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Ward v. City of Hobbs

United States District Court, D. New Mexico

July 31, 2019

OCTAVIA WARD; DENNIS HARGROVE, and SANDRA TODD, Plaintiffs,
v.
THE CITY OF HOBBS; OFFICER TROY D. BRACKEEN, a Hobbs Police Department officer; OFFICER ZAKARIAH T. DALE, a Hobbs Police Department officer, and OFFICER RUBEN GASTELUM, a Hobbs Police Department officer, Defendants.

          Joseph P. Kennedy Shannon L. Kennedy Larissa M. Lozano Kennedy, Kennedy & Ives, LLC Albuquerque, New Mexico Attorney for the Plaintiffs

          Luis Robles Robles, Rael & Anaya, P.C. Albuquerque, New Mexico Attorneys for the Defendants

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on (i) the Plaintiffs' Motion for Summary Judgment, filed January 8, 2019 (Doc. 12)(“Pltfs.' MSJ”); and (ii) the City Defendants' Motion for Summary Judgment, filed January 31, 2019 (Doc. 21)(“Defs.' MSJ”). The Court held a hearing on February 28, 2019. See Clerk's Minutes at 1, filed February 28, 2019 (Doc. 36). The primary issues are: (i) whether the Court should recognize that qualified immunity protects the City of Hobbs[1] Police Department Officers, Defendants Troy Brackeen, Zakariah Dale, and Ruben Gastelum (collectively, “the Defendant Officers”), should grant summary judgment for the Plaintiffs, or should grant summary judgment for the Defendant Officers, on Count III of Plaintiffs Sandra Todd, Octavia Ward, and Dennis Hargrove's Complaint to Recover Damages for Civil Rights Violations, filed November 2, 2018 (Doc. 1)(“Complaint”), in which the Plaintiffs allege that the Defendant Officers unlawfully entered Todd's home while responding to a domestic violence call with no indication of an emergency, see Complaint ¶¶ 67-72, at 7; (ii) whether the Court should grant summary judgment for Ward and Hargrove on their Counts IV and V in which they allege unlawful arrest, because the Defendant Officers acted unlawfully in ordering Ward and Hargrove to leave their host's home and had no probable cause for arrest, see Complaint ¶¶ 73-84, at 7-8, or should grant summary judgment for the Defendant Officers or recognize their qualified immunity protection, because the Defendant Officers arrested Ward and Hargrove for Resisting, Evading or Obstructing an Officer, N.M. Stat. Ann. § 30-22-1, when Ward and Hargrove ignored their orders to leave the garage door open and to step outside the garage, retreated into Todd's house, and evaded arrest; (vi) whether the Court should grant Defendant City of Hobbs, New Mexico summary judgment on the Complaint's Counts III, IV, and V, because the doctrine of respondeat superior cannot engender liability under 42 U.S.C. § 1983; and (v) whether the Court should grant summary judgment for the Defendants on Counts I and II in which the Plaintiffs allege that the Defendant Officers battered Ward and Hargrove during the arrest, because the Defendant Officers used objectively reasonable force, see Complaint ¶¶ 57-66, at 6-7. The Court will deny the Pltfs.' MSJ, and grant in part and deny in part the Defs.' MSJ. Although the Defendant Officers' entry into Todd's residence violates the Plaintiffs' constitutional rights as the Plaintiffs allege in Count III, qualified immunity protects the Defendant Officers against Count III, see Complaint ¶¶ 67-72, at 7, clearly established law does not establish that the Defendant Officers' committed the Constitutional violation. Likewise, the Defendant Officers violated Ward's and Hargrove's constitutional rights when the Defendant Officers arrested Ward and Hargrove as the Plaintiffs allege in Counts IV and V, see Complaint ¶¶ 73-84, at 7-8, but qualified immunity protects, however, the Defendant Officers from liability for Counts IV and V, because clearly established law does not establish the Constitutional violation. The Court does not read the Complaint to reflect that the Plaintiffs bring, in Counts III, IV, and V, § 1983 claims against the City of Hobbs. See Complaint ¶¶ 67-84, at 7-8. If the Plaintiffs intend to raise such claims against the City of Hobbs, the Court will grant summary judgment for the City of Hobbs, because a municipality cannot be liable under § 1983 on a respondeat superior theory. See Schneider v. City of Grand Junction Police Dep't 717 F.3d 760, 767 (10th Cir. 2013)(quoting Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011)). Last, the Court will not grant summary judgment for the Defendants on Counts I and II, because the Defendant Officers unlawfully arrested Ward and Hargrove.

         FACTUAL BACKGROUND

         The Court begins by recounting the facts. The Court draws the factual background from the parties' undisputed material facts in the Pltfs.' MSJ, the City Defendants' Response to Plaintiffs' Motion for Summary Judgment, filed January 28, 2019 (Doc. 19)(“Defs.' Response to Pltfs.' MSJ”); the Plaintiffs' Reply in Support of Plaintiffs' Motion for Summary Judgment, filed February 15, 2019 (Doc. 27)(“Pltfs.' Reply to Pltfs.' MSJ”), the Defs.' MSJ, and the Plaintiffs' Response to City Defendants' Motion for Summary Judgment, filed February 20, 2019 (Doc. 29)(“Pltfs.' Response to Defs.' MSJ”). The Defendants did not reply to the Pltfs.' Response to Defs.' MSJ.

         On September 9, 2018, at around 12:23 a.m., the Hobbs Police Department received a 911 call from Jessica Gonzales about a verbal altercation, involving no weapons, at 9 Acoma Court in Hobbs, New Mexico. See Pltfs.' MSJ ¶ 1, at 2 (asserting this fact);[2] Defs.' Response to Pltfs.' MSJ ¶ 1, at 4 (also asserting this fact)(citing Hobbs Police Department Daily Activity Log, with CAD Comments at 1, filed January 28, 2019 (Doc. 19-1)(“CAD Report”); HPD 911 Call Audio Recording at 00:52-00:59, filed with court on February 28, 2019 (on file with court)(“911 Call”); Transcript of Jessica Gonzales 911 Call at 3:8-12, filed January 28, 2019 (Doc. 19-2)(“911 Call Tr.”)); Pltfs.' Reply to Pltfs.' MSJ ¶ 1, at 3 (admitting this fact). Gonzales informed the Lea County Communication Authority dispatcher that she was at 10 Acoma Court and that she heard her neighbors across the street arguing. See Defs.' Response to Pltfs.' MSJ ¶ 2, at 4 (asserting this fact)(citing 911 Call at 00:03-00:18; 911 Call Tr. at 22:2-6); Pltfs.' Reply to Pltfs.' MSJ ¶ 1, at 3 (admitting this fact). Gonzales indicated: “There's a man and the other person is a woman. And he's going off on her, yelling at her.” Defs.' Response to Pltfs.' MSJ ¶ 3, at 4 (asserting this fact)(citing 911 Call at 00:03-00:18, 911 Call Tr. at 2:2-6); Pltfs.' Reply to Pltfs.' MSJ ¶ 1, at 3 (admitting this fact). Gonzales specified that the fighting was not physical. See Pltfs.' MSJ ¶ 2, at 2 (asserting this fact)(CAD Report at 1).[3] When the dispatcher asked if the incident was physical, Gonzales stated: “No. I'm afraid it will get physical. They're -- he's yelling at her.” Defs.' Response to Pltfs.' MSJ ¶ 4, at 5 (asserting this fact)(citing 911 Call at 00:32-00:43; 911 Call Tr. at 2:18-19). See Pltfs.' Reply to Pltfs.' MSJ ¶ 1, at 3 (admitting this fact). Gonzales specified that “it'll get physical” without intervention, Defs.' Response to Pltfs.' MSJ ¶ 5, at 5 (asserting this fact)(citing 911 Call at 00:42-00:48; 911 Call Tr. at 2:25-3:4); see Pltfs.' Reply to Pltfs.' MSJ ¶ 1, at 3 (admitting this fact), and stated that the individuals were fighting in the garage, see Defs.' Response to Pltfs.' MSJ ¶ 6, at 5 (asserting this fact)(citing 911 Call at 01:06-01:18; 911 Call Tr. at 3:16-19); Pltfs.' Reply to Pltfs.' MSJ ¶ 1, at 3 (admitting this fact). The dispatcher confirmed that the incident was at “9 West Acoma.” Defs.' Response to Pltfs.' MSJ ¶ 7, at 6 (asserting this fact)(citing 911 Call at 02:31-02:33; 911 Call Tr. at 5:7). See Pltfs.' Reply to Pltfs.' MSJ ¶ 1, at 3 (admitting this fact). The dispatcher recorded in the Computer Aided Dispatch (“CAD”) Report: “Neighbors across the street are fighting, male/female, just verbal.” Defs.' Response to Pltfs.' MSJ ¶ 9, at 5 (asserting this fact)(citing CAD Report at 1). See Pltfs.' Reply to Pltfs.' MSJ ¶ 2, at 3 (admitting this fact).

         Around one minute later, the dispatcher radioed the Defendant Officers about the call. See Defs.' Response to Pltfs.' MSJ ¶ 12, at 5-6 (asserting this fact)(citing HPD Dispatch Call at 00:00-00:16, filed January 28, 2019 (on file with court)(“HPD Dispatch Call”); Transcript of HPD Dispatch at 2:1-65, filed January 28, 2019 (Doc. 19-3)(“HPD Dispatch Tr.”); CAD Report, at 1).[4]The dispatcher informed the Defendant Officers: “10 West Acoma Court, 1-0 West Acoma Court. It's going to be a domestic. Male and female fighting outside.” Defs.' Response to Pltfs.' MSJ ¶ 13, at 6 (asserting this fact)(citing HPD Dispatch Call at 00:08-00:16; HPD Dispatch Tr. at 2:3-5; CAD Report, at 1). See Pltfs.' Reply to Pltfs.' MSJ ¶ 3, at 3 (not disputing this fact). The dispatcher followed this call with a correction: “Correction. The offenders are going to be at 9 Acoma Court, Acoma Court in a garage.” Defs.' Response to Pltfs.' MSJ ¶ 15, at 6 (asserting this fact)(citing HPD Dispatch Call at 00:30-00:39; HPD Dispatch Tr.at 2:8-10). See Pltfs.' Reply to Pltfs.' MSJ ¶ 3, at 3 (not disputing this fact). On this information, the officers responded to 9 West Acoma Court with the perception that a physical altercation was occurring or had occurred. See Defs.' Response to Pltfs.' MSJ ¶ 16, at 6 (asserting this fact)(citing Affidavit of Officer Troy Brackeen ¶ 5, at 2, filed January 28, 2019 (Doc. 19-4)(“Brackeen Aff.”); Affidavit of Officer Zakariah Dale ¶ 5, at 2, filed January 28, 2019 (Doc. 19-5)(“Dale Aff.”); Affidavit of Officer Ruben Gastelum ¶ 5, at 2, filed January 28, 2019 (Doc. 19-6)(“Gastelum Aff.”)).[5] The officers did not review the CAD Report in detail, because they were actively responding to the call. See Defs.' Response to Pltfs.' MSJ ¶ 17, at 6-7 (asserting this fact)(citing Brackeen Aff. ¶ 6, at 2; Dale Aff. ¶ 6, at 2, Gastelum Aff. ¶ 6, at 2); Pltfs.' Reply to Pltfs.' MSJ ¶ 5, at 3 (not disputing this fact). The decision not to review the CAD Report follows Hobbs Police Department procedures that discourage officers from using computers while driving. See Defs.' Response to Pltfs.' MSJ ¶ 18, at 7 (asserting this fact)(citing HPD -- Rules and Regulations Manual, II, §3, (V)(D), at 2, filed January 28, 2019 (Doc. 19-7)); Pltfs.' Reply to Pltfs.' MSJ ¶ 5, at 3 (not disputing this fact).

         The Defendant Officers responded to the call. See Pltfs.' MSJ ¶ 3, at 2-3 (asserting this fact)(citing generally CAD Report); Defs.' Response to Pltfs.' MSJ ¶ 3-13, at 3 (admitting this fact). Neither Gastelum nor Dale activated their emergency equipment as they drove to 9 Acoma Court, and Dale explained that he did not start the equipment, because the call did not threaten “‘danger of life or limb or eyesight.'” Pltfs.' Response to Defs.' MSJ ¶¶ 1-2, at 2 (asserting this fact)(quoting Transcript of Interview of Officer Zachariah T. Dale at 11:11-20, filed February 29, 2019 (Doc. 29-1)(“Dale Interview”); and citing id. at 10:18-21; Transcript of Interview of Officer Ruben Gastelum at 3:20-22, filed February 20, 2019 (Doc. 29-2)(“Gastelum Interview”)).[6] The Defendant Officers approached 9 Acoma Court on foot. See Defs.' Response to Pltfs.' MSJ ¶ 19, at 7 (asserting this fact)(citing Brackeen Body Camera at 00:16, filed January 28, 2019 (on file with court); Dale Body Camera at 00:04, filed January 28, 2019 (on file with court); Gastelum Body Camera at 00:00-00:04, filed January 28, 2019 (on file with court)).[7] As Dale approached the house, he saw and heard nothing that caused alarm or concern. See Pltfs.' Response to Defs.' MSJ ¶¶ 3-4, at 2 (asserting this fact)(citing Dale Interview at 15:10-13; id. at 15:14-16).[8] Gastelum heard two people in the garage and saw a screen with an open door, but he heard no noise and saw nothing that caused him concern or alarm. See Pltfs.' Response to Defs.' MSJ ¶¶ 5-7, at 2 (asserting this fact)(citing Gastelum Interview at 7:6-18; id. at 7:22-24; id. at 10:11-15).[9] An open garage door and lit garage were visible to the Defendant Officers as they approached. See Defs.' Response to Pltfs.' MSJ ¶ 20, at 7 (asserting this fact)(citing Brackeen Body Camera at 00:14-00:42; Dale Body Camera at 00:03-00:20, Gastelum Body Camera at 00:02-00:23); Pltfs.' Reply to Pltfs.' MSJ ¶ 6, at 3 (not disputing this fact). A temporary screen with a built-in door enclosed the garage's front opening. See Pltfs.' MSJ ¶ 6, at 3 (asserting this fact)(citing Gastelum Body Camera at 00:17, and citing generally Criminal Complaint (dated September 9, 2018), filed January 8, 2019 (Doc. 12-3)(“Ward Criminal Complaint”)); Defs.' Response to Pltfs.' MSJ ¶ 3-13, at 3 (admitting this fact), id ¶ 23, at 7-8 (also asserting this fact)(citing Gastelum Body Camera at 00:01-00:47)); Pltfs.' Reply to Pltfs.' MSJ ¶ 6, at 3 (not disputing this fact). The door was open when the Defendant Officers arrived. See Defs.' Response to Pltfs.' MSJ ¶ 22, at 7 (asserting this fact)(citing Gastelum Body Camera at 00:14-00:32); Pltfs.' Reply to Pltfs.' MSJ ¶ 6, at 3 (not disputing this fact). The garage's inside was clearly visible to any persons outside the garage. See Defs.' Response to Pltfs.' MSJ ¶ 24, at 8 (asserting this fact)(citing Gastelum Body Camera at 00:01-00:47; 911 Call Tr. at 3:13-19); Pltfs.' Reply to Pltfs.' MSJ ¶ 6, at 3 (not disputing this fact).

