Interview Transcript at 13:17-20 (Doc.41-3); Pl. Ex. 28, Gonterman Depo, at 200:24-201:2 (41-16). At one point during the interview Defendant Gonterman said to Dugger, “Look at me. I'm not messing around today. I'm not going to let you lie to me. I'm not going to have it. Because I will just…you know, we'll end this and you can go to jail.” See Mot. UMF #31, Resp. ¶ 31; Def. Ex. N, Dugger Interview Transcript at 27:24-28:3 (Doc. 29-15).

         Sometime after Defendant Gonterman's statement, Dugger recounted that Maez told him that Maez was driving around on the night of Jaydon Chavez-Silver's death with Cruz testing out the new TEC-9 or .40 Glock. See Mot. UMF # 36, Resp. ¶ 36. Dugger stated, “They told me - they told me they were - they were just shooting, and Jaydon got hit. They weren't - they weren't trying to hit him. They weren't trying to shoot him.” See Mot. UMF #37, Resp. ¶ 37, Def. Ex. N, Dugger Interview Transcript at 61:25-62:3 (Doc. 29-15). Dugger also claimed that Cruz called someone at the Nakomis party and then “slid on him.”[7] See Mot. UMF #39, Resp. ¶ 39; Def. Ex. N, Dugger Interview Transcript at 66:23-67:10. When questioned about motive, Dugger first offered, “I - they - from what they told me, they were just driving down the street shooting, just shooting the new gun. There wasn't really no motive, or anything.” See Resp. ¶ 33; Pl. Ex. 4, Dugger Interview Transcript at 33:112-16 (Doc. 41-3). Much later in the interview when pressed again about motive, Dugger revealed that he thought Bernie Miller or another individual owed Cruz money. See Mot. UMF #34, Resp. ¶ 34, Def. Ex. N, 133:12-20 (Doc. 41-3). As the result of a search warrant, Defendant Gonterman discovered a text message on Bernie Miller's phone indicating that he owed someone money, but that person was not identified in the text message. See Mot. UMF #35, Resp. ¶ 35, Def. Ex. P - Cell Phone Extraction Report (Doc. 29-17). Dugger told Defendant Gonterman that Cruz had a light tan Nissan, and Dugger later accompanied Albuquerque Police Department Detective David Nix to the apartment complex where Cruz was staying. At that location Detective Nix observed in the parking lot a light tan Nissan Maxima registered to Christopher Cruz's brother Anthony. See Mot. UMF #41, 42; Resp. ¶¶ 41-42; Def. Ex. N., Dugger Interview Transcript, 75:10-76:22 (Doc. 29-15); Def. Ex. Z, Affidavit of Jodi Gonterman (Doc. 29-26). Defendant Gonterman included information from her interview with Dugger in the criminal complaints as to both Plaintiffs, referring to Dugger as Concerned Citizen (CC) #2. See Def. Ex. B, Cruz Arrest Warrant (Doc. 29-2); Def. Ex. C, Maez Criminal Complaint (Doc. 29-4); Mot. UMF #43; Resp. ¶ 43.

         On August 14, 2015, Defendant Gonterman interviewed Plaintiff Donovan Maez at the Albuquerque Police Department. Maez was in police custody on an outstanding warrant for auto burglary. See Mot. UMF #44, Resp. ¶ 44; Def. Ex. R, Warrant for Arrest (Doc. 29-19). Plaintiff Maez told Defendant Gonterman that around 10:00 or 10:30 p.m. on the night of Jaydon's shooting, he, Cruz, and ten others were “pregaming” at their friend's house. See Mot. UMF #45-46; Resp. ¶¶ 45-46; Def. Ex. Q, Donovan Maez Interview Transcript at 14:1-4, 19:16-23 (Doc. 29-18). At the end of the interview, Defendant Gonterman stepped out of the interview room and later returned to tell Maez that she spoke with the District Attorney and had enough to book him for Jaydon's murder. See Def. Ex. Q, Maez Interview Transcript at 39:17-25 (Doc. 29-18). Defendant Gonterman drafted a criminal complaint for Maez's arrest charging him with an open count of murder, among other criminal offenses. See Mot. UMF # 49; Resp. ¶ 49. Maez was arrested on the outstanding auto burglary warrant and then charged with Jaydon's murder in accordance with the criminal complaint. See Mot. UMF #55, Resp. ¶ 54.

