United States District Court, D. New Mexico
KARRI DALTON, as the personal representative of the Estate of Nikki Bascom, And Next Friend to M.B., a minor Child, and A.C., a minor child, Plaintiff,
TOWN OF SILVER CITY, GRANT COUNTY, CHIEF ED REYNOLDS, CAPTAIN RICKY VILLALOBOS, THE ESTATE OF MARCELLO CONTRERAS, DEPUTY JACOB VILLEGAS, SGT. FRANK GOMEZ, AND DETECTIVE ADAM ARELLANO, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART SILVER CITY DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT and DENYING PLAINTIFF'S MOTION FOR
PARTIAL SUMMARY JUDGMENT
MATTER comes before the Court upon Defendants Town of Silver
City's, Chief Ed Reynolds', and Captain Ricky
Villalobos' Motion for Summary Judgment as to Equal
Protection and Due Process Claims, filed on July 18, 2018
(Doc. 59), and Plaintiff's Motion for
Summary Judgment as to Count VI, filed July 24, 2018
(Doc. 63). Having reviewed the parties'
pleadings and the applicable law, the Court finds that
Defendants' motion is well-taken in part and, therefore,
is GRANTED IN PART AND DENIED IN PART, and
Plaintiff's motion is not well-taken and, therefore, is
claims arise out of Nikki Bascom's murder by her
ex-boyfriend, Silver City Police Department
(“SCPD”) Captain Marcello Contreras. Based on the
events of the morning of April 21, 2016 and several incidents
in the preceding months, the Silver City Defendants initiated
an internal investigation of Cpt. Contreras and placed him on
leave but declined to criminally investigate him. Later in
the afternoon of April 21, Captain Contreras shot and killed
Ms. Bascom, and then himself. Plaintiff alleges that the
Defendants treated Ms. Bascom differently from other domestic
violence victims and otherwise violated Ms. Bascom's
behalf of Ms. Bascom's estate and her minor children,
Plaintiff filed this case under 42 U.S.C. § 1983 and the
New Mexico Tort Claims Act, alleging the following relevant
claims against the Silver City Defendants:
Count VI: Equal Protection against Chief Reynolds, Captain
Villalobos and the Town of Silver City; and Count VIII:
Substantive Due Process against Reynolds, Captain Villalobos,
and the Town of Silver City.
City Defendants filed a motion for summary judgment on the
above claims and asserted qualified immunity for the
individual Defendants on the Equal Protection and Substantive
Due Process claims (Counts VI and VIII). Plaintiff filed a
motion for partial summary judgment on the Equal Protection
claim as to the Town of Silver City.
motion for summary judgment is appropriate when there is no
genuine issue of material fact, and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 330
(1986). “[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material
fact.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986). As the Tenth Circuit has explained,
“mere assertions and conjecture are not enough to
survive summary judgment.” York v. AT&T,
95 F.3d 948, 955 (10th Cir. 1996). To avoid summary judgment,
a party “must produce specific facts showing that there
remains a genuine issue for trial and evidence significantly
probative as to any [material] fact claimed to be
disputed.” Branson v. Price River Coal Co.,
853 F.2d 768, 771-72 (10th Cir. 1988) (quotation marks and
for summary judgment are to be considered independently. The
fact that both parties have moved for summary judgment does
not permit the entry of a summary judgment if disputes remain
as to material facts. See Buell Cabinet Co. v.
Sudduth, 608 F.2d 431, 433 (10th Cir. 1979).
Cross-motions for summary judgments, however, do authorize a
court to assume that there is no evidence which needs to be
considered other than that which has been filed by the
parties. See Harrison W. Corp. v. Gulf Oil Co., 662
F.2d 690, 692 (10th Cir.1981) (citations omitted).
Court has reviewed the parties' assertions of facts and
records supporting them. Although the parties raised many
disputes, these disputes are generally not genuine.
Rather, the parties generally argue that each other's
facts are incomplete, don't tell the whole story, or
object to the characterization of the record. The facts cited
below are well-supported in the record.
Domestic Violence Policy, Practice, and
Reynolds has been the SCPD chief since approximately 2005.