         Todd owns 9 Acoma Court, and Ward and Hargrove were at the house as guests. See Pltfs.' MSJ ¶ 4, at 3 (asserting this fact)(citing generally Affidavit of Sandra Renee Todd, filed January 8, 2019 (Doc. 12-2)(“Todd Aff")); Defs.' Response to Pltfs.' MSJ ¶ 3-13, at 3 (admitting this fact). Ward and Hargrove were in Todd's garage. See Pltfs.' MSJ ¶ 5, at 3 (asserting this fact)(citing generally Gastelum Body Camera, Ward Criminal Complaint, Criminal Complaint (dated September 9, 2018), filed January 8, 2019 (Doc. 12-4)(“Hargrove Criminal Complaint”)); Defs.' Response to Pltfs.' MSJ ¶ 3-13, at 3 (admitting this fact). As he stopped outside the garage, Gastelum informed Ward and Hargrove that the Hobbs Police Department had received a domestic violence call and that the Defendant Officers wanted to check on the people at the house. See Pltfs.' MSJ ¶ 7, at 3 (asserting this fact)(citing Gastelum Body Camera at 00:25, and citing generally Gastelum Body Camera Tr.); Defs.' Response to Pltfs.' MSJ ¶ 3-13, at 3 (admitting this fact); Defs.' Response to Pltfs.' MSJ ¶ 26, at 8 (also asserting this fact)(citing Gastelum Body Camera at 00:24-00:29; Gastelum Body Camera Tr. at 2:4-6); Pltfs.' Reply to Pltfs.' MSJ ¶ 6, at 3 (not disputing this fact). Gastelum spoke to Ward and Hargrove: “How is it going, guys? We got a call over here. Everything all right[?]” Defs.' Response to Pltfs.' MSJ ¶ 21, at 7 (asserting this fact)(alteration in Defs.' Response to Pltfs.' MSJ)(citing Gastelum Body Camera at 00:13-00:19; Gastelum Body Camera Tr. at 2:1-2). See Pltfs.' Reply to Pltfs.' MSJ ¶ 6, at 3 (not disputing this fact). Ward was seated on a pool table in the garage's center and responded “yeah” to Gastelum's question. Defs.' Response to Pltfs.' MSJ ¶ 25, at 8 (asserting this fact)(citing Gastelum Body Camera at 00:17-00:22; Gastelum Body Camera Tr. at 2:3). See Pltfs.' Reply to Pltfs.' MSJ ¶ 6, at 3 (not disputing this fact). Ward and Hargrove told the Defendant Officers that no domestic violence had occurred. See Pltfs.' MSJ ¶ 8, at 3 (asserting this fact)(citing Gastelum Body Camera at 00:28, Gastelum Body Camera Tr. at 2:7-8); Defs.' Response to Pltfs.' MSJ ¶ 3-13, at 3 (admitting this fact). Hargrove denied that any domestic violence had occurred, and told the Defendant Officers that he and Ward “were ‘just chilling.'” Pltfs.' MSJ ¶ 9, at 3 (asserting this fact)(quoting Gastelum Body Camera at 00:33; Gastelum Body Camera Tr. at 2:10-11). See Defs.' Response to Pltfs.' MSJ ¶ 3-13, at 3 (admitting this fact); id. ¶ 27, at 8 (also asserting this fact)(citing Gastelum Body Camera at 00:28-00:34; Gastelum Body Camera Tr. at 2:7-11); Pltfs.' Reply to Pltfs.' MSJ ¶ 6, at 3 (not disputing this fact). Gastelum asked if anyone was in the house. See Pltfs.' MSJ ¶ 10, at 3 (asserting this fact)(citing Gastelum Body Camera at 00:35; Gastelum Body Camera Tr. at 2:13); Defs.' Response to Pltfs.' MSJ ¶ 3-13, at 3 (admitting this fact); id. ¶ 28, at 8 (also asserting the fact)(citing Gastelum Body Camera at 00:34-00:36; Gastelum Body Camera Tr. at 2:13); Pltfs.' Reply to Pltfs.' MSJ ¶ 6, at 3 (not disputing this fact). Hargrove replied that his family was in the house. See Pltfs.' MSJ ¶ 11, at 3 (asserting this fact)(citing Gastelum Body Camera at 00:37; Gastelum Body Camera Tr. at 2:15); Defs.' Response to Pltfs.' MSJ ¶ 3- 13, at 3 (admitting this fact); id. ¶ 29, at 8 (also asserting this fact)(citing Gastelum Body Camera at 00:34-00:41; Gastelum Body Camera Tr. at 2:15-16); Pltfs.' Reply to Pltfs.' MSJ ¶ 9, at 3 (not disputing this fact). Hargrove stood up and, while walking to the door in the screen, told the Defendant Officers that they could leave. See Defs.' Response to Pltfs.' MSJ ¶ 30, at 8 (asserting this fact)(citing Gastelum Body Camera at 00:34-00:41; Gastelum Body Camera Tr. at 2:15-16); Pltfs.' Reply to Pltfs.' MSJ ¶ 6, at 3 (not disputing this fact). Dale told Hargrove that the Defendant Officers would “hang out here for a minute until we get this taken care of.” Defs.' Response to Pltfs.' MSJ ¶ 33, at 9 (asserting this fact)(citing Gastelum Body Camera at 00:41-00:44; Gastelum Body Camera Tr. at 2:17-18).[10] While walking to the door, Hargrove told the Defendant Officers “Oh, you're fine. That's fine.” Defs.' Response to Pltfs.' MSJ ¶ 34, at 9 (asserting this fact)(citing Gastelum Body Camera at 00:41-00:45; Gastelum Body Camera Tr. at 2:19).[11]

         Hargrove tried to close the open door. See Pltfs.' MSJ ¶ 12, at 3 (asserting this fact)(citing Gastelum Body Camera at 00:45); Defs.' Response to Pltfs.' MSJ ¶ 3-13, at 3 (admitting this fact). Gastelum told Hargrove three times to leave the door open. See Defs.' Response to Pltfs.' MSJ ¶ 35, at 9 (asserting this fact)(citing Gastelum Body Camera at 00:45-00:49; Gastelum Body Camera Tr. at 2:20-22); Pltfs.' Reply to Pltfs.' MSJ ¶ 12, at 4 (not disputing this fact). Gastelum opened the door and told Hargrove to leave the door open, see Pltfs.' MSJ ¶ 13, at 4 (asserting this fact)(citing Gastelum Body Camera at 00:46; Gastelum Body Camera Tr. at 2:21-22); Defs.' Response to Pltfs.' MSJ ¶ 3-13, at 3 (admitting this fact); Pltfs.' Response to Defs.' MSJ ¶ 9, at 3 (also asserting this fact)(citing Gastelum Interview at 11:7-19), and again told Ward and Hargrove that the Officer Defendants were “investigating . . . domestic violence, ” Defs.' Response to Pltfs.' MSJ ¶ 36, at 9 (asserting this fact)(citing Gastelum Body Camera at 00:45-00:51; Gastelum Body Camera Tr. at 2:20-23); see Pltfs.' Reply to Pltfs.' MSJ ¶ 12, at 4 (not disputing this fact). Ward and Hargrove repeatedly told the Defendant Officers: “[T]here's no domestic violence.” Defs.' Response to Pltfs.' MSJ ¶ 37, at 9 (asserting this fact)(citing Dale Body Camera at 00:48-00:50; Gastelum Body Camera Tr. at 2:24-25). See Pltfs.' Reply to Pltfs.' MSJ ¶ 12, at 4 (not disputing this fact). Gastelum responded: “Well, I don't know that yet. I want to talk to everybody in the house.” Defs.' Response to Pltfs.' MSJ ¶ 38, at 9 (asserting this fact)(citing Dale Body Camera at 00:49-00:53; Gastelum Body Camera Tr. at 3:1-2). See Pltfs.' Reply to Pltfs.' MSJ ¶ 12, at 4 (not disputing this fact). “Ward got up from the pool table, approached Hargrove and grabbed his arm to pull him away from the front of the garage, and she stood in front of him.” Defs.' Response to Pltfs.' MSJ ¶ 41, at 10 (asserting this fact)(Dale Body Camera at 00:49-00:56; Brackeen Body Camera at 1:07-1:19). See Defs.' Response to Pltfs.' MSJ ¶ 14, at 3 (admitting this fact). During these events, Ward offered to retrieve Todd. See Pltfs.' MSJ ¶ 14, at 4 (asserting this fact)(citing Gastelum Body Camera at 00:55; Gastelum Body Camera Tr. at 3:4); Defs.' Response to Pltfs.' MSJ ¶ 14, at 3 (admitting this fact).

         Gastelum directed Hargrove to step outside to speak with the Defendant Officers. See Pltfs.' MSJ ¶ 15, at 4 (asserting this fact)(citing Gastelum Body Camera at 00:57, Gastelum Body Camera Tr. at 5:8-9); Defs.' Response to Pltfs.' MSJ ¶ 15, at 3 (admitting this fact). Gastelum gestured Hargrove toward him and told Hargrove to “step out.” Defs.' Response to Pltfs.' MSJ ¶¶ 39-40, at 9 (asserting this fact)(citing Dale Body Camera at 00:52-00:56; Gastelum Body Camera Tr. at 3:5). See Pltfs.' Reply to Pltfs.' MSJ ¶ 12, at 4 (not disputing this fact). Ward and Hargrove stated that they would not comply with Gastelum's order. See Defs.' Response to Pltfs.' MSJ ¶ 42, at 10 (asserting this fact)(citing Brackeen Body Camera at 1:16-1:21; Transcript of Officer Brackeen's Body Camera at 3:14-16, filed January 28, 2019 (Doc. 19-10)(“Brackeen Body Camera Tr.”)); Pltfs.' Reply to Pltfs.' MSJ ¶ 12, at 4 (not disputing this fact). At the same time, Hargrove began retreating and moving toward the house. See Defs.' Response to Pltfs.' MSJ ¶¶ 43-44, at 10 (asserting this fact)(citing Dale Body Camera at 00:52-00:54; Gastelum Body Camera at 00:56-1:06); Pltfs.' Reply to Pltfs.' MSJ ¶ 12, at 4 (not disputing this fact).

         Gastelum believed that the threat that Hargrove was impeding the investigation and that he might speak with others within the home established an exigency. See Pltfs.' Response to Defs.' MSJ ¶ 10, at 3 (asserting this fact)(citing Gastelum Interview at 16:3-14).[12] The Defendant Officers entered the garage. See Pltfs.' MSJ ¶ 16, at 4 (asserting this fact)(citing Gastelum Body Camera at 00:58); Defs.' Response to Pltfs.' MSJ ¶ 16, at 3 (admitting this fact). Gastelum entered the garage, because he believes domestic disturbance calls to be unpredictable and did not know what was occurring inside the residence. See Pltfs.' Response to Defs.' MSJ ¶ 15, at 3 (asserting this fact)(citing Gastelum Interview at 20:9-23).[13] Gastelum had no evidence that anyone within the house was injured or had been struck. See Pltfs.' Response to Defs.' MSJ ¶ 16, at 3 (asserting this fact)(citing Gastelum Interview at 22:5-12).[14] Dale entered the garage, because he saw Hargrove commit a crime, i.e., Hargrove ignored Gastelum's orders. See Pltfs.' Response to Defs.' MSJ ¶ 17, at 3 (asserting this fact)(citing Dale Interview at 30:2-11).[15] No. emergency related to the domestic disturbance call led Dale to enter the garage. See Pltfs.' Response to Defs.' MSJ ¶ 18, at 3 (asserting this fact)(citing Dale Interview at 31:7-25; id. at 32:1-15).[16] Gastelum told Hargrove to stop and to come back to him. See Pltfs.' Response to Defs.' MSJ ¶ 11, at 3 (asserting this fact)(citing Gastelum Interview at 17:7-10).[17] The Defendant Officers followed Hargrove, who walked away from them within the garage and toward the door leading into the house. See Pltfs.' MSJ ¶¶ 17-18, at 4 (asserting this fact)(citing Gastelum Body Camera at 1:04-05); Defs.' Response to Pltfs.' MSJ ¶ 18-19, at 4 (admitting this fact). Gastelum believed that Hargrove was trying to detain the Defendant Officers and to obstruct them. See Pltfs.' Response to Defs.' MSJ ¶ 12, at 3 (asserting this fact)(citing Gastelum Interview at 17:11-23).[18] Ward positioned herself between the Defendant Officers and Hargrove, and she attempted to pull Hargrove from the Defendant Officers and toward the house. See Defs.' Response to Pltfs.' MSJ ¶ 46, at 10 (asserting this fact)(citing Brackeen Body Camera at 1:20-1:31; Dale Body Camera at 1:00-1:09; Gastelum Body Camera at 00:56-1:10).[19] The Defendant Officers pursued and arrested Hargrove. See Defs.' Response to Pltfs.' MSJ ¶ 47, at 10-11 (asserting this fact)(citing Gastelum Body Camera at 00:56-1:30).[20] Gastelum and Brackeen put Halgrove in handcuffs. See Pltfs.' MSJ ¶ 19, at 4 (asserting this fact)(citing Gastelum Body Camera at 1:07-21); Defs.' Response to Pltfs.' MSJ ¶ 18-19, at 4 (admitting this fact). The Defendant Officers observed no blood or injuries either on Hargrove or on Ward. See Pltfs.' Response to Defs.' MSJ ¶¶ 13-14, at 3 (asserting this fact)(citing Gastelum Interview at 19:7-13; id. at 19:16-20-1).[21]

         Ward resisted Dale's verbal and physical attempts to prevent her from entering the house, see Defs.' Response to Plaitniffs' MSJ ¶ 48, at 12 (asserting this fact)(citing Dale Body Camera at 1:05-2:15), [22] and went inside the house, see Pltfs.' MSJ ¶ 20, at 4 (asserting this fact)(citing Dale Body Camera at 4:20); Defs.' Response to Pltfs.' MSJ ¶ 20, at 4 (admitting this fact). Dale followed Ward into the house. See Pltfs.' MSJ ¶ 21, at 4 (asserting this fact)(citing Dale Body Camera at 1:10); Defs.' Response to Pltfs.' MSJ ¶ 21-22, at 4 (admitting this fact). Dale detained Ward briefly in a laundry room near a door leading to the garage before he returned with her to the garage. See Defs.' Response to Pltfs.' MSJ ¶ 49, at 11 (asserting this fact)(citing Dale Body Camera at 1:05-2:15);[23] Defs.' MSJ ¶ 4, at 3 (asserting this fact)(citing Brackeen Body Camera at 1:07-2:06, Gastelum Body Camera at 1:45-2:11); Pltfs.' Response to Defs.' MSJ ¶ 2, at 2 (not disputing this fact). Dale and Gastelum put Ward in handcuffs promptly after Dale and she returned to the garage. See Pltfs.' MSJ ¶ 22, at 4 (asserting this fact)(citing Gastelum Body Camera Tr. at 1:12-1:56); Defs.' Response to Pltfs.' MSJ ¶ 21-22, at 4 (admitting this fact); Defs.' MSJ ¶ 5, at 3 (also asserting this fact)(citing Brackeen Body Camera at 1:07-2:06, Gastelum Body Camera at 1:45-2:11); Pltfs.' Response to Defs.' MSJ ¶ 2, at 2 (not disputing this fact). Dale arrested Ward, because she grabbed Hargrove and tried to pull him from Gastelum. See Pltfs.' Response to Defs.' MSJ ¶ 19, at 4 (asserting this fact)(citing Dale Interview at 33:9-25).[24] Dale's process of arresting Ward took around one minute. See Defs.' MSJ ¶ 6, at 3 (asserting this fact)(citing Brackeen Body Camera at 1:07-2:06; Gastelum Body Camera at 1:45-2:11); Pltfs.' Response to Defs.' MSJ ¶ 2, at 2 (not disputing this fact).

