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Romero v. City of Clovis

United States District Court, D. New Mexico

May 31, 2019

DELLIA ROMERO, Plaintiff,
v.
CITY OF CLOVIS, CLOVIS POLICE DEPARTMENT, and JEFFREY SWINFORD, Individually and in His Prior Official Capacity, Defendants.

          Daniel R. Lindsey, Daniel R. Lindsey Law Firm, Clovis, New Mexico, for Plaintiff.

          Mark D. Standridge and Cody R. Rogers, Jarmie & Rogers P.C., Las Cruces, New Mexico, for Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          PAUL KELLY, JR. UNITED STATES CIRCUIT JUDGE

         THIS MATTER is before the court on Defendants City of Clovis, Clovis Police Department, and Jeffrey Swinford's First Motion for Summary Judgment (ECF No. 28). Upon consideration thereof, the court finds the motion is well taken and should be granted.[1]

         Background

         In this removal case, Plaintiff Dellia Romero brought federal and state law claims seeking damages against Defendants City of Clovis and its police officer Jeffrey Swinford. In the complaint, Ms. Romero alleges that she “said that [the officer] could not give her [fiancé] [Ruben Sepulbeda] a trespass notice because he had done nothing wrong.” Compl. at 3, ¶ 9 (ECF 1-1). She “refused to provide her identification after several requests by [the officer] . . . and got into the front passenger seat of her vehicle.” Id. at ¶ 10. The officer then arrested her for concealing her identity. Id. at ¶ 11. Ms. Romero challenges the arrest and its execution.

         A. Legal Framework

         In an effort to state the facts, it is useful to review the summary judgment standard. A motion for summary judgment should be granted when 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). The court views the factual record and reasonable inferences that may be drawn from it in the light most favorable to the nonmoving party. Banner Bank v. First Am. Title Ins. Co., 916 F.3d 1323, 1326 (10th Cir. 2019).

         “There is, however, an added wrinkle in this case: existence in the record of a video[] capturing the events in question.” Scott v. Harris, 550 U.S. 372, 378 (2007). When that is the case, a court should “view[] the facts in the light depicted in the video[].” Id. at 381. A factual dispute will only preclude summary judgment where it is both (1) genuine, i.e., concerns evidence on which “a reasonable jury could return a verdict for the nonmoving party, ” and (2) material, i.e., is “relevant” and “necessary” to resolution of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). When video evidence is such that “no reasonable jury could believe” one party's version of events, there is no “genuine issue for trial” and summary judgment is appropriate, regardless of that party's “different stor[y].” Scott, 550 U.S. at 380. As in Scott, “[t]here are no allegations or indications that this video[] was doctored or altered in any way, nor any contention that what it depicts differs from what actually happened.” Id. at 378.

         Given this framework, the description of the facts that follows is drawn only from (1) the undisputed material facts revealed in the parties' briefing for the summary judgment motion, [2] and (2) the clear record presented by Officer Swinford's lapel video. To the extent the parties' briefing revealed additional disputed facts not presented in the court's description of the operative facts, the court finds those disputed facts are not material.

         B. Relevant Facts

         On July 4, 2015, Kyle Ackley, a security guard at the North Plains Mall in Clovis, New Mexico, called the Clovis Police Department to request that two individuals - a man and a woman - be removed from the mall. Undisputed Material Fact (“UDMF”) No. 1, Defs.' Mot. Summ. J. at 1. The Police Department sent Officer Jeffrey Swinford to the mall to handle Mr. Ackley's request. UDMF No. 2. When Officer Swinford arrived, Mr. Ackley informed him that a man had been asked to leave the mall because he had been “mad-dogging” a store employee, i.e., glaring at the employee in order to intimidate, and that a woman with him (thought to be the man's wife) was suspected of shoplifting. Lapel Video of Officer Jeffrey Swinford at 0:00-0:10 (ECF No. 36, Ex. D) (sealed).

         While Officer Swinford was speaking with Mr. Ackley, Ruben Sepulbeda[3]approached them and wanted to speak with Officer Swinford. Id. Officer Swinford identified Mr. Sepulbeda as the man Mr. Ackley had reported for mad-dogging, and Officer Swinford informed Mr. Sepulbeda that the mall was requesting he be removed and issued a trespassing notice. Id. at 0:35-1:30. As Officer Swinford was filling out a criminal trespass notice to issue to Mr. Sepulbeda, Plaintiff Dellia Romero approached him. Id. at 3:04. She passed by Officer Swinford and asked, “Why are we getting a trespass? We didn't do nothing wrong here.” Id. at 3:04-3:06.

         Officer Swinford responded, “Let me see your I.D.” Id. at 3:06-3:08. Ms. Romero turned away from Officer Swinford and headed toward her car as she answered, “No.” Id. at 3:08-3:09. She proceeded to walk to her car a few feet away. Id. at 3:09- 3:12. Officer Swinford followed her and said, “Ma'am, I'm not playing this game with you. Let me see your I.D.” Id. She refused and climbed into the car's front passenger seat. Id. at 3:12-3:13. Officer Swinford asked her again, “Ma'am, let me see your I.D.” Id. at 3:15-3:17. She answered, “No.” Id. at 3:17.

         Officer Swinford then grabbed her wrist and began to pull her out of the vehicle. Id. at 3:19-3:27. Ms. Romero attempted to pull her arm away and protested, “Don't you fucking hold on to me like that.” Id. at 3:25-3:27. At this point, Officer Swinford told Ms. Romero, “Ma'am, you're under arrest.” Id. at 3:28-3:30. She responded, “You're not arresting me! For what?!” Id. at 3:30-3:32. Officer Swinford then pulled her arms behind her back and warned her to “stop resisting.” Id. at 3:32-3:38. Officer Swinford placed Ms. Romero in handcuffs and told her, “You are now under arrest for resisting and concealing your I.D.” Id. at 3:39-3:54.

         The officer then proceeded to walk Ms. Romero toward his patrol car, where he pinned her against the hood of the vehicle. Id. at 3:54-4:04. Ms. Romero protested, “You don't fucking have to hold my hand like that.” Id. at 3:58-4:00. In the video she appears to push away from Officer Swinford's grip. Id. at 4:00. She continued to protest that Officer Swinford did not need to hold her as forcefully as he did. Id. at 4:00-4:30. Officer Swinford told her several times to “stop, ” to “relax, ma'am, ” and to “stop tensing up.” Id. At one point, Ms. Romero protested at how tightly Officer Swinford had secured the handcuffs and said, “it's hurting me right here.” Id. at 5:05-5:07. She was then ...


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