         Defendant Gonterman also drafted an affidavit requesting an arrest warrant for Christopher Cruz. See Mot. UMF # 51, Resp. ¶ 51. Assistant District Attorney Sarah Coffey first reviewed the warrant affidavit. Coffey initially determined that there was insufficient evidence to support probable cause. See Pl. Ex. 30, Depo. of Sarah Coffey at 36:2-9 (Doc. 41-18). However, ADA Coffey approved the warrant affidavit when Detective Gonterman disclosed that witnesses had seen a “white car of some kind” and that “one of the individuals owned a similar white car to the witness statement…that tipped it in favor of having probable cause.” See Pl. Ex. 30, Depo of Sarah Coffey at 36:14-24. Judge Linda Rogers then also reviewed the warrant application and approved the issuance of an arrest warrant for Christopher Cruz. See Mot. UMF #52-53, Resp. ¶¶ 52-53. On August 17, 2015, Christopher Cruz turned himself in on the arrest warrant. See Mot. UMF #55, Resp. ¶ 55.

         B. Post-Arrest Proceedings

         On August 19, 2015, Defendant Gonterman conducted a brief telephone interview with Plaintiffs' friend David Garcia. See Resp. AMF # EE, FF; Pl. Ex. 22, Garcia Suppl. (Doc. 41-14). Garcia corroborated Maez's claim that he and Cruz were with Garcia at the time of Jaydon's murder, that the group first “pregamed” at Garcia's house, and then went to a party on Western Skies. See Resp. AMF #GG; Pl. Ex. 22, Garcia Suppl. (Doc. 41-14). Garcia stated that he was with Cruz and Maez until around 1:00 a.m. when shots were fired into the air at the Western Skies location. Id. Garcia also informed Defendant Gonterman that Cruz was driving a red car that night. See Resp. AMF # HH, Pl. Ex. 22, Garcia Suppl. (Doc. 41-14). Defendant Gonterman believed Garcia was lying. See Resp. AMF #OO, Pl. Ex. 28, Gonterman Depo at 212:7-8 (Doc. 41-6).

         On August 20, 2015, Defendant Gonterman again interviewed Nicholas Glenn, Concerned Citizen #1, after he reached out to Defendant Gonterman indicating that he wanted to speak with her. See Pl. Ex. 15, 08/20/15 Glenn Interview Transcript at 1:20-23 (Doc. 41-7); Resp. ¶ 20; Reply at 6. Glenn admitted that he had lied during the first interview and said that he never made it to the Nakomis house party on the night Jaydon was shot. See Resp. ¶ 20; Reply at 6; Pl. Ex. 15, 08/20/15 Glenn Interview Transcript at 3:7-10 (Doc. 41-7). Glenn stated that he was at a friend's house “partying” and they were about to leave when they heard about what had happened to Jaydon. See Pl. Ex. 15, 08/20/15 Glenn Interview Transcript at 3:10-23. Glenn reported that it was the day after the incident that he went to Armand's house and heard Maez say that he was freaking out. See Id. at 3:25-4:1. Glenn reiterated what he had disclosed during the first interview with Defendant Gonterman, that he had walked into his friend Armand's house and had overheard a conversation Maez was having with Armand. See Id. at 14:2-9. Glenn stated, “I just heard Donovan like freaking out, saying that he didn't know what hit what, and that he was just freaking about it.” See Id. at 8-13. When Glenn asked Maez what he was talking about, Maez confirmed he was talking about the “drive-by.”[8] See id.

         On August 21, 2015, four days after Plaintiff Cruz was arrested, his mother Yolanda Gutierrez called Defendant Gonterman regarding the Nissan. See Resp. ¶¶ 41, Pl. Ex. 21, Gutierrez Supp. (Doc. 41-13). Ms. Gutierrez informed Defendant Gonterman that the car Detective Nix had observed in the apartment complex parking lot was registered to an Anthony Garcia, not Cruz's brother Anthony Cruz. Id. Ms. Gutierrez informed Defendant Gonterman that her older son Anthony lived with his girlfriend and the white Nissan belonged to the girlfriend and had not run in months - a fact the neighbors could confirm. See Resp. ¶ 41; Pl. Ex. 21, Gutierrez Suppl.