         The Defendant Officers transported Ward and Hargrove to the City of Hobbs Detention Facility, where they were booked. See Pltfs.' MSJ ¶ 24, at 4 (asserting this fact)(citing Hobbs Police Department Incident Report, filed January 8, 2091 (Doc. 12-6)); Defs.' Response to Pltfs.' MSJ ¶ 24-26, at 4 (admitting this fact). Dale charged Ward and Hargrove with resisting arrest. See Pltfs.' MSJ ¶¶ 25-26, at 4-5 (asserting this fact)(citing generally Hobbs Police Department Incident Report); Defs.' Response to Pltfs.' MSJ ¶ 24-26, at 4 (admitting this fact); id. ¶ 50, at 12 (also asserting this fact)(citing Criminal Complaint at 1, Hobbs Code § 9.04080, filed January 28, 2019 (Doc. 19-11)).[25] After being in custody, Hargrove admitted that he was intoxicated. See Defs.' Response to Pltfs.' MSJ ¶ 52, at 11 (asserting this fact)(citing Transcript of Sergeant Mattock's Body Cam at 8:23-25, filed January 28, 2019 (Doc. 19-12)(“Mattock Body Camera Tr.”)).[26]

         Ward has no evidence of any injury more than a de minimis harm. See Defs.' MSJ ¶ 7, at 3 (asserting this fact)(citing Brackeen Body Camera at 1:07-2:06; Gastelum Body Camera at 1:45-2:11; Ward Criminal Complaint); Pltfs.' Response to Defs.' MSJ ¶ 2, at 2 (not disputing this fact). “Hargrove only complained about temporary pain to his wrist and arm when the Officers detained and handcuffed him.” Defs.' MSJ ¶ 2, at 3 (asserting this fact)(citing Brackeen Body Camera at 1:16-1:53). See Pltfs.' Response to Defs.' MSJ ¶ 2, at 2 (not disputing this fact). Brackeen adjusted Hargrove's handcuffs to placate him. See Defs.' MSJ ¶ 3, at 3 (asserting this fact)(citing Brackeen Body Camera at 2:20-3:18); Pltfs.' Response to Defs.' MSJ ¶ 2, at 2 (not disputing this fact).

         PROCEDURAL BACKGROUND

         The Plaintiffs ask for relief on several grounds. First, in Counts I and II, Ward and Hargrove ask for relief against the Defendants pursuant to § 41-4-12 of the New Mexico Tort Claims Act, §§ 41-4-1 to -27 (“NMTCA”), for the battery that the Defendant Officers committed against Ward and Hargrove, specifically the Defendant Officers' “unlawfully and intentionally touch[ing] and appl[ying] force to [Ward and Hargrove] in a rude, insolent, or angry manner.” Complaint ¶¶ 58, 63, at 6. See Complaint ¶¶ 73-84, at 7-8. Second, in Count III, the Plaintiffs asks for relief against the Defendant Officers, who, according to Todd, violated the Fourth Amendment to the Constitution of the United States when they entered her home “without a warrant, probable cause or exigency, ” Complaint ¶ 69, at 7, or consent, and the entry “was objectively unreasonable under the circumstances, ” Complaint ¶ 71, at 7. See id ¶¶ 67-72, at 7. Third, in Counts IV and V, Ward and Hargrove ask for relief against the Defendant Officers for the Fourth Amendment violation that resulted from the Defendant Officers' searching, detaining, arresting, and charging Ward and Hargrove. See Complaint ¶¶ 57-66, at 6-7. Both parties now seek summary judgment on Counts III through IV, and the Defendants seek summary judgment on Counts I and II. See generally Pltfs.' MSJ; Defs.' MSJ.

         1. The Pltfs.' MSJ.

         In the Pltfs.' MSJ, the Plaintiffs request summary judgment on their Counts III, IV, and V. See Pltfs.' MSJ at 1. The Plaintiffs first contend that the Defendant Officers did not have an exigency that justified entry into Todd's home, because established law reflects that a report of domestic violence alone does not establish an exigency. See Pltfs.' MSJ at 8-10. The Plaintiffs cite for support first United States v. Davis, 290 F.3d 1239 (10th Cir. 2002), wherein the United States Court of Appeals for the Tenth Circuit found no exigency where a 911 caller reported domestic violence, the defendant lied about his wife's presence at the home, the defendant insisted that the officers remain outside his home, and the defendant committed no violence toward the officer. See Pltfs.' MSJ at 8-9. The Plaintiffs also cite Storey v. Taylor, 696 F.3d 987 (10th Cir. 2012), wherein the Tenth Circuit held that reports of domestic verbal disputes without more do not establish an immediate need to protect others and held that the officers had no justification for pulling the defendant, who refused to leave his home, from the home, where the officer heard no dispute at the home, and Storey refused to answer inquiries about the matter and refused to leave his home. See Pltfs.' MSJ at 9-10. According to the Plaintiffs, here, the Defendant Officers relied solely on a 911 call, and that they cannot rely on such evidence to enter a home is clearly established. See Pltfs.' MSJ at 10.

         The Plaintiffs next argue that the Defendant Officers' order to Hargrove to step out of the garage was unlawful, because, based on Storey v. Taylor, clearly established law establishes that officers cannot command people from their homes for probable cause for not obeying an unlawful order, and that an order from the home is a seizure for which an officer, without probable cause, must have an exigency. See Pltfs.' MSJ at 10-11. The Plaintiffs argue third that the Defendant Officers could not arrest Ward and Hargrove for resisting, evading, or obstructing them, because the charge requires that an officer have been acting in “‘lawful discharge of his duties, '” and the New Mexico Court of Appeals has stated that an officer merely acting in his or her employment as an officer is not in the lawful discharge of his or her duties. Pltfs.' MSJ at 11 (quoting State v.

         Frazier, 1975-NMCA-075, ¶¶ 11-12, 15, 537 P.2d 711, 713). According to the Plaintiffs, the Defendant Officers did not act in lawful discharge of their duties when they violated the Fourth Amendment. See Pltfs.' MSJ at 11-12. Last, the Plaintiffs aver that the Defendant Officers cannot justify arresting Ward and Hargrove on the grounds that they resisted arrest, because, for the charge to adhere, the resistance must have been in response to an arrest based on probable cause. See Pltfs.' MSJ at 12 (citing Keylon v. City of Albuquerque, 535 F.3d 1210, 1216-17 (10th Cir. 2008)).

         2. The Defs.' Response to Pltfs.' MSJ.

         The Defendants respond. See Defs.' Response to Pltfs.' MSJ at 1-26. The Defendants begin their response to the Plaintiffs' argument regarding unlawful entry by summarizing Brigham City v. Stuart, 547 U.S. 398 (2006), wherein the Supreme Court of the United States of America held that officers' entry into a home was reasonable where the officers observed evidence creating “a reasonable basis to believe that [an] adult might need help and the fight might just be beginning.” Defs.' Response to Pltfs.' MSJ at 15 (citing Brigham City v. Stuart, 547 U.S. at 406). The Defendants also summarize United States v. Najar, 451 F.3d 710 (10th Cir. 2006), wherein: (i) a police dispatcher received a 911 call followed by silence and a disconnect, could not return the call, and sent officers to a residence the occupant of which refused to permit the officers to enter; (ii) on the officers' arrival, the lights in the residence were on, and the officers could observe a person within the home, but no one answered the officers' persistent knocking; (iii) Richard Najar eventually opened the door, but denied that anyone else was home or that a 911 call had been made; and (iv) the officers entered the home and discovered an uninjured woman in a bedroom and a shotgun, and arrested Najar for being a felon in possession. See Defs.' Response to Pltfs.' MSJ at 15. According to the Defendants: (i) the Tenth Circuit concluded that the officers could believe that an exigency existed; and (ii) the Tenth Circuit differentiated United States v. Davis, wherein the officers verified the defendant's wife's safety, from United States v. Najar's facts, in which a 911 call was made from the house, but the defendant insisted that he did not make a 911 call. See Defs.' Response to Pltfs.' MSJ at 15-16.

         According to the Defendants, here, the Defendant Officers believed that they were responding to domestic violence involving a physical altercation, understood that Hargrove's family was in the house, saw an intoxicated Hargrove attempting to keep the Defendant Officers from the house, and Ward refusing to obey commands and pulling Hargrove into the house, and observed Hargrove inexplicably retreating into the house. See Defs.' Response to Pltfs.' MSJ at 17-19. The Defendants contend that the Defendant Officers entered the house, because the 911 dispatcher received a call about a domestic dispute that led them to believe that a physical altercation had occurred, did not know the female's identity or her physical state, knew that Hargrove's family was inside but did not know who that included, did not know Hargrove or Ward, or Hargrove's propensity for violence, and observed Ward's and Hargrove's evasive behavior. See Defs.' Response to Pltfs.' MSJ at 18-19. The Defendants explain that the Defendant Officers took Hargrove into custody to stop him from entering the house and arrested Ward, because she resisted Dale's attempts to stop her from entering the house. See Defs.' Response to Pltfs.' MSJ at 18. The Defendants contend that the Defendant Officers reasonably believed that not investigating further would risk leaving the unknown victim in harm's way, and that they could not engage in further investigation because of Hargrove's and Ward's conduct. See Defs.' Response to Pltfs.' MSJ at 19.

         The Defendants add that the Defendant Officers also approached Ward and Hargrove in a reasonable manner. See Defs.' Response to Pltfs.' MSJ at 19-20. According to the Defendants, the Defendant Officers approached an open door, identified themselves, and did not enter until they attempted to stop Ward and Hargrove from entering the residence. See Defs.' Response to Pltfs.' MSJ at 19-20. According to the Defendants, the Defendant Officers did not search the residence, and sought only to end the imminent threat that they believed that Ward and Hargrove posed. See Defs.' Response to Pltfs.' MSJ at 20.

         The Defendants distinguish United States v. Davis and Storey v. Taylor. See Defs.' Response to Pltfs.' MSJ at 20-24. According to the Defendants, in United States v. Davis, the officers responded to a possible domestic disturbance, but knew Davis was not wanted for criminal offenses and had interacted with him over minor, non-violent issues; furthermore, the officers saw Davis' partner, Desiree Coleman, at the door, and she told them that she and Davis had been arguing. See Defs.' Response to Pltfs.' MSJ at 20-21. Moreover, according to the Defendants, in United States v. Davis, Davis told Coleman to go outside and retreated inside with a child. See Defs.' Response to Pltfs.' MSJ at 21. The Defendants note that the Tenth Circuit decided United States v. Davis before the Supreme Court, in Brigham City v. Stuart, removed the requirementsthat a search not be motivated by an intent to arrest or seize evidence, and that an exigency arising from a need to protect lives or safety be based on knowledge approaching probable cause. See Defs.' Response to Pltfs.' MSJ at 22. According to the Defendants, unlike in United States v. Davis, where the officers had a report of a potential domestic disturbance, the officers claimed that they acted for their own safety, and the officers could verify Coleman's safety, here, the Defendant Officers had a report of a domestic disturbance, and reasonably believed that Hargrove might injure someone within the house and could not verify whether someone was injured. See Defs.' Response to Pltfs.' MSJ at 21-22.

         According to the Defendants, in Storey v. Taylor, after the officers arrived, Storey informed them that he and his wife had been arguing, and refused to permit the officers to enter the home. See Defs.' Response to Pltfs.' MSJ at 22. The Defendants describe that, when Storey's wife returned from the grocery store, the officers observed no risk to her safety, and they arrested her husband before they asked her to come to the door. See Defs.' Response to Pltfs.' MSJ at 23. The Defendants note that, in Storey v. Taylor, the officers received information of a loud argument from an anonymous caller, and saw no indication of violence or an argument, unlike here, where the officers did not know that they were dealing with a verbal argument, but responded to a male and female fighting outside, which an identified caller had reported, and could not verify the victim's safety. See Defs.' Response to Pltfs.' MSJ at 23-24. The Defendants summarize that existing precedent does not put beyond debate the question whether the Officer Defendants violated the Plaintiffs' Fourth Amendment rights on these facts, as the clearly established prong requires. See Defs.' Response to Pltfs.' MSJ at 24.

         The Defendants attack the Plaintiffs' second argument by contending that, here, unlike in Storey v. Taylor, exigent circumstances existed to justify the orders to Ward and Hargrove. See Defs.' Response to Pltfs.' MSJ at 24 (citing Storey v. Taylor, 696 F.3d at 993). The Defendants, accordingly, focus their argument on whether the Defendant Officers had probable cause to arrest Ward and Hargrove for resisting, evading, or obstructing an officer in violation of the Hobbs Municipal Code 9.04.080. See Defs.' Response to Pltfs.' MSJ at 24-25. The Defendants aver that the lapel camera videos show that Ward and Hargrove “interfered with, opposed, obstructed and resisted the Officers' lawful orders as they attempted to discharge their duty to investigate the call.” Defs.' Response to Pltfs.' MSJ at 26. The Defendants note that Hargrove did not obey Gastelum's orders to keep open the screen door or to leave the garage; that both Ward and Hargrove evaded the Defendant Officers; and that Ward tried to prevent the Defendant Officers from stopping Ward. See Defs.' Response to Pltfs.' MSJ at 26. According to the Defendants, these actions gave the Defendant Officers probable cause for the arrests. See Defs.' Response to Pltfs.' MSJ at 26.

