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Dalton v. Town of Silver City

United States District Court, D. New Mexico

March 7, 2019

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,


         THIS 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 DENIED.


         These 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 constitutional rights.

         On 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.

         Silver 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.


         A 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 citations omitted).

         Cross-motions 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).


         The 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.

         I.SCPD Domestic Violence Policy, Practice, and Training.

         Chief 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.

         SCPD 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.

         In 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%.

         Plaintiff 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 policy.

         II. SCPD's Internal Investigations Policy.

         Chief 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.

         Chief 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 information.

         III. Hiring and Retention of Cpt. Contreras.

         In 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 hired him.

         In 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 investigate.

         IV. Ms. Bascom's Murder.

         A. Ms. Bascom's Son's March 9, 2016 call.

         On 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 bruise.

         Dispatch 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 2016.

         Sgt. 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.

         B. March 25 and March 28, 2016.

         On 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.

         C. April 21, 2016.

         Cpt. 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.”

         Ms. 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.

         Cpt. 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.

         At the 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.

         Chief 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”).[2] Chief Reynolds did not inquire whether Cpt. Contreras had any other weapons when he put him on leave but assumed he did.

         Chief 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.

         On her 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.

         Later, 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 ...

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