         On August 27, 2015, Defendant Gonterman testified before a grand jury. See Pl. Ex. 32, Grand Jury Transcript (Doc. 41-20). She indicated that she took Donovan Maez into custody because she had information at the time from a “credible, reliable source who had given other specific details in the case.” See Pl. Ex. 32, Grand Jury Transcript at 32:23-33:2 (Doc. 41-20). The grand jury returned indictments charging Donovan Maez, Christopher Cruz, and Nicholas Gonzales. See Id. at 65:1-23. Prior to Plaintiffs' arrest, Defendant Gonterman had received a tip that Nicholas Gonzales was the shooter. See Resp. AMF # G; Pl. Ex. 35, CC#4 Suppl. (Doc. 41-23). Defendant Gonterman further learned that Gonzales had removed his GPS ankle monitor at 3:00 p.m. on the day Jaydon was killed. See Resp. AMF # J; Pl. Ex. 28, Gonterman Depo. at 171:13-24 (Doc. 41-16). Defendant Gonterman also had information that Gonzales was arrested sixteen days after Jaydon's murder while driving his mother's bronze Nissan Maxima, at which time he was in the unlawful possession of a firearm. See Resp. AMF #I; Pl. Ex. 16, Rio Rancho Police Report (Doc. 41-8); Pl. Ex. 28, Gonterman Depo. at 172:17-173:11 (Doc. 41-16).

         On June 2, 2016, the District Attorney's office dismissed the charges against Plaintiffs Maez and Cruz related to Jaydon Chavez-Silver's murder. See Mot. ¶¶ 56-57; Resp. ¶¶ 56; Def. Ex. U, Cruz Nolle Prosequi (Doc. 29-22); Def. Ex. V, Maez Nolle Prosequi (Doc. 29-23). Nicholas Gonzales ultimately pleaded guilty to shooting at an occupied dwelling resulting in great bodily harm and conspiracy to commit shooting at a dwelling. See Pl. Ex. 41, Gonzales Judgment & Sentence (Doc. 41-29).

         Plaintiffs filed a complaint under 42 U.S.C. § 1983 alleging violations of their Fourth and Fourteenth Amendment rights and several intentional torts under the New Mexico Tort Claims Act, NMSA 1978, § 41-4-12. See Amended Complaint at 1 (Doc. 16). Count I alleges that Defendant Gonterman seized, arrested, and detained both Plaintiffs absent probable cause to believe each had committed a crime. Id. at ¶¶ 319-328. Count II alleges that Defendant Gonterman committed malicious prosecution by manufacturing evidence which she knew was false or for which she was deliberately indifferent to the truth and by making material omissions leading to Plaintiffs' prosecutions absent probable cause. Id. at ¶¶ 329-344. Count III alleges state law tort claims against both Defendant Gonterman and Defendant City of Albuquerque. Id. at ¶¶ 345-351. In Defendants' Motion they rely on qualified immunity as an affirmative defense against Counts I and II and assert that immunity is not waived under the New Mexico Tort Claims Act as to Count III.


         Because Defendants have asserted qualified immunity as to Plaintiffs' federal claims, the burden shifts to Plaintiffs to (1) assert facts that, if true, would constitute a violation of their constitutional rights, and (2) demonstrate that the right violated was clearly established at the time such that Defendants would have known their conduct violated Plaintiffs' rights. See Wilson v. Falk, 877 F.3d 1204, 1209 (10th Cir. 2017). “When determining whether qualified immunity applies, [the Court] may choose which of the two prongs of the qualified immunity analysis should be addressed first.” Id. (internal quotation marks and citation omitted).

         I. Defendants' Motion for Summary Judgment on Plaintiffs' Section 1983 Claim for Illegal Seizure and Arrest (Count I)

         Section 1983 provides that “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage…subjects, or causes to be subjected, any citizen…or any other person…to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured[.]” 42 U.S.C. § 1983. The Fourth Amendment of the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” Both Plaintiffs claim that Defendant Gonterman violated their Fourth Amendment rights by seizing, arresting, and detaining them for the murder of Jaydon Chavez-Silver without probable cause. See Amended Complaint at 36-39 (Doc. 16).