         3. The Pltfs.' Reply to Pltfs.' MSJ.

         The Plaintiffs reply. See Pltfs.' Reply to Pltfs.' MSJ at 1-12. The Plaintiffs first aver that Storey v. Taylor stands for the proposition that officers must have more than a report of a domestic dispute to have probable cause or exigent circumstances. See Pltfs.' Reply to Pltfs.' MSJ at 4-5. The Plaintiffs reiterate Storey v. Taylor's facts and argue that they resemble this case, and note that the Defendants' arguments about Hargrove's intoxication and Ward's and Hargrove's belligerence must fail, and note that Storey v. Taylor indicates that belligerence and the possibility of a victim within the residence do not justify warrantless entry. See Pltfs.' Reply to Pltfs.' MSJ at 5. The Plaintiffs reiterate their arguments about United States v. Davis. See Pltfs.' Reply to Pltfs.' MSJ at 6. The Plaintiffs also cite Lundstrom v. Romero, 616 F.3d 1108 (10th Cir. 2010), wherein a 911 caller reported that a woman at Lundstrom's residence was beating a toddler, but stated that the caller could not see anything, and an officer, who arrived forty minutes later, heard “a high-pitched voice” at the house. Pltfs.' Reply to Pltfs.' MSJ at 6-7. According to the Plaintiffs, when the officer explained that she came to check on the child's welfare, Lundstrom responded that no children were at the residence and refused the officer entry to the home to verify that statement. See Pltfs.' Reply to Pltfs.' MSJ at 7. The Plaintiffs explain that the Tenth Circuit concluded that the officer had no reasonable ground to believe that an imminent threat existed. See Pltfs.' Reply to Pltfs.' MSJ at 7.

         The Plaintiffs attack the Defendants' arguments. See Pltfs.' Reply to Pltfs.' MSJ at 7. The Plaintiffs opine on Gastelum's reasons for entering Todd's home:

It's as if Gastelum decided to throw onto paper all the reasons for entry that the Tenth Circuit has written are impermissible reasons. Reason (a) is clearly insufficient on its own. Reason (b) is the specific inference that Davis disallowed officers' making on a domestic disturbance call. Reason (c) -- lack of objective evidence -- is a reason that entry is prohibited. Reason (d) is wild speculation and hyperbole, unmoored from any of the facts known to Gastelum. Defendants provide the Court with a slew of unsubstantiated possibilities as the basis for their entry in 9 Acoma Court.

         Pltfs.' Reply to Pltfs.' MSJ at 8. The Plaintiffs add that the Defendant Officers knew nothing about anyone in the house or if anyone was in the house, and indicate that, “[i]n U.S. v. Martinez, 686 F.Supp.2d 1161 (D.N.M. 2009)(Browning, J.), affd, U.S. v. Martinez, 643 F.3d 1292, (10th Cir. 2011), the court held that to be concerned about the life or safety of someone in a house, officers must have a reasonable belief that someone is in the house.” Pltfs.' Reply to Pltfs.' MSJ at 8-9. The Plaintiffs indicate that, in Brigham City v. Stuart, the officers heard and saw the altercation in the house and that, in United States v. Najar, the dispatcher could not contact the person who initially made the 911 call, and the Tenth Circuit emphasized that, there, a person could reasonably believe that the defendant was trying to prevent a victim from communicating with the officers. See Pltfs.' Reply to Pltfs.' MSJ at 10. According to the Plaintiffs, here, the Defendant Officers could see Ward and Hargrove, and Ward and Hargrove advised the Defendant Officers that no domestic violence had occurred. See Pltfs.' Reply to Pltfs.' MSJ at 10. The Plaintiffs conclude by repeating their arguments about probable cause. See Pltfs.' Reply to Pltfs.' MSJ at 11.

         4. The Defs.' MSJ.

         In the Defs.' MSJ, the Defendants ask that the Court dismiss all the Plaintiffs' claims. See Defs.' MSJ at 2. The Defendants repeat their arguments from the Defs.' Response to Pltfs.' MSJ about Counts III, IV, and V, and request that the Court dismiss Counts III, IV, and V on qualified immunity grounds, or grant the Defendants summary judgment on those Counts. See Defs.' MSJ at 6-21. The Defendants contend that § 1983 does not provide for respondeat superior liability, so the City of Hobbs cannot be liable for the Defendant Officers' actions for Counts III through V. See Defs.' MSJ at 22.

         The Defendants then address the battery claims in Counts I and II. See Defs.' MSJ at 22. The Defendants explain that, during an arrest, an officer may use the amount of force deemed reasonably necessary in the circumstances. See Defs.' MSJ at 23 (citing Bledsoe v. Garcia, 742 F.2d 1237, 1240 (10th Cir. 1984); Mead v. O'Connor, 1959-NMSC-077, ¶ 4, 66 N.M. 170, 172-73). The Defendants indicate that, in analyzing battery during an arrest, New Mexico courts apply an objective reasonableness standard and defer to the federal courts' standards for objective reasonableness. See Defs.' MSJ at 23-24. The Defendants contend that the Defendant Officers used an objectively reasonable amount of force. See Defs.' MSJ at 25. According to the Defendants, Hargrove only complained briefly of pain in his wrists from the detention and the handcuffs, and the Defendant Officers adjusted Hargrove's handcuffs when he complained about them. See Defs.' MSJ at 25. The Defendants also note that Ward had no injury, and that Dale stopped her and handcuffed her quickly. See Defs.' MSJ at 25. The Defendants then add that, because the Plaintiffs cannot establish their battery claims, they cannot establish liability against the City of Hobbs under a respondeat superior theory. See Defs.' MSJ at 26-27.

         5. The Pltfs.' Response to Defs.' MSJ.

         The Plaintiffs respond. See Pltfs.' Response to Defs.' MSJ at 1-16. The Plaintiffs first contend that the Defendant Officers' failure to read the CAD Report is unreasonable as a matter of law and undermines the Defendant Officers' probable cause. See Pltfs.' Response to Defs.' MSJ at 5-6 (citing Maresca v. Bernalillo Cty., 804 F.3d 1301, 1310 (10th Cir. 2015)). The Plaintiffs then address the Defendants' qualified immunity arguments. See Pltfs.' Response to Defs.' MSJ at 6-14. The Plaintiffs aver that United States v. Davis, Storey v. Taylor, and Lundstrom v. Romero establish a constitutional right against law enforcement's interference based on only a neighbor's call about a domestic disturbance. See MSJ Response at 7. The Plaintiffs aver that Lundstrom v. Romero and Storey v. Taylor present clearly established law on this situation, and that, although, in Storey v. Taylor, the officers had an unidentified caller on the 911 call, this fact does not sufficiently differentiate Storey v. Taylor from these facts as to make the clearly established law inapplicable here, and that, if the fact of an identified caller is relevant, it supports the Plaintiffs' position, because the Defendant Officers could have obtained information from that caller about the reported altercation. See Pltfs.' Response to Defs.' MSJ at 10. The Plaintiffs also repeat their contentions related to United States v. Davis. See Pltfs.' Response to Defs.' MSJ at 10-11. The Plaintiffs also argue that, in United States v. Martinez, the Court concluded that officers responded to 911 call, and, when the officers arrived at Martinez' home, they saw no one inside the home, no signs of forced entry, and although, through the home's glass door, the house looked disheveled and the sliding door was unlocked, the officers did not have an objectively reasonable belief that someone was within the home who needed assistance. See Pltfs.' Response to Defs.' MSJ at 11-12. The Plaintiffs also reiterate their arguments that Storey v. Taylor establishes a right against being charged for asserting a right to remain within a home. See Pltfs.' Response to Defs.' MSJ at 13-14. The Plaintiffs also note that they do not bring a respondeat superior claim on Count III. See Pltfs.' Response to Defs.' MSJ at 14 n.2. Regarding the battery claims in Counts I and II, the Plaintiffs contend that, because the Defendant Officers unlawfully arrested Ward and Hargrove, the subsequent harm was also unlawful. See Pltfs.' Response to Defs.' MSJ at 14. The Plaintiffs add that, because the Defendant Officers lacked probable cause for Ward's and Hargrove's arrests, Ward and Hargrove are owed damages. See Pltfs.' Response to Defs.' MSJ at 15-16.

         6. The Hearing.

         The Court began the hearing by noting that it did not see many disputed facts, and that it could likely discuss both the Pltfs.' MSJ and the Defs.' MSJ in one Memorandum Opinion and Order. See Draft Transcript of Hearing at 2:9-15 (taken February 28, 2019)(Court)(“Tr.”).[27] The Court also indicated that the analysis might proceed past the clearly established prong and that the Court might decide the constitutional issues. See Tr. at 4:10-13 (Court). The Plaintiffs indicated that the only disputed fact is what information the Defendants Officers had, but noted that the Plaintiffs could not produce evidence to dispute the Defendants' contentions that they received only the information from the dispatcher. See Tr. at 4:23-5:4 (Kennedy). The Plaintiffs summarized the case's facts, and then described their arguments about United States v. Davis and Storey v. Taylor. See Tr. at 5:6-7:10 (Kennedy). The Plaintiffs also cited cases establishing that, where a person moves toward a home, such an act does not establish probable cause that the person committed a crime and is not a person resisting, because citizens have a right to walk to their homes. See Tr. at 7:10-8:5 (Kennedy). The Court asked whether, if the Defendant Officers had arrived at Todd's house with knowledge that a fight had occurred, that changed the analysis, and whether a jury should consider what information the Defendant Officers had about the fight. See Tr. at 8:6-17 (Court). The Plaintiffs explained that those facts do not change the analysis, because Storey v. Taylor and Lundstrom v. Romero reflect that officers need more than a 911 call about a fight to establish an exigency, because the word “fight” can mean a physical or a verbal fight, and because the Tenth Circuit and the Supreme Court have suggested that such cases turn on reasonableness. See Tr. at 8:18-10:15 (Kennedy). In answer to the Court's next question about writing one Memorandum Opinion and Order, the Plaintiffs confirmed that they envision no problem with the Court issuing one Memorandum Opinion and Order both on the Pltfs.' MSJ and on the Defs.' MSJ. See Tr. at 10:16-25 (Court, Kennedy).

         The Defendants agreed that they see no undisputed facts and that the Court can issue a combined Memorandum Opinion and Order. See Tr. at 11:8-12:14 (Robles, Court). The Defendants explained that the Defendant Officers' lapel videos establish the facts here and, after the Court asked whether the Defendants took the position that the Court has to decide this case as a matter of law based on the lapel videos, the Defendants replied that the Court should decide the Pltfs.' MSJ and the Defs.' MSJ. See Tr. at 11:22-12:15 (Robles, Court). The Defendants also agreed with the Court that the exigency that the parties are debating is the exigency to protect life and limb. See Tr. at 12:16-13:2 (Court, Robles).

         The Defendants then began arguing qualified immunity; they averred that the Defendant Officers would not know that the law here is clearly established, and contended that United States v. Najar provides the closest case to these facts because, in that case, the officers had only “hangups” as evidence that a fight had occurred. Tr. at 18:22 (Robles). See Tr. at 13:8-19:4 (Robles). The Defendants contended that, here, the Defendant Officers were aware that a male and female had been fighting outside and, for safety reasons, the Defendant Officers would not have looked at the full CAD Report while driving. See Tr. at 19:5-20:1 (Robles). The Defendants added that the Defendant Officers had no obligation to engage in further investigation here, where, by communicating with Ward and Hargrove, the Defendant Officers were performing the initial investigation before an arrest. See Tr. at 20:1-20 (Robles). The Defendants then repeated their interpretation of the events at issue. See Tr. at 20:20-23:14 (Robles). The Defendants emphasized that the initial attempt to arrest Ward and Hargrove grew from the Defendant Officers' need to control the scene for further investigation. See Tr. at 23:9-23 (Robles). The Defendants stated that, here, the Defendant Officers engaged only in judgment calls, explained that a court could “go . . . both ways, ” Tr. at 24:14 (Robles), see id at 24:8-14 (Robles), concluded that the Court should ask whether the Defendant Officers acted “so far out of bounds” as to act “in a plainly incompetent manner, ” and urged that the Court conclude that qualified immunity protects the Defendant Officers, see Tr. at 24:14-25:3 (Robles).

         The Court summarized its impression that the Defendants basically concede the Defendant Officers' constitutional violation, but emphasize that no clearly established law existed. See Tr. at 25:4-11 (Court). The Defendants stated that they largely agree with the Plaintiffs but want to address the “dangerously close, ” Tr. at 25:13 (Robles), element of the exigency and emphasized the clearly established argument, see Tr. at 25:12-26:12 (Robles). The Court asked whether the Defendant Officers had grounds to believe that someone was in immediate need of protection, see Tr. at 26:19-25 (Court), and the Defendants indicated that the Defendants Officers knew that a family was inside, that, based on the suddenness with which Hargrove went to enter the house, the Defendant Officers could believe that Hargrove was doing something suspicious, and that Defendant Officers had to make a sudden decision, so that, in these circumstances, their decision was reasonable. See Tr. at 27:1-29:19 (Robles).

         The Plaintiffs commented in rebuttal that the Defendant Officers were supposedly well trained and should be able to apply legal principles, and had stated after the incident that they had no evidence that anyone was harmed or might be harmed, but saw Ward and Hargrove commit a misdemeanor by impeding the investigation. See Tr. at 30:4-31:6 (Kennedy). The Plaintiffs also noted that the Defendants basically admit that the Defendant Officers violated the Fourth Amendment. See Tr. at 31:15-19 (Kennedy). The Plaintiffs continued that, in Storey v. Taylor, the Tenth Circuit addressed whether an investigative detention was sufficient to justify entry into a home and the Tenth Circuit stated that an exigency is necessary, and noted that United States v. Davis involves a situation in which the defendant misled the police by telling them that his wife was not home and in which the wife later emerged to speak with the defendants and tried to stop Davis from shutting the house door on the defendants, and the Tenth Circuit still stated that Davis' rapid retreat into the home was not enough to establish an exigency. See Tr. at 32:7-33:24 (Kennedy). The Plaintiffs emphasized that, here, the Defendant Officers admitted that they entered the house to arrest Ward and Hargrove, and that they did not have a subjective belief in danger to anyone inside. See Tr. at 33:25-34:6 (Kennedy). The Court then concluded by indicating that it believes that the Defendant Officers violated the Fourth Amendment and that it is not sure how much clearer the law needs to be to meet the clearly established requirement. See Tr. at 34:15-20 (Court).

         LAW REGARDING MOTIONS FOR SUMMARY JUDGMENT

         Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary judgment 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). “The movant bears the initial burden of ‘show[ing] that there is an absence of evidence to support the nonmoving party's case.'” Herrera v. Santa Fe Pub. Sch., 956 F.Supp.2d 1191, 1221 (D.N.M. 2013)(Browning, J.)(alteration in Herrera v. Santa Fe Pub. Sch.)(quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991)). See Celotex Corp. v. Catrett 477 U.S. 317, 323 (1986)(“Celotex”).