Chief Reynolds is the policy maker for SCPD. SCPD's
Domestic Violence policy requires officers to “view
domestic violence as a serious crime… take a proactive
response to safeguard victim's rights, provide victim
assistance and use arrest as a deterrent to future
violence.” Doc. 63-2, p. 1. Chief
Reynolds agrees that any allegation of domestic violence is a
matter of serious concern. In domestic violence cases, SCPD
officers are required to “make an arrest if the officer
has probable cause to believe that the person has committed
or is committing any crime. Arrest is the preferred response
to family violence because arrest offers the greatest
potential for ending the violence.” Doc. 63-2,
p.2. The “[r]efusal of the victim to sign an
official complaint against the offender shall not prevent,
nor shall it be a consideration, in an officer's decision
to arrest.” Id. “When a
domestic violence crime has occurred, ONLY with extenuating
circumstances and the Watch Commander's approval will an
arrest not be made. In that instance, a written police report
will be made articulating the specific reasons why an arrest
was not made.” Doc. 63-2, p. 2.
officers learn in their training that it “is very
important whenever you have enough to make an arrest to make
an arrest.” Doc. 49-12 at 9:17. SCPD
officers are also instructed to get an emergency protection
order an arrest warrant as soon as possible if “for
some reason the individual is not there to be able to effect
an arrest.” Doc. 49-12 at 9:17. When a
call does not result in an arrest, SCPD officers are trained
to document the call in a verbal tracking system to protect
both victims and officers. SCPD officers also document all
domestic violence calls in the CAD system.
2015, 137 domestic violence calls resulted in 101 arrests by
SCPD officers, for an arrest rate of 74%. In 2016, the year
Ms. Bascom was killed, 149 domestic violence calls resulted
in 140 arrests by SCPD officers, for an arrest rate of 94%.
cited to eight cases of SCPD officers treating similarly
situated domestic violence victims differently from Ms.
Bascom. See Doc. 77,
Plaintiff's UMF U-X. Generally, SCPD
officers either arrested at the scene, signed a criminal
complaint, or sought an arrest warrant where, as here, the
assailant (1) pulled a victim over by swerving in front of
her car or (2) pulled a cell phone out of the victim's
hand. See Plaintiff's UMF U, V,
W. Moreover, officers have interviewed all parties
and arrested domestic violence offenders in relatively minor
disputes. Plaintiff's UMF X. SCPD
officers have also arrested and charged domestic violence
suspects even over victim's objections, as mandated by
SCPD's Internal Investigations Policy.
Reynolds approved SCPD's Internal Investigation Policy.
That policy mandates that serious criminal allegations
against an officer be referred to an outside agency. There
are no provisions for when to arrest an SCPD officer. As to
minor allegations, the department has the discretion to refer
the matter to an outside agency or proceed to an
administrative action. When alleged misconduct is “of a
serious nature”, the complaint is forwarded to Chief
Reynolds. Doc. 56-7, p.2.
Reynolds said that the purpose of the referral to outside
agencies is to “keep it clean.” When SCPD makes a
referral, it only provides the name of the complainant and
the alleged criminal violation. SCPD refuses to provide any
other information in the internal investigation file. For
example, SCPD does not disclose any witnesses or any other
Hiring and Retention of Cpt. Contreras.
1999, Contreras' then-wife reported to SCPD that
Contreras had threatened to shoot her while holding a gun
because he believed she was cheating on him. Contreras
admitted to pushing his wife but denied threatening her. SCPD
charged him with battery on household member. In 2001, SCPD
2003, SCPD criminally investigated allegations that then
Officer Contreras had sexually abused a child. SCPD found the
allegations to be unsubstantiated. After Ms. Bascom's
murder, SCPD received a S.D. memory card that contained
apparent child pornography, including images of 12 to
13-year-old girls undressing and pictures of Cpt. Contreras.
SCPD provided the S.D. card to New Mexico State Police to
Ms. Bascom's Murder.
Ms. Bascom's Son's March 9, 2016
March 9, Ms. Bascom's son called 911 to report that Cpt.
Contreras and Ms. Bascom were in an argument and that
Contreras threatened to shoot himself. Sgt. Arredondo of SCPD
and two other officers responded. Ms. Bascom handed them a
handgun she had taken from Contreras and told him that
“[Contreras] has gone crazy and wants to kill
himself.” Doc. 59, UMF 4. Ms. Bascom
said that Contreras had been drinking heavily for two days.
He had alcohol on his breath and had bloodshot, watery eyes.
Sgt. Arredondo allowed Contreras to back up his truck in the
driveway. Sgt. Arredondo is “one of the number one DWI
go-getters that makes most of [SCPD's] DWI
arrests.” Though SCPD officers are trained to interview
the 911 caller, the officers on scene did not interview Ms.