         In a qualified immunity context, the probable cause evaluation is a question of law for the Court to resolve. See Hunter v. Bryant, 502 U.S. 224, 227-28 (1991) (overturning a circuit court decision that left probable cause to the trier of fact in an immunity context and reaffirming that immunity ordinarily should be decided by the court long before trial because qualified immunity is an entitlement to immunity from suit rather than a defense to liability). “[A]n arrest is valid and does not violate the Fourth Amendment if the warrant underlying it was supported by probable cause at that time of its issuance; this holds true even if later events establish that the target of the warrant should not have been arrested.” Beard v. City of Northglenn, Colo., 24 F.3d 110, 114 (10th Cir. 1994). “Probable cause for an arrest warrant is established by demonstrating a substantial probability that a crime has been committed and that a specific individual committed the crime.” Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir. 1996).

         Generally, a neutral magistrate judge's issuance of a warrant “is the clearest indication that the officers acted in an objectively reasonable manner or…in objective good faith.” Messerschmidt v. Millender, __ U.S.__, 132 S.Ct. 1235, 1245 (2012) (internal quotation marks and citation omitted). However, a court will not grant qualified immunity “where the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Id. (internal quotation marks omitted). Moreover, a warrant will not protect an officer who “knowingly…, or with reckless disregard for the truth” includes false statements in the affidavit, Franks v. Delaware, 438 U.S. 154, 155-56 (1978), or who “knowingly or recklessly omit[s] from an arrest affidavit information which, if included, would have vitiated probable cause, ” Stewart v. Donges, 915 F.2d 572, 582-83 (10th Cir. 1990). “The burden is on the plaintiff to make a substantial showing of deliberate falsehood and reckless disregard for the truth by the officer seeking the warrant.” Stonecipher v. Valles, 759 F.3d 1134, 1142 (10th Cir. 2014). The test is objective, allowing the Court to determine, as a matter of law, whether a reasonable officer could have found probable cause where there is no dispute over material facts. See Id. The Court will address the arrests of each Plaintiff separately.

         A. Probable Cause to Arrest Donovan Maez

         The Court begins by asking whether Defendant Gonterman had probable cause to arrest Donovan Maez. The parties do not dispute that Defendant Gonterman had knowledge of and arrested Plaintiff Maez on an outstanding warrant for auto burglary in violation of NMSA 1978, § 30-16-3B and that he was afterwards charged with Jaydon Chavez-Silver's murder. Nor have Plaintiffs challenged the probable cause underlying that outstanding auto burglary warrant. Auto burglary under New Mexico statute is a fourth-degree felony with a potential penalty of eighteen months of imprisonment. See NMSA 1978, § 31-18-15 (A)(13). On May 24, 2017, Maez pleaded no contest to the charge and received a suspended sentence of eighteen months with 244 days of presentence confinement credit for the time he was incarcerated. See Def. Ex. X, Plea and Disposition Agreement; Def. Ex. Y, Maez State Court Judgment. Defendants argue that because Detective Gonterman had, from an objective standpoint, independent probable cause to arrest Plaintiff Maez on the outstanding warrant for auto burglary, his Section 1983 claim for illegal seizure and arrest (Count I) and his claim of malicious prosecution (Count II) must fail. Plaintiffs counter that while Plaintiff Maez was initially arrested on a valid warrant, he was held continuously without legal process on the murder charge for which there was no probable cause.[9]

         The Court will address the malicious prosecution claim below, but finds, as a matter of law, that Defendant Gonterman had probable cause to seize, arrest, and detain Plaintiff Maez on the outstanding warrant even though the auto burglary charge was unrelated to the later murder charge. In Devenpeck v. Alford, 543 U.S. 146, 152-53 (2004), the United States Supreme Court clarified that an arrest is lawful under the Fourth Amendment so long as probable cause existed as to any offense that could be charged. “[A]n arresting officer's state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause. That is to say, his subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.” Devenpeck, 543 U.S. at 153 (citations omitted); see also Apodaca v. City of Albuquerque, 443 F.3d 1286, 1289 (10th Cir. 2006) (“All that matters is whether [the law enforcement official] possessed knowledge of evidence that would provide probable cause to arrest her on some ground.” (emphasis original)); Kilgore v. City of Stroud, 158 Fed.Appx. 944 (10th Cir. 2005) (“Probable cause need only exist as to any offense that could be charged under the circumstances.” (internal quotation marks and citation omitted)). Because Plaintiffs have not met their burden to establish that probable cause did not exist to arrest Plaintiff Maez, the Court does not reach the clearly established law prong of the qualified immunity analysis. The Court will grant summary judgment in Defendants' favor as to Plaintiff Maez's claim of illegal seizure and arrest in Count I of the Amended Complaint.