Before the court can rule on a party's motion for summary judgment, the moving party must satisfy its burden of production in one of two ways: by putting evidence into the record that affirmatively disproves an element of the nonmoving party's case, or by directing the court's attention to the fact that the non-moving party lacks evidence on an element of its claim, “since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323-25. On those issues for which it bears the burden of proof at trial, the nonmovant “must go beyond the pleadings and designate specific facts to make a showing sufficient to establish the existence of an element essential to his case in order to survive summary judgment.” Cardoso v. Calbone, 490 F.3d 1194, 1197 (10th Cir. 2007)(internal quotations and brackets omitted).

Plustwik v. Voss of Nor. ASA, No. 2:11CV00757 DS, 2013 WL 1945082, at *1 (D. Utah May 9, 2013)(Sam, J.). “If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence -- using any of the materials specified in Rule 56(c) -- that would entitle it to a directed verdict if not controverted at trial.” Celotex, 477 U.S. at 331 (Brennan, J., dissenting)(emphasis in Celotex).[28] Once the movant meets this burden, rule 56 requires the nonmoving party to designate specific facts showing that there is a genuine issue for trial. See Celotex, 477 U.S. at 324; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)("'Liberty Lobby”). A moving party may also obtain summary judgment in its favor without itself introducing evidence by arguing that the nonmoving party, who bears the burden of proof, has not produced sufficient evidence to establish a prima facie case. See, e.g., Celotex, 477 U.S. at 323-25 (providing that summary judgment is proper where a plaintiff lacks evidence on an essential element of its case); Morales v. E.D. Entyre & Co., 382 F.Supp.2d 1252, 1272 (D.N.M. 2005)(Browning, J.)(granting summary judgment because the plaintiff lacked competent evidence that the defendants defectively manufactured an oil distributor). In American Mechanical Solutions, LLC v. Northland Piping, Inc., 184 F.Supp.3d 1030 (D.N.M. 2016)(Browning, J.), the Court confronted such a situation, and granted summary judgment for the defendant when the plaintiff did not offer expert evidence supporting causation or proximate causation in its breach-of-contract or breach-of-the-implied-warranty-of-merchantability claims. See 184 F.Supp.3d at 1075-78. The Court reasoned that the plaintiff could prove neither the breach-of-contract claim's causation requirement nor the breach-of-the-implied-warranty-of-merchantability claim's proximate-causation requirement with mere common or lay knowledge, and so New Mexico law required that the plaintiff bolster its arguments with expert testimony, which the plaintiff had not provided. See 184 F.Supp.3d at 1067, 1073, 1075, 1079. Without the requisite evidence, the plaintiff, the Court determined, failed to prove “‘an essential element of the nonmoving party's case, '” rendering “‘all other facts immaterial.'” 184 F.Supp.3d at 1075 (quoting Plustwik v. Voss of Nor. ASA, 2013 WL 1945082, at *1).

         The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int'l Inc. v. First Affiliated Sec, Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993)(“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” (quoting Applied Genetics Int'l, Inc. v. First Affiliated Sec, Inc., 912 F.2d at 1241). Rule 56(c)(1) provides: “A party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials . . . .” Fed.R.Civ.P. 56(c)(1)(A). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his pleadings.” Liberty Lobby, 477 U.S. at 259. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir. 1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980)(“‘[O]nce a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.'” (quoting Coleman v. Darden, 595 F.2d 533, 536 (10th Cir. 1979))).

         Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat'l Ins. v. Omer, No. 07-2123-JAR, 2008 WL 2309005, at *1 (D. Kan. June 2, 2008)(Robinson, J.)(citing Fed.R.Civ.P. 56(e); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006)(McConnell, J.)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.'” Colony Nat'l Ins. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)).

         To deny a motion for summary judgment, genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Liberty Lobby, 477 U.S. at 250. A mere “scintilla” of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Liberty Lobby, 477 U.S. at 248). Rather, there must be sufficient evidence on which the fact finder could reasonably find for the nonmoving party. See Liberty Lobby, 477 U.S. at 251 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448 (1871)(“Schuylkill”); Vitkus v. Beatrice Co., 11 F.3d at 1539). “[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249 (citations omitted). Where a rational trier of fact, considering the record as a whole, cannot find for the nonmoving party, “there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)(quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).

         When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court's role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Liberty Lobby, 477 U.S. at 249. Second, the ultimate standard of proof is relevant for purposes of ruling on a summary judgment, such that, when ruling on a summary judgment motion, the court must “bear in mind the actual quantum and quality of proof necessary to support liability.” Liberty Lobby, 477 U.S. at 254. Third, the court must resolve all reasonable inferences and doubts in the nonmoving party's favor, and construe all evidence in the light most favorable to the nonmoving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55 (1999); Liberty Lobby, 477 U.S. at 255 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” (citing Adicks v. S. H. Kress & Co., 398 U.S. 144, 158-59 (1970))). Fourth, the court cannot decide any issues of credibility. See Liberty Lobby, 477 U.S. at 255.

         There are, however, limited circumstances in which the court may disregard a party's version of the facts. This doctrine developed most robustly in the qualified immunity arena. In Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court concluded that summary judgment is appropriate where video evidence clearly contradicted the plaintiff s version of the facts. See 550 U.S. at 378-81. The Supreme Court explained:

At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. [at] 586-587 . . . (footnote omitted). “[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. [at] 247-248 . . . . When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.
That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. Respondent's version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.

Scott v. Harris, 550 U.S. at 380-81 (alterations in Scott v. Harris)(emphasis in Liberty Lobby).

         The Tenth Circuit applied this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir. 2009), and explained:

[B]ecause at summary judgment we are beyond the pleading phase of the litigation, a plaintiff's version of the facts must find support in the record: more specifically, “[a]s with any motion for summary judgment, ‘[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts[.]'” York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008)(quoting Scott, 550 U.S. at 380); see also Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1258 (10th Cir. 2008).

Thomson v. Salt Lake Cty., 584 F.3d at 1312 (second alteration in Thomson v. Salt Lake Cty., third and fourth alterations in York v. City of Las Cruces). “The Tenth Circuit, in Rhoads v. Miller, [352 Fed.Appx. 289 (10th Cir. 2009)(Tymkovich, J.)(unpublished), [29] explained that the blatant contradictions of the record must be supported by more than other witnesses' testimony[.]” Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1249 (D.N.M. 2010)(Browning, J.), aff'd, 499 Fed.Appx. 771 (10th Cir. 2012)(unpublished).

         LAW REGARDING LIABILITY FOR CONSTITUTIONAL VIOLATIONS UNDER

         42 U.S.C. § 1983

         Section 1983 of Title 42 of the United States Code provides:

Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Individual, non-supervisory defendants may be liable if they knew or reasonably should have known that their conduct would lead to the deprivation of a plaintiffs constitutional rights by others, and an unforeseeable intervening act has not terminated their liability. See Martinez v. Carson, 697 F.3d 1252, 1255 (10th Cir. 2012)(“‘The requisite causal connection is satisfied if [the defendants] set in motion a series of events that [the defendants] knew or reasonably should have known would cause others to deprive [the plaintiffs] of [their] constitutional rights.'” (quoting Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir. 2006))). The Supreme Court has made clear that there is no respondeat superior liability under 42 U.S.C. § 1983. See Ashcroft v. Iqbal 556 U.S. 662, 676 (2009)(“Because vicarious liability is inapplicable to Bivens[ v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 392 (1971)(“Bivens”)[30]] and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”); Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997). “An entity cannot be held liable solely on the basis of the existence of an employer-employee relationship with an alleged tortfeasor.” Garcia v. Casaus, No. CIV 11-0011 JB/RHS, 2011 WL 7444745, at *25 (D.N.M. 2011)(Browning, J.)(citing Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 689 (1978)(“Monell ”)). Supervisors can be held liable only for their own unconstitutional or illegal policies, and not for the employees' tortious acts. See Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir. 1998).

         1. Color of State Law.

         “Under Section 1983, liability attaches only to conduct occurring ‘under color of law.'” Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995). The under-color-of-state-law requirement is a “jurisdictional requisite for a § 1983 action, which . . . furthers the fundamental goals of preserving an area of individual freedom by limiting the reach of federal law . . . and avoiding imposing on the state, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.” Jojola v. Chavez, 55 F.3d 488, 492 (10th Cir. 1995). “The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'” West v. Atkins, 487 U.S. at 49 (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). “The authority with which the defendant is allegedly ‘clothed' may be either actual or apparent.” Jojola v. Chavez, 55 F.3d at 493. Accordingly, at a base level, to conclude that an action was taken under color of state law, the court must determine that “‘the conduct allegedly causing the deprivation of a federal right' must be ‘fairly attributable to the State.'” Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1447 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)).

         The Tenth Circuit has directed that, while “‘state employment is generally sufficient to render the defendant a state actor . . . [, ]' at the same time, it is ‘well settled that an otherwise private tort is not committed under color of law simply because the tortfeasor is an employee of the state.'” Jojola v. Chavez, 55 F.3d at 493 (quoting Lugar v. Edmondson Oil Co., 457 U.S. at 935-36 n.18; Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir. 1995)). Thus, “before conduct may be fairly attributed to the state because it constitutes action ‘under color of state law,' there must be ‘a real nexus' between the employee's use or misuse of their authority as a public employee, and the violation allegedly committed by the defendant.” Jojola v. Chavez, 55 F.3d at 493. Whether there is a real nexus in a particular case depends on the circumstances:

The under color of law determination rarely depends on a single, easily identifiable fact, such as the officer's attire, the location of the act, or whether or not the officer acts in accordance with his or her duty. Martinez [v. Colon], 54 F.3d [980, ] 986 [(1st Cir. 1995)]. Instead one must examine “the nature and circumstances of the officer's conduct and the relationship of that conduct to the performance of his official duties.” Id.

David v. City & Cty. of Denver, 101 F.3d 1344, 1353 (10th Cir. 1996).

         2. Individual Liability.

         Government actors may be liable for the constitutional violations that another committed, if the actors “set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights, ” thus establishing the “requisite causal connection” between the government actor's conduct and a plaintiffs constitutional deprivations. Trask v. Franco, 446 F.3d at 1046. The Tenth Circuit has explained that § 1983 liability should be “‘read against the background of tort liability that makes a man responsible for the natural consequences of his actions.'” Martinez v. Carson, 697 F.3d at 1255 (quoting Monroe v. Pape, 365 U.S. 167, 187 (1961), overruled in part by Monell, 436 U.S. at 663). “Thus, Defendants are liable for the harm proximately caused by their conduct.” Martinez v. Carson, 697 F.3d at 1255 (citing Trask v. Franco, 446 F.3d at 1046). As the Court has previously concluded, “a plaintiff who establishes liability for deprivations of constitutional rights actionable under 42 U.S.C. § 1983 is entitled to recover compensatory damages for all injuries suffered as a consequence of those deprivations. The recovery should be guided by common-law tort principles -- including principles of causation . . . .” Train v. City of Albuquerque, 629 F.Supp.2d 1243, 1251 (D.N.M. 2009)(Browning, J.).[31]

         The Tenth Circuit has found liability for those defendants who proximately caused an injury alleged under § 1983 and stated that the fact that the “conduct of other people may have concurrently caused the harm does not change the outcome as to [the defendant], ” so long as there was not a superseding-intervening cause of a plaintiffs harm. Lippoldt v. Cole, 468 F.3d 1204, 1220 (10th Cir. 2006).

Even if a factfinder concludes that the residential search was unlawful, the officers only “would be liable for the harm ‘proximately' or ‘legally' caused by their tortious conduct.” Bodine v. Warwick, 72 F.3d 393, 400 (3d Cir. 1995). “They would not, however, necessarily be liable for all of the harm caused in the ‘philosophic' or but-for sense by the illegal entry.” 72 F.3d at 400. In civil rights cases, a superseding cause, as we traditionally understand it in tort law, relieves a defendant of liability. See, e.g., Warner v. Orange Cnty. Dep't of Prob., 115 F.3d 1068, 1071 (2d Cir. 1997); Springer v. Seaman, 821 F.2d 871, 877 (1st Cir. 1987), abrogated on other grounds by Jett v. Dallas Indep. Sch. Dist, 491 U.S. 701 (1989).

Trask v. Franco, 446 F.3d at 1046. Thus, in the context of a claim under the Fourth Amendment, the Tenth Circuit has held that government actors “may be held liable if the further unlawful detention and arrest would not have occurred but for their conduct and if there were no unforeseeable intervening acts superseding their liability.” Martinez v. Carson, 697 F.3d at 1255. The Tenth Circuit gave an example of a superseding-intervening cause, quoting the Honorable Samuel J. Alito, then-United States Circuit Judge for the United States Court of Appeals for the Third Circuit:

Suppose that three police officers go to a suspect's house to execute an arrest warrant and that they improperly enter without knocking and announcing their presence. Once inside, they encounter the suspect, identify themselves, show him the warrant, and tell him that they are placing him under arrest. The suspect, however, breaks away, shoots and kills two of the officers, and is preparing to shoot the third officer when that officer disarms the suspect and in the process injures him. Is the third officer necessarily liable for the harm caused to the suspect on the theory that the illegal entry without knocking and announcing rendered any subsequent use of force unlawful? The obvious answer is “no.” The suspect's conduct would constitute a “superseding” cause, see Restatement (Second) of Torts § 442 ([Am. Law Inst.] 1965), that would limit the officer's liability. See id. § 440.

Bodine v. Warwick, 72 F.3d at 400. Additionally, “‘[f]oreseeable intervening forces are within the scope of the original risk, and . . . will not supersede the defendant's responsibility.'” Trask v. Franco, 446 F.3d at 1047 (quoting William Lloyd Prosser et al., Prosser and Keeton on Torts § 44, at 303-04 (5th ed.1984)). If

the reasonable foreseeability of an intervening act's occurrence is a factor in determining whether the intervening act relieves the actor from liability for his antecedent wrongful act, and under the undisputed facts there is room for reasonable difference of opinion as to whether such act was wrongful or foreseeable, the question should be left for the jury.

Trask v. Franco, 446 F.3d at 1047 (citing Restatement (Second) of Torts § 453 cmt. (Am. Law. Inst. 1965)).

         3. Supervisory Liability.

         The Tenth Circuit has held that supervisors are not liable under 42 U.S.C. § 1983 unless there is “‘an affirmative link . . . between the constitutional deprivation and either the supervisor's personal participation, . . . exercise of control or direction, or . . . failure to supervise.'” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009)(alterations omitted in Gallagher v. Shelton)(quoting Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997)). Because supervisors can be held liable only for their own constitutional or illegal policies, and not for the torts that their employees commit, supervisory liability requires a showing that such policies were a “‘deliberate or conscious choice.'” Barney v. Pulsipher, 143 F.3d at 1307-08 (quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989)). Cf. Bd. of Cty. Comm'rs v. Brown, 520 U.S. at 404 (“[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force' behind the injury alleged.” (emphasis in Bd. of Cty. Comm'rs v. Brown)).