Bascom's son. Ms. Bascom had bruises that night. It is
genuinely disputed whether any officer knew about or saw that
initially classified the call as a “domestic
disturbance”. Minutes later, the call type was changed
to a “welfare check” at the request of one of the
responding officers. The dispatcher says the only reason the
call type was changed was to protect Contreras. This made it
more difficult for agencies to detect a history of domestic
violence at the residence. This was the only domestic
disturbance call type that had been changed from 2008 to
Arredondo reported the domestic disturbance incident to Chief
Reynolds. Chief Reynolds met with Contreras and suggested he
take advantage of the employee assistance program. Contreras
was not charged with domestic violence, refusal to obey an
officer, or DWI as a result of the March 9 call. Moreover, no
officer completed a verbal tracking form, which are required
and used so officers are aware of volatile situations.
March 25 and March 28, 2016.
March 25, Ms. Bascom called Chief Reynolds to report that
Contreras had followed her and harassed Dr. Nelson at
Walgreens. She asked Chief Reynolds to get Contreras to stop
harassing Dr. Nelson. No. officer documented the incident in
a verbal domestic violence form, conducted an internal
investigation or referred the matter to an outside agency.
Chief Reynolds contacted Contreras and told him to
“knock it off” and that any further incidents
would impact his job. Chief Reynolds met with Contreras on
March 28 and promoted Contreras to acting Captain due to a
vacancy and gave him a 5% raise.
April 21, 2016.
Contreras, while on duty, carrying his service weapon, and
driving an SCPD car, stopped Ms. Bascom by swerving in front
of her car. He took her cell phone when she tried to call
911. Cpt. Contreras then went to Dr. Nelson's home and
said “I'm telling you right now you haven't
seen the last.”
Bascom went to SCPD to report the incident to Chief Reynolds.
She said that Contreras was harassing her and took her phone.
Chief Reynolds said at that time he could not get her to say
more, which was “disconcerting” because he knew
her to be “very vocal”. Chief Reynolds sent Cpt.
Villalobos to Dr. Nelson's home to ensure he was safe.
Cpt. Villalobos called Chief Reynolds and told him Cpt.
Contreras had reportedly threatened Dr. Nelson.
Villalobos returned to SCPD to take a statement from Ms.
Bascom, who was still at the police station. Cpt. Villalobos
warned Ms. Bascom she could be charged with false reporting.
Ms. Bascom told Cpt. Villalobos that (1) Cpt. Contreras
stopped her while driving by pulling his car quickly in front
of hers and forcing her to the side of the road; (2) Cpt.
Contreras reached into her car and grabbed her phone out of
her hands when she was calling 911; (3) she referred to Cpt.
Contreras as her boyfriend but also said they were no longer
together; (4) she had changed the locks on her home and he
did not have a key.
same time, Chief Reynolds was meeting with Cpt. Contreras in
Ms. Bascom's home to notify him that he was being placed
on administrative leave and took his service weapon. He put
Cpt. Contreras on leave because he had stopped her while he
was on duty and taken her phone and also because he was
alleged to have threatened Dr. Nelson. Cpt. Contreras
admitted that he was angry; that he had followed Dr. Nelson
and Ms. Bascom that morning; that he had pulled over Ms.
Bascom and confronted her; and that he had grabbed her phone
and left. He said he had also gone to Dr. Nelson's house
and confronted him too.
Reynolds stated that he believed Cpt. Contreras' actions
“could constitute a criminal act” and a complaint
could have been filed against him. Doc. 77, UMF zzz;
Doc. 63-1, p. 134, at 15-16 (“A complaint
could have been filed”). Chief Reynolds did not inquire
whether Cpt. Contreras had any other weapons when he put him
on leave but assumed he did.
Reynolds returned to the department and recounted the meeting
to Ms. Bascom. She was angry that he left Cpt. Contreras in
her home “with all those guns.” Cpt. Villalobos
told Chief Reynolds that she had reported Cpt. Contreras took
the phone from her hand. Chief Reynolds says he intended to
refer Cpt. Contreras' phone theft and potential false
imprisonment to an outside agency, but neither he nor anyone
at SCPD got around to it before Ms. Bascom was killed.
way home, Ms. Bascom called 911 to report that Cpt. Contreras
was following her. GSCD officers responded and spoke to both
of them. Chief Reynolds called GCSD Sgt. Gomez at 12:43 p.m.
Though Chief Reynolds knew that GCSD officers were at
Nikki's home, neither Chief Reynolds nor anyone else with
SCPD contacted them to tell them about his prior conduct.
on her way to the domestic violence shelter, she called 911
to report that Cpt. Contreras was following her there, too.
She checked in to the domestic violence shelter at around
1:45 p.m. Cpt. Villalobos called GCSD Sgt. Gomez at 2:09 p.m.
and the two ...