         B. Arrest of Plaintiff Christopher Cruz

         To overcome the validity of an arrest warrant, Plaintiff Cruz must prevent evidence either that Defendant Gonterman knew that the information in the arrest warrant affidavit was false or that she “in fact entertained serious doubts as to the truth of [her] allegations” but still sought the warrant in reckless disregard for the truth. Beard v. City of Northglenn, 24 F.3d 110, 114, 116 (10th Cir. 1994). Reckless disregard for the truth may be inferred “from circumstances evincing obvious reasons to doubt the veracity of the allegations.” Id. Plaintiff Cruz alleges in part under Franks v. Delaware, 438 U.S. 154 (1978) that probable cause did not support the arrest warrant because Defendant Gonterman's warrant affidavit contained material misstatements and omissions. Plaintiff Cruz specifically contends that Defendant Gonterman: (1) failed to conduct a competent pre-arrest investigation; (2) relied on coerced false statements from Drew Dugger and Nicholas Glenn and a tip from Mariah Madrid about a Facebook post, though Ms. Madrid had no firsthand knowledge of the incident; and (3) withheld material facts from the assistant district attorney and the judge.

         1. Failure to Conduct a “Minimally Competent Investigation”

         Plaintiff Cruz first contends that Defendant Gonterman's investigation of Jaydon Chavez-Silver's murder “failed even the most basic tests for a minimally competent police investigation” necessary to develop probable cause that Plaintiffs killed Jaydon by shooting into the Nakomis house. (Doc. 41 at 50). Specifically, Plaintiff Cruz argues that: Defendant Gonterman failed to interview Allen Moya, a third individual who commented on the Facebook posts the night Jaydon was killed; failed to interview Plaintiffs' alibi witnesses; failed to interview Nicholas Gonzales' alleged alibi witness; failed to interview Armand VanDyke to verify information Nicholas Glenn shared regarding VanDyke's conversation with Plaintiff Maez; failed to corroborate Devin Griego's alleged alibi; failed to investigate an alleged “shots fired” incident at the Western Skies party; and failed to investigate Plaintiffs' alibi and verify their locations at the time of Jaydon's shooting through cellphone records or cell phone tower data. Plaintiffs also maintain that Defendant Gonterman failed to properly investigate Nicholas Gonzales' possible involvement in Jaydon's murder, including the facts surrounding Gonzales' arrest in Rio Rancho.[10]

         Perhaps Defendant Gonterman could have done more, “[b]ut for purposes of qualified immunity, [Defendants] needed merely to show arguable probable cause to satisfy the Fourth Amendment's reasonableness requirement.” Harte v. Bd. of Comm'rs of Cnty. of Johnson, Kansas, 864 F.3d 1154, 1178 (10th Cir. 2017); see also Stonecipher, 759 F.3d at 1141 (“Arguable probable cause is another way of saying that the officers' conclusions rest on an objectively reasonable, even if mistaken, belief that probable cause exists.”). And “[t]he failure to investigate a matter fully, to exhaust every possible lead, interview all potential witnesses, and accumulate overwhelming corroborative evidence rarely suggests a knowing or reckless disregard for the truth.” Beard, 24 F.3d at 116 (internal quotation marks and citation omitted). “To the contrary, it is generally considered to betoken negligence at most.” Id. (emphasis in original). The probable cause standard also does not require officers to correctly resolve conflicting evidence or to make accurate credibility determinations. See Wright v. City of Philadelphia,409 F.3d 595, 603 (3d Cir.2005) (“The officers did not believe Wright's explanation for her entry [into the residence]. Although they may have made a ...

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