         The Tenth Circuit has recognized that Ashcroft v. Iqbal limited, but did not eliminate, supervisory liability for government officials based on an employee's or subordinate's constitutional violations. See Garcia v. Casaus, 2011 WL 7444745, at *25-26 (citing Dodds v. Richardson, 614 F.3d 1185 (10th Cir. 2010)). The language that may have altered the landscape for supervisory liability in Ashcroft v. Iqbal is as follows: “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. at 676. The Tenth Circuit in Dodds v. Richardson held:

Whatever else can be said about Iqbal, and certainly much can be said, we conclude the following basis of § 1983 liability survived it and ultimately resolves this case: § 1983 allows a plaintiff to impose liability upon a defendant-supervisor who creates, promulgates, implements, or in some other way possesses responsibility for the continued operation of a policy the enforcement (by the defendant-supervisor or her subordinates) of which “subjects, or causes to be subjected” that plaintiff “to the deprivation of any rights . . . secured by the Constitution . . . .”

Dodds v. Richardson, 614 F.3d at 1199 (quoting 42 U.S.C. § 1983). The Tenth Circuit noted that Ashcroft v. Iqbal “does not purport to overrule existing Supreme Court precedent, ” but stated that “Iqbal may very well have abrogated § 1983 supervisory liability as we previously understood it in this circuit in ways we do not need to address to resolve this case.” Dodds v. Richardson, 614 F.3d at 1200. It concluded that Ashcroft v. Iqbal did not alter “the Supreme Court's previously enunciated § 1983 causation and personal involvement analysis.” Dodds v. Richardson, 614 F.3d at 1200. The Tenth Circuit, based on this conclusion, set forth a test for supervisory liability under § 1983 after Ashcroft v. Iqbal:

A plaintiff may . . .succeed in a § 1983 suit against a defendant-supervisor by demonstrating: (1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation.

Dodds v. Richardson, 614 F.3d at 1199-1200 (citing Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir. 2002)). The Tenth Circuit noted, however: “We do not mean to imply that these are distinct analytical prongs, never to be intertwined.” Dodds v. Richardson, 614 F.3d at 1200 n.8. Relying on the Supreme Court's opinion in Board of County Commissioners v. Brown, the Tenth Circuit reasoned that two of the prongs often, if not always, are sufficient proof that the third prong has been met also:

         We do not mean to imply that these are distinct analytical prongs, never to be intertwined. The Supreme Court explained in the context of § 1983 municipal liability:

Where a plaintiff claims that a particular municipal action itself violates federal law, or directs an employee to do so, resolving these issues of fault and causation is straightforward. Section 1983 itself contains no state-of-mind requirement independent of that necessary to state a violation of the underlying federal right. In any § 1983 suit, however, the plaintiff must establish the state of mind required to prove the underlying violation. Accordingly, proof that a municipality's legislative body or authorized decisionmaker has intentionally deprived a plaintiff of a federally protected right necessarily establishes that the municipality acted culpably. Similarly, the conclusion that the action taken or directed by the municipality or its authorized decisionmaker itself violates federal law will also determine that the municipal action was the moving force behind the injury of which the plaintiff complains.

Dodds v. Richardson, 614 F.3d at 1200 n.8 (quoting Bd. of Cty. Comm'rs v. Brown, 520 U.S. at 404-05). The Tenth Circuit noted that “[w]e think the same logic applies when the plaintiff sues a defendant-supervisor who promulgated, created, implemented or possessed responsibility for the continued operation of a policy that itself violates federal law.” Dodds v. Richardson, 614 F.3d at 1200 n.8. Thus, the Tenth Circuit reduced the test to what can be seen as a two-part test for supervisor liability, requiring the plaintiff to prove “an ‘affirmative' link . . . between the unconstitutional acts by their subordinates and their ‘adoption of any plan or policy . . . -- express or otherwise -- showing their authorization or approval of such misconduct.'” Dodds v. Richardson, 614 F.3d at 1200-01 (quoting Rizzo v. Goode, 423 U.S. 362, 371 (1976)).

         4. Municipal Liability.

         A municipality will not be held liable under § 1983 solely because its officers inflicted injury. See Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006). Rather, to establish municipal liability under § 1983, a plaintiff must demonstrate: (i) that an officer committed an underlying constitutional violation; (ii) that a municipal policy or custom exists; and (iii) that there is a direct causal link between the policy or custom, and the injury alleged. See Graves v. Thomas, 450 F.3d at 1218. When a claim is brought against a municipality for failing to train its officers adequately, the plaintiff must show that the municipality's inaction was the result of deliberate indifference to the rights of its inhabitants. See Graves v. Thomas, 450 F.3d at 1218.

         Establishing an informal policy or custom requires the plaintiff to show that the misconduct was “widespread” -- i.e., that it involved a “series of decisions.” City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). Although the existence or nonexistence of such a policy, practice, or custom is a question of fact for the jury, see Powers v. Hamilton Cty. Pub. Def. Comm'n, 501 F.3d 592, 599 (6th Cir. 2007)(“[T]he evidence showed at least a disputed question of fact as to the existence of its alleged policy or custom . . . .”); Surprenant v. Rivas, 424 F.3d 5, 21 (1st Cir. 2005)(“O'Mara challenges the very existence of the interdicted policy, custom, or practice. Proving the existence of a policy, custom, or practice normally entails questions of fact.”); Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 1999)(“In order to avoid summary judgment, a plaintiff need only show that there is a question of fact regarding whether there is a city custom or policy that caused a constitutional deprivation.”); Gregory v. City of Rogers, 921 F.2d 750, 757 (8th Cir. 1990)(“[A]ppellants have raised material questions of fact whether it was the custom of the Rogers Police Department that officers could use their discretion in deciding whether or not to arrest intoxicated individuals, despite the state statute requiring their arrest.”); Fancher v. Barrientos, No. Civ. 11-118 LH/LAM, 2013 WL 8600085, at *4 (D.N.M. Aug. 19, 2013)(Hansen, J.)(“[A]t this time the record is unclear and it remain a question of fact as to which policy was in place.”); Jacobs v. Dujmovic, 752 F.Supp. 1516, 1525 (D. Colo. 1990)(Babcock, J.)(“[T]he Jacobs have failed to meet their summary judgment burden of showing that it adopted a policy, custom or procedure that caused constitutional violations, or that there is a question of fact as to the existence of such a policy.”), it is not a fact that can be baldly asserted at the pleading stage, see Young v. City of Albuquerque, 77 F.Supp.3d 1154, 1187 (D.N.M. 2014)(Browning, J.); Atwell v. Gabow, Nos. 06-cv-02264-JLK, 07-cv-2063-JLK, 2008 WL 906105, at *6 (D. Colo. March 31, 2008)(Kane, J.). Pleading a municipal policy, custom, or practice is like pleading the breach element of negligence -- which is also ultimately a question of fact for the jury. The plaintiff cannot simply allege that there is a policy in place, but, rather, must plead facts that, if true, would give rise to a plausible inference that such a policy exists. With formal or written policies, satisfying this pleading standard is easy; the plaintiff can simply allege what the policy is and where it is codified. With informal, unwritten policies, customs, or practices, the plaintiff can plead either a pattern of multiple similar instances of misconduct -- no set number is required, and the more unique the misconduct is, and the more similar the incidents are to one another, the smaller the required number will be to render the alleged policy plausible -- or use other evidence, such as a police officers' statements attesting to the policy's existence. The Tenth Circuit has not explicitly held that to be pleading requirements, but they have implied that district courts should analyze policies, practices, or customs under Monell as “legal conclusions” at the pleading stage -- which must evidence factual support, rather than conclusorily alleged -- and not “facts” in and of themselves, to be taken as true at face value:

[T]he complaint alleges that the City of Denver Police Department had an official policy and plan to repress, vilify, and deny rights to Mexicanos, American Indians, and other “oppressed” national minorities, and that, pursuant to that plan, the Department formulated and issued a “get Martinez” policy and instructions. In furtherance of that policy, we are told, the Department kept a dossier on plaintiff, including reports, recordings, and other materials concerning his views, associations, and meetings. The Department also entered into a campaign to charge plaintiff and harass him and others advocating unpopular causes with unfounded prosecutions and to discourage him and others from asserting their rights. In or about October 1973, we are told, the Department, because of racial hatred and in order to chill the assertion of rights, obtained a warrant for the false and unfounded arrest of plaintiff, and, in or about November 1973, the Department “determined, in furtherance of its policy . . . as aforestated, to issue an order to all Denver Police Officers to ‘shoot on sight' plaintiff.”
We think these allegations are clearly sufficient, as a matter of pleading, to satisfy the “policy” or “custom” requirement of Monell.

Martinez v. Winner, 771 F.2d 424, 443-44 (10th Cir. 1985)(citations to the complaint omitted). If a conclusory assertion that the Denver Police Department had such a policy in place would have sufficed to clear the rule 12(b)(6) of the Federal Rules of Civil Procedure bar, the Court sees little reason for the Tenth Circuit to have gone into this detailed recitation. The United States Courts of Appeals for the Seventh and Ninth Circuits have addressed this question squarely, and both have come down on the side that factual allegations giving rise to an inference that the policies exist must support the allegations of the existence of Monell policies. See McCauley v. City of Chi., 671 F.3d 611, 618 (7th Cir. 2011)('In order to state a facially plausible equal-protection claim under Monell the factual allegations in McCauley's complaint must allow us to draw the reasonable inference that the City established a policy or practice . . . .”); Svastics v. City of Beverly Hills, 178 F.3d 1300, 1999 WL 311217, at *1 (9th Cir. May 14, 1999)(unpublished table opinion)(“The district court also properly dismissed the claims against the City because any allegations of an unconstitutional custom or policy, even after amendment of the complaint, remained too conclusory to support a claim pursuant to Monell.”); Strauss v. City of Chi., 760 F.2d 765, 767 (7th Cir. 1985)(“A complaint that tracks Monell's requirement of official policy with bare allegations cannot stand . . . . The absence of any facts at all to support plaintiffs claim renders the allegations mere legal conclusions of Section 1983 liability devoid of any well-pleaded facts . . ." (footnote omitted)).

[T]he mere allegation of a single act of unconstitutional conduct by a municipal employee will not support the inference that such conduct was pursuant to official policies. On the other hand, where the plaintiff alleges a pattern or a series of incidents of unconstitutional conduct, then the courts have found an allegation of policy sufficient to withstand a dismissal motion.

Powe v. City of Chi., 664 F.2d 639, 650 (7th Cir. 1981). In Atwell v. Gabow, the Honorable Thomas K. Kane, United States District Judge for the District of Colorado, dismissed a series of Monell claims on this ground:

From the inception of this litigation, I have admonished counsel regarding the import of Monell and its progeny for Plaintiffs' municipal liability claims and have explicitly ordered them to identify “specific factual allegations supporting the conclusory allegations in the First Amended Complaint that Denver Health and/or Defendant Gabow acting in her official capacity made a policy decision, or engaged in a custom or practice of discrimination, for purposes of municipal liability.
. . . .
. . . Plaintiffs do not identify a custom, policy or practice applicable to all of them that would render Denver Health liable under Monell for the discrimination each claims to have suffered, and none pleads actual facts giving rise to a plausible inference that such a policy, custom or practice existed. Simply aggregating eight individual claims and calling them the result of a “custom or policy of discrimination” is insufficient, as are all of the other conclusory recitations of Canton or similar legal standards as “facts” supporting municipal liability. Plaintiffs' 42 U.S.C. §§ 1981 and 1983 claims against Denver Health or Gabow, Rossman and Alexander in their “official capacities” are therefore DISMISSED.

Atwell v. Gabow, 2008 WL 906105, at *6, *8 (emphasis in original). In Granato v. City & County of Denver, Civil Action No. 11-cv-003047-MSK-BNB, 2011 WL 3820730 (D. Colo. 2011)(Krieger, J.), the Honorable Marcia S. Krieger, now-Senior United States District Judge for the District of Colorado, ruled similarly:

At a minimum, a party asserting a Monell claim must plead sufficient facts to identify the unconstitutional custom or policy that was promulgated and the means by which that custom or policy caused the constitutional violation.
Here, Ms. Granato's allegations of an unconstitutional custom or policy maintained by Denver Health are entirely conclusory. She offers only the “formulaic recitation” of a Monell claim, alleging that Mr. Khazanov “act[ed] and/or fail[ed] to act pursuant to City or State policy, custom, decision, ordinance, regulation, habit, usage or practice in [his] conduct, ” but never identifies precisely what particular custom or policy of Denver Health Mr. Khazanov was acting pursuant to .... As cases like Twombly and Iqbal make clear, such conclusory pleadings are insufficient to state a claim. Accordingly, Denver Health is entitled to dismissal of the Monell claim against it.

Granato v. City & Cty. of Denver, 2011 WL 3820730, at *8 (alterations in original)(footnote and citation omitted). Last, in Young v. City of Albuquerque, the Court dismissed a plaintiff s Monell claims on the same basis:

[F]ar from asserting that the misconduct in this case was widespread, Young has not alleged any facts -- such as statistics, records of complaints filed with the city, or even anecdotal evidence -- that would indicate that the misconduct alleged in this case was more than an isolated incident. In fact, Young cannot point to another instance in which a City of Albuquerque employee has deprived another individual of his or her property rights without due process. A single incident is insufficient to establish the existence of a custom or practice. See City of St. Louis v. Praprotnik, 485 U.S. at 127 (explaining that a custom requires that the alleged misconduct is “widespread” -- i.e., involving a “series of decisions”).

Young v. City of Albuquerque, 77 F.Supp.3d at 1187. These cases all stand for the same proposition: at the pleading stage, the existence of a Monell policy is a conclusion up to which a plaintiff must build, rather than a fact that a plaintiff may baldly assert.

         When there is no formal written policy and the § 1983 plaintiff is relying upon a practice or custom, some courts appear to look for a specific number of prior similar incidents -- often saying that two or three instances will not suffice. See Wilson v. Cook Cty., 742 F.3d 775, 780 (7th Cir. 2014)(“Although this court has not adopted any bright-line rules for establishing what constitutes a widespread custom or practice, it is clear that a single incident -- or even three incidents -- do not suffice.”); Andrews v. Fowler, 98 F.3d 1069, 1076 (8th Cir. 1996)(holding that two instances of misconduct “do not indicate a ‘persistent and widespread' pattern of misconduct that amounts to a city custom or policy of overlooking police misconduct”); Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1304 (5th Cir. 1995)(holding that two incidents of alleged excessive force are insufficient to show policy or custom). Other courts require only that the plaintiff plead that the policy exists, reasoning that the usual rule of pleading -- that courts are to accept all allegations as true at the motion-to-dismiss stage -- applies in the context of pleading a Monell policy, practice, or custom. See Bartholomew v. Fischl, 782 F.2d 1148, 1152-53 (3d Cir. 1986)(holding that a plaintiff who pleaded “a single instance of illegality” had nonetheless sufficiently “pleaded the existence of an official policy or official conduct sufficient to support municipal liability”); Estate of Bailey by Oare v. York Cty., 768 F.2d 503, 506-07 (3d Cir. 1985)(holding that courts are to accept allegations in the complaint as being true, including Monell policies, and writing that “a federal court reviewing the sufficiency of a complaint has a limited task”).[32] The Court does not believe a pre-determined numerical pleading standard is best, nor does the Court think that pleading the facts of the plaintiff's individual case, and adding the conclusion “policy, practice, or custom, ” suffice. The plaintiff must plead what he or she knows -- whether it is a number of incidents or some other evidence -- that renders plausible the plaintiff's conclusion that there is a policy, custom, or practice in place. If a police officer says there is a policy, that allegation may be enough to plausibly suggest that the policy exists, even if the plaintiff can plead only one specific instance of conduct. If a police officer says he or she was told to do something down at the stationhouse, that allegation, too, may be enough. The expectation is that the plaintiff must tell the Court at the outset, in the complaint, (i) why he or she thinks a policy exists -- alleging specific facts; and (ii) what he or she thinks the policy is. The Court will then decide whether (i) plausibly suggests (ii). The plaintiff must tell the Court, however, what he or she has, or else the Court will disregard the alleged policy as a naked conclusion. See Griego v. City of Albuquerque, 100 F.Supp.3d 1192, 1213-16 (D.N.M. 2015)(Browning, J).

         LAW REGARDING QUALIFIED IMMUNITY

         Qualified immunity recognizes the “need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.” Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). “Qualified immunity protects federal and state officials from liability for discretionary functions, and from ‘the unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.'” Roybal v. City of Albuquerque, No. CIV 08-0181 JB/LFG, 2009 WL 1329834, at *10 (D.N.M. April 28, 2009)(Browning, J.)(quoting Siegert v. Gilley, 500 U.S. 226, 232 (1991)). The Supreme Court deems it “untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials.” Butz v. Economou, 438 U.S. 478, 504 (1978). See Bivens, 403 U.S. at 392. “The qualified immunity analysis is the same whether the claims are brought under Bivens or pursuant to the post-Civil War Civil Rights Acts.” Breidenbach v. Bolish, 126 F.3d 1288, 1291 (10th Cir. 1997), overruled on other grounds as recognized by Currier v. Doran, 242 F.3d 905 (10th Cir. 2001).

         Under § 1983 and Bivens, a plaintiff may seek money damages from government officials who have violated his or her constitutional or statutory rights. To ensure, however, that fear of liability will not “unduly inhibit officials in the discharge of their duties, ” Anderson v. Creighton, 483 U.S. 635, 638 (1987), the officials may claim qualified immunity; so long as they have not violated a “clearly established” right, the officials are shielded from personal liability, Harlow v. Fitzgerald, 457 U.S. at 818.

That means a court can often avoid ruling on the plaintiffs claim that a particular right exists. If prior case law has not clearly settled the right, and so given officials fair notice of it, the court can simply dismiss the claim for money damages. The court need never decide whether the plaintiffs claim, even though novel or otherwise unsettled, in fact has merit.

Camreta v. Greene, 563 U.S. 692, 705 (2011).

         Qualified immunity shields government officials from liability where “‘their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Pearson v. Callahan, 555 U.S. 223, 231 (2009)(quoting Harlow v. Fitzgerald, 457 U.S. at 818). Qualified immunity also shields officers who have “reasonable, but mistaken beliefs, ” and operates to protect officers from the sometimes “hazy border[s]” of the law. Saucier v. Katz, 533 U.S. 194, 205 (2001). When a defendant asserts qualified immunity, the plaintiff must demonstrate: (i) that the defendant's actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged misconduct. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009). See also Pueblo of Pojoaque v. New Mexico, 214 F.Supp.3d 1028, 1079 (D.N.M. 2016)(Browning, J.).

         1. Procedural Approach to Qualified Immunity.

         The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand.” 555 U.S. at 236. The Supreme Court also noted that, while no longer mandatory, Saucier v. Katz' protocol -- by which a court first decides if the defendant's actions violated the Constitution, and then the court determines if the right violated was clearly established -- will often be beneficial. See Pearson v. Callahan, 555 U.S. at 241. In rejecting the prior mandatory approach, the Supreme Court recognizes that “[t]here are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right, ” and that such an approach burdens district courts and Courts of Appeals with “what may seem to be an essentially academic exercise.” 555 U.S. at 237. The Supreme Court also recognizes that the prior mandatory approach “departs from the general rule of constitutional avoidance and runs counter to the older, wiser judicial counsel not to pass on questions of constitutionality unless such adjudication is unavoidable.” 555 U.S. at 241 (alterations omitted). See Reichle v. Howards, 566 U.S. 658, 664 (2012)(affirming Pearson v. Callahan's procedure and noting that deciding qualified immunity issues on the basis of a right being not “clearly established” by prior caselaw “comports with our usual reluctance to decide constitutional questions unnecessarily”).

         The Supreme Court recognizes seven circumstances where district courts “should address only”[33] the clearly established prong of the qualified immunity analysis: when (i) the first, constitutional violation question “is so factbound that the decision provides little guidance for future cases”; (ii) ”it appears that the question will soon be decided by a higher court”; (iii) deciding the constitutional question requires “an uncertain interpretation of state law”; (iv) ”qualified immunity is asserted at the pleading stage, ” and “the precise factual basis for the . . . claim . . . may be hard to identify”; (v) tackling the first element “may create a risk of bad decisionmaking, ” because of inadequate briefing; (vi) discussing both elements risks “bad decisionmaking, ” because the court is firmly convinced that the law is not clearly established and is thus inclined to give little thought to the existence of the constitutional right; or (vii) the doctrine of “constitutional avoidance” suggests the wisdom of passing on the first constitutional question when “‘it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right.'” Kerns v. Bader, 663 F.3d 1173, 1180-81 (10th Cir. 2011)(quoting Pearson v. Callahan, 555 U.S. at 236-42). Regarding the last of these seven circumstances, the Supreme Court has clarified that courts may “avoid avoidance” and address the first prong before the second prong in cases involving a recurring fact pattern, where guidance on the constitutionality of the challenged conduct is necessary, and the conduct is likely to face challenges only in the qualified immunity context. Camreta v. Greene, 563 U.S. at 706-07. See Kerns v. Bader, 663 F.3d at 1181.[34] “Courts should think carefully before expending ‘scarce judicial resources' to resolve difficult and novel questions of constitutional or statutory interpretation that will ‘have no effect on the outcome of the case.'” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)(quoting Pearson v. Callahan, 555 U.S. at 236-37).[35] See Camreta v. Greene, 563 U.S. at 707 (“In general, courts should think hard, and then think hard again, before turning small cases into large ones.”). The Tenth Circuit will remand a case to the district court for further consideration when the district court has given only cursory treatment to qualified immunity's clearly established prong. See Kerns v. Bader, 663 F.3d at 1182. See also Pueblo of Pojoaque v. New Mexico, 214 F.Supp.3d at 1082-83.

         2. Clearly Established Rights.

         To determine whether a right was clearly established, a court must consider whether the right was sufficiently clear that a reasonable government employee would understand that what he or she did violated a right. See Casey v. W. Las Vegas Indep. Sch. Dist, 473 F.3d 1323, 1327 (10th Cir. 2007). “A clearly established right is generally defined as a right so thoroughly developed and consistently recognized under the law of the jurisdiction as to be ‘indisputable' and ‘unquestioned.'” Lobozzo v. Colo. Dep't of Corr., 429 Fed.Appx. 707, 710 (10th Cir. 2011)(unpublished)(quoting Zweibon v. Mitchell 720 F.2d 162, 172-73 (D.C. Cir. 1983)).

         “Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Currier v. Doran, 242 F.3d at 923. “In determining whether the right was ‘clearly established,' the court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether ‘the contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.'” Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir. 2001)(alteration in original)(quoting Saucier v. Katz, 533 U.S. at 202). The Supreme Court has clarified that qualified immunity's clearly established prong is a very high burden for the plaintiff: “A Government official's conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. at 741. “In other words, ‘existing precedent must have placed the statutory or constitutional question beyond debate.'” Reichle v. Howards, 566 U.S. at 664 (quoting Ashcroft v. al-Kidd, 563 U.S. at 741). “[Q]ualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.'” Mullenix v. Luna, 136 S.Ct. 305, 308 (2015)(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

         “The operation of this standard, however, depends substantially upon the level of generality at which the relevant ‘legal rule' is to be identified.” Anderson v. Creighton, 483 U.S. at 639. The Supreme Court has stated: “[T]he clearly established right must be defined with specificity.” City of Escondido v. Emmons, 139 S.Ct. 500, 503 (2019). “The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.” Ashcroft v. al-Kidd, 563 U.S. at 742. “[T]the clearly established law must[, rather, ] be ‘particularized' to the facts of the case, ” White v. Pauly, 137 S.Ct. 548, 552 (2017)(quoting Anderson v. Creighton, 483 U.S. at 640); under this view of the clearly established prong, a court should inquire whether clearly established law makes improper the actions that the officer took in the case's circumstances, see City of Escondido v. Emmons, 139 S.Ct. at 503 (directing the Court of Appeals to ask, in excessive force cases, “whether clearly established law prohibited the officers from stopping and taking down a man in these circumstances”). See Ziglar v. Abbasi, 137 S.Ct. 1843, 1866 (2017)(“[T]he dispositive question is ‘whether the violative nature of particular conduct is clearly established.'” (quoting Mullenix v. Luna, 136 S.Ct. at 308)); District of Columbia v. Wesby, 138 S.Ct. 577, 591 (2018)(“Tellingly, neither the panel majority nor the partygoers have identified a single precedent -- much less a controlling case or robust consensus of cases -- finding a Fourth Amendment violation under similar circumstances.”).

         The Tenth Circuit has, however, emphasized the Supreme Court's statements that, in some situations, “clearly established general rules of law can provide notice of the unlawfulness of an official's conduct in appropriate circumstances.” A.N. by & through Ponder v. Syling, No. 18-2112, __ F.3d __, 2019 WL 2910798, at *4 (10th Cir. July 8, 2019). The Tenth Circuit has commented: “‘[G]eneral statements of the law are not inherently incapable of giving fair and clear warning to officers' that their conduct violates a constitutional right, and that such statements provide the required notice when ‘the unlawfulness' of their conduct is ‘apparent' from the preexisting law.” A.N. by & through Ponder v. Syling, 2019 WL 2910798, at *4 (quoting White v. Pauly, 137 S.Ct. at 552). According to the Tenth Circuit, “In other words, ‘[g]eneral statements of the law can clearly establish a right for qualified immunity purposes if they apply with obvious clarity to the specific conduct in question.' And this is so ‘even though the very action in question has not previously been held unlawful.'” A.N. by & through Ponder v. Syling, 2019 WL 2910798, at *4 (first quoting Halley v. Huckaby, 902 F.3d 1136, 1149 (10th Cir. 2018), and then quoting Hope v. Pelzer, 536 U.S. 730 (2002)). The Tenth Circuit has cautioned that such an approach is inappropriate where a case involves “relevant ambiguities.” Colbruno v. Kessler, No. 18-1056, F.3d __, 2019 WL 2751434, at *6 (10th Cir. July 2, 2019)(citing Aldaba v. Pickens, 844 F.3d 870, 879 (10th Cir. 2016)(“ Aldaba II”); Wilson v. City of Lafayette, 510 Fed.Appx. 775, 778 (10th Cir. 2013)(unpublished); Thomson v. Salt Lake Cty., 584 F.3d at 1315-17).

         Although the Tenth Circuit has recognized a sliding scale for qualified immunity's clearly established inquiry, see Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007)(“We have therefore adopted a sliding scale to determine when law is clearly established.”), the Tenth Circuit may have since walked back its holding that a sliding-scale is the appropriate analysis, see Aldaba v. Pickens, 844 F.3d at 876. In Aldaba II, the Tenth Circuit reconsidered its ruling from Aldaba v. Pickens, 777 F.3d 1148 (10th Cir. 2015)(“Aldaba I”), that officers were entitled to qualified immunity after the Supreme Court vacated its decision in light of Mullenix v. Luna. In concluding that it had previously erred in Aldaba I, the Tenth Circuit determined:

We erred . . . by relying on excessive-force cases markedly different from this one. Although we cited Graham v. Connor, 490 U.S. 386 (1989) to lead off our clearly-established-law discussion, we did not just repeat its general rule and conclude that the officers' conduct had violated it. Instead, we turned to our circuit's sliding-scale approach measuring degrees of egregiousness in affirming the denial of qualified immunity. We also relied on several cases resolving excessive-force claims. But none of those cases remotely involved a situation as here.

Aldaba II 844 F.3d at 876. The Tenth Circuit further noted that its sliding-scale approach may have fallen out of favor, because the sliding-scale test relies, in part, on Hope v. Pelzer, 536 U.S. at 739-41, and the Supreme Court's most recent qualified immunity decisions do not invoke that case. See Aldaba II 844 F.3d at 874 n.1. See also Lowe v. Raemisch, 864 F.3d 1205, 1211 n.10 (10th Cir. 2017). The Tenth Circuit explained:

To show clearly established law, the Hope Court did not require earlier cases with “fundamentally similar” facts, noting that “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Id. at 741 . . . . This calls to mind our sliding-scale approach measuring the egregiousness of conduct. See Morris v. Noe, 672 F.3d 1185, 1196 (10th Cir. 2012). But the Supreme Court has vacated our opinion here and remanded for us to reconsider our opinion in view of Mullenix, which reversed the [United States Court of Appeals for the] Fifth Circuit after finding that the cases it relied on were “simply too factually distinct to speak clearly to the specific circumstances here.” 136 S.Ct. at 312. We also note that the majority opinion in Mullenix does not cite Hope v. Pelzer . . . . As can happen over time, the Supreme Court might be emphasizing different portions of its earlier decisions.

Aldaba II 844 F.3d at 874 n.1. Since Aldaba II the Supreme Court has reversed, per curiam, another Tenth Circuit qualified immunity decision. See White v. Pauly, 137 S.Ct. at 551. In White v. Pauly, the Supreme Court explained: “The panel majority misunderstood the ‘clearly established' analysis: It failed to identify a case where an officer acting under similar circumstances as Officer White was held to have violated the Fourth Amendment.” White v. Pauly, 137 S.Ct. at 552.[36] The Supreme Court's per curiam reversals appear to have the Tenth Circuit stepping lightly around qualified immunity's clearly established prong, see, e.g., Choate v. Huff, No. 18-3157, 2019 WL 3228928, at *2 (10th Cir. July 18, 2019)(unpublished); Perry v. Durborow, 892 F.3d 1116, 1123-27 (10th Cir. 2018); Rife v. Jefferson, 742 Fed.Appx. 377, 381-88 (10th Cir. 2018)(unpublished); Malone v. Bd. of Cty. Comm'rs for Cty. of Dona Ana, 707 Fed.Appx. 552, 555-56 (10th Cir. 2017)(unpublished); Brown v. City of Colo. Springs, 709 Fed.Appx. 906, 915 (10th Cir. 2017)(unpublished); Aldaba II, 844 F.3d at 874, and willing to reverse district court decisions should the district court conclude that the law is clearly established, but see A.N. by & through Ponder v. Syling, 2019 WL 2910798, at *5 (concluding that the publication of information about an arrested and detained juvenile violated clearly established equal protection law prohibited treating the juvenile differently than similarly situated juveniles); Matthews v. Bergdorf, 889 F.3d 1136, 1149-50 (10th Cir. 2018)(holding that a child caseworker was not entitled to qualified immunity, because a caseworker would know that “child abuse and neglect allegations might give rise to constitutional liability under the special relationship exception”); McCoy v. Meyers, 887 F.3d 1034, 1052-53 (10th Cir. 2018)(concluding that there was clearly established law even though the three decisions invoked to satisfy that prong were not “factually identical to this case, ” because those cases “nevertheless made it clear that the use of force on effectively subdued individuals violates the Fourth Amendment”).

         LAW REGARDING FOURTH AMENDMENT SEIZURES

         For purposes of analyzing Fourth Amendment seizures, the Tenth Circuit has divided interactions between police and citizens into three categories: (i) consensual encounters; (ii) investigative stops; and (iii) arrests. See Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir. 2000). See also Dorato v. Smith, 108 F.Supp.3d 1064, 1118 (D.N.M.

         2015)(Browning, J.)(noting that investigative stops are seizures); United States v. Young, 347 F.Supp.3d 747, 770 (D.N.M. 2018)(Browning, J.)(describing an arrest as a seizure). “A police officer may seize someone either by physical force or a show of authority.” United States v. Roberson, 864 F.3d 1118, 1121 (10th Cir. 2017)(citing United States v. Salazar, 609 F.3d 1059, 1064 (10th Cir. 2010)). “[W]hen an officer does not apply physical force to restrain a subject, a Fourth Amendment seizure occurs only if (a) the officer shows his authority; and (b) the citizen ‘submits to the assertion of authority.'” United States v. Salazar, 609 F.3d at 1064 (quoting California v. Hodari D., 499 U.S. 621, 626 (1991)). “‘[T]he test for existence of a show of authority is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer's words and actions would have conveyed that to a reasonable person.'” United States v. Salazar, 609 F.3d at 1064 (quoting California v. Hodari D., 499 U.S. at 628). “If a reasonable person would feel free to terminate the encounter, then he or she has not been seized.” United States v. Ojeda-Ramos, 455 F.3d 1178, 1183 (10th Cir. 2006)(quoting United States v. Drayton, 536 U.S. 194, 201 (2002)). See California v. Hodari D., 499 U.S. at 627-28 (“[A] person has been ‘seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980))). The standard for submission is also objective, see United States v. Salazar, 609 F.3d at 1064 (citing United States v. Cardoza, 129 F.3d 6, 14 n.4 (1st Cir. 1997)), but “[s]ubmission ‘requires, at minimum, that a suspect manifest compliance with police orders, '” United States v. Roberson, 864 F.3d at 1122 (quoting United States v. Mosley, 743 F.3d 1317, 1326 (10th Cir. 2014)).

         1. Consensual Encounters.

         A consensual encounter occurs when a police officer approaches a person to ask questions under circumstances where a reasonable person would feel free to refuse to answer and to end the encounter. See Oliver v. Woods, 209 F.3d at 1186. For example, officers generally may “go to a person's home to interview him.” United States v. Daoust, 916 F.2d 757, 758 (1st Cir. 1990). “It is not improper for a police officer to call at a particular house and seek admission for the purpose of investigating a complaint or conducting other official business, ” 1 Wayne LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.3(b), at 475 (3d ed. 1996).

         2. Investigative Stops.

         In United States v. King, 990 F.2d 1552 (10th Cir. 1993), the Tenth Circuit noted: “Terry was the first case to recognize that ‘the Fourth Amendment governs “seizures” of the person . . . [other than] arrests' and created a ‘narrowly drawn' exception to the probable cause requirement for lesser government intrusions into an individual's liberty.” United States v. King, 990 F.2d at 1557 (first quoting Terry v. Ohio, 392 U.S. 1, 16 (1968); and then quoting Terry v. Ohio, 392 U.S. at 27). The Tenth Circuit has recognized that, in Terry v. Ohio, the Supreme Court identified two police actions: (i) an investigative detention -- a “stop”; and (ii) a protective search - - a “frisk.” United States v. King, 990 F.2d at 1557 (citing United States v. Sokolow, 490 U.S. 1, 7 (1989); Adams v. Williams, 407 U.S. 143, 147-48 (1972)). The Tenth Circuit explained:

Terry has come to stand for two distinct propositions -- an investigative detention (“stop”) in which a police officer, for the purpose of investigation, may briefly detain a person on less than probable cause, . . . and a protective search (“frisk”) which permits an officer, in the course of an investigative detention, to conduct a limited search for weapons for his or her own protection.

United States v. King, 990 F.2d at 1557. When evaluating either of these actions, a court asks whether the action was reasonable under the Fourth Amendment. See United States v. Wilson, 96 Fed.Appx. 640, 643 (10th Cir. 2004)(unpublished); United States v. King, 990 F.2d at 1557.

         a. Investigative Detentions and Reasonable Suspicion.

         A police-citizen encounter that is not consensual may be a constitutional investigative detention. See Dorato v. Smith, 108 F.Supp.3d at 1118. An investigative detention occurs when an officer stops and briefly detains a person “in order to determine his identity or to maintain the status quo momentarily while obtaining more information.” Oliver v. Woods, 209 F.3d at 1186 (quoting Adams v. Williams, 407 U.S. at 146). Such brief investigative detentions must meet two distinct requirements to be “reasonable” under the Fourth Amendment. Dorato v. Smith, 108 F.Supp.3d at 1118. First, the officer “must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Oliver v. Woods, 209 F.3d at 1186 (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)). Second, the investigative detention that follows the stop must be “reasonably related in scope to the circumstances” which justified the stop in the first place, Terry v. Ohio, 392 U.S. at 20, because the Fourth Amendment imposes “limitations on both the length of the detention and the manner in which it is carried out, ” United States v. Holt, 264 F.3d 1215, 1229 (10th Cir. 2001).

         “For reasonable suspicion to exist, an officer ‘need not rule out the possibility of innocent conduct'; he or she simply must possess ‘some minimal level of objective justification' for making the stop.” United States v. Winder, 557 F.3d 1129, 1134 (10th Cir. 2009)(quoting United States v. Vercher, 358 F.3d 1257, 1261 (10th Cir. 2004)). Information “falling ‘considerably short' of a preponderance standard” will meet the standard for reasonable suspicion. United States v. Winder, 557 F.3d at 1134 (quoting United States v. Arvizu, 534 U.S. 266, 274 (2002)). See Illinois v. Wardlow, 528 U.S. 119, 123 (2000)(noting that “‘reasonable suspicion' is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence”).

         In United States v. Johnson, 364 F.3d 1185 (10th Cir. 2004), the Tenth Circuit held that an officer had reasonable suspicion to continue questioning and to frisk a suspect after: (i) the officer had responded to a call from a citizen who gave his telephone number, and gave a detailed and accurate description of possible criminal activity and of the suspect; (ii) the contact occurred in Albuquerque's highest-crime area; and (iii) the suspect displayed nervous behavior. See 364 F.3d at 1194. The Tenth Circuit noted that the officer's experience and training allowed him to make inferences, based on a combination of the surrounding circumstances, that criminal activity was afoot. See 364 F.3d at 1194 (“His suspicions were particularized to [the suspect], and were based on how his training and experience taught him to interpret a number of objectively reasonable details.”). While many of the factors that the Tenth Circuit considered would not, without more, have given rise to reasonable suspicion, the combination of circumstances was sufficient. See 364 F.3d at 1193 (noting that the district court had erred, because “[a]ll of these factors, mitigating and aggravating, should have been analyzed as part of the totality of the circumstances faced by [the officer] at the inception of the detention”).

         In United States v. Ceballos, 355 Fed.Appx. 226 (10th Cir. 2009)(unpublished), the police officer observed a young girl walking down the street at night. See 355 Fed.Appx. at 227-28. A truck pulled alongside the girl, the driver of the truck and the girl spoke briefly, then the truck drove ahead, and the girl continued on her walk. See 355 Fed.Appx. at 228. Rather than leave, however, the truck drove ahead and parked with its lights off at a dark spot on the road by which the girl would have to walk. See 355 Fed.Appx. at 228. The officer spoke to the girl, who seemed unconcerned and told him that the man in the truck had asked only if she needed a ride; she had refused. See 355 Fed.Appx. at 228. Not investigating any particular crime or suspected crime, and admittedly acting on a “hunch, ” the officer turned on his emergency lights and pulled behind the truck. 355 Fed.Appx. at 228, 229. Upon talking to the truck's driver, Ceballos, the officer discovered that Ceballos' breath smelled of alcohol, that he did not have a driver's license, and that he had a gun and other items in his vehicle. See 355 Fed.Appx. at 227-29. The Tenth Circuit concluded that the facts available to the officer would have led a reasonable officer to conclude that reasonable suspicion existed and that the officer's “subjective characterization of his actions is irrelevant.” 355 Fed.Appx. at 229. The Tenth Circuit explained, in an opinion that the Honorable Michael R. Murphy, now-Senior United States Circuit Judge for the Tenth Circuit, wrote and the Honorable Mary Beck Briscoe, United States Circuit Judge for the Tenth Circuit, and the Honorable Robert H. McWilliams, the late United States Circuit Judge for the Tenth Circuit, joined:

A review of the totality of the circumstances shows Gallegos was not acting on an unparticularized hunch; during his testimony he articulated specific facts that caused him to suspect Ceballos intended to assault or abduct the teenage pedestrian. Specifically, at the time Gallegos initiated the traffic stop, he had observed Ceballos slow his vehicle as he passed a teenage girl walking alone late at night. He then observed Ceballos alter his route by making a U-turn and following the girl down a narrow, nearly deserted residential street. Ceballos pulled alongside the girl, who he did not know, and asked her if she wanted a ride. She refused, telling him she lived up the street. Ceballos then drove further down the road, pulled into a driveway as if to turn around and return to the main road, but instead backed out and drove a few feet further east, in the same direction the girl was walking. He parked in a dark location and turned off his lights.
. . . .
We agree with the Government that Officer Gallegos had reasonable suspicion to stop and detain Ceballos. Ceballos showed an interest in a teenage girl he did not know, to the point that he changed his route to follow her down a dark street, offered her a ride, and then parked where the girl would be required to walk past him as she continued to her home. The facts found by the district court, viewed in totality, amply support the constitutionality of the investigative detention.

355 Fed.Appx. at 229. The Tenth Circuit did not require the officer to identify the particular crime of which the officer had reasonable suspicion or even to acknowledge having reasonable suspicion. See 355 Fed.Appx. at 229. The Tenth Circuit was content to find that a reasonable officer would have reasonable suspicion that “Ceballos intended to assault or abduct the teenage pedestrian.” 355 Fed.Appx. at 229. The Tenth Circuit demanded only that an officer have facts from which a reasonable officer could form a reasonable suspicion that criminal conduct was occurring or was about to occur. See 355 Fed.Appx. at 229.

         In United States v. Aragones, 483 Fed.Appx. 415 (10th Cir. 2012)(unpublished), the Tenth Circuit found reasonable suspicion based upon an officer's knowledge of the defendant's

(1) gang tattoo; (2) presence in a high crime area; (3) abrupt move away from the officer as soon as [the defendant] saw [the officer]; (4) glancing about in a manner consistent with an attempt to find a route to flee; and, (5) approach to [a private] home's back door without conversing with the residents visible inside.

483 Fed.Appx. at 417. At the district court level, in ruling on the motion to suppress, the Honorable Martha A. Vázquez, United States District Court Judge for the District of New Mexico, had concluded that, because the defendant's conduct in standing outside a private residence and looking in was “‘consistent with the most benign of conduct, including a visit to a friend's house or calling upon a neighbor for assistance, '” and that the officer did not have reasonable suspicion at the time of the stop and should have waited longer to rule out innocent conduct. 483 Fed.Appx. at 418 (quoting United States v. Aragones, No. CR 10-2453 MV, 2011 WL 13174481, at *19 (D.N.M. June 10, 2011)(Vázquez, J.)). The Tenth Circuit disagreed, however, stating: “The problem is that conduct giving rise to reasonable suspicion sufficient to support an investigative detention can be -- and often is -- consistent with innocent behavior.” United States v. Aragones, 483 Fed.Appx. at 418. The Tenth Circuit noted that, moreover, the defendant's conduct was not necessarily innocent, because an Albuquerque public ordinance prohibits “[e]ntering upon any private property and looking into any occupied dwelling without the consent of the occupant or owner of the dwelling.” 483 Fed.Appx. at 417 (quoting Albuquerque, N.M., Ordinance § 12-2-21(B)). The Tenth Circuit, thus, reversed Judge Vázquez' decision, disagreeing with her conclusion that the officer lacked reasonable suspicion of unlawful activity, and concluded that “a reasonable officer could have suspected that [the defendant] wasn't a welcome guest and did not have consent to look into the home.” 483 Fed.Appx. at 417.

         b. Frisks.

         A “frisk” is “a protective search . . . which permits an officer, in the course of an investigative detention, to conduct a limited search for weapons for his or her own protection.” United States v. King, 990 F.2d at 1557 (citing Adams v. Williams, 407 U.S. at 147-48)). An officer may “stop and frisk” an individual under the Fourth Amendment if a reasonably prudent person “in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry v. Ohio, 392 U.S. at 27. “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry v. Ohio, 392 U.S. at 27. A frisk “must . . . be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Terry v. Ohio, 392 U.S. at 29. In evaluating the validity of the stop-and-frisk, a court should consider the totality of the circumstances. See Florida v. Bostick, 501 U.S. 429, 436 (1991).

         c. Traffic Stops.

         “‘A traffic stop is a seizure within the meaning of the Fourth Amendment . . . .'” United States v. Holt, 264 F.3d at 1220 (quoting United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998)). “‘For the duration of a traffic stop, . . . a police officer effectively seizes everyone in the vehicle, the driver and all passengers.'” United States v. White, 584 F.3d 935, 945 (10th Cir. 2009)(quoting Arizona v. Johnson, 555 U.S. 323, 327 (2009)). “This seizure implicates a passenger's Fourth Amendment interests to the same degree as the driver's.” United States v. Wilson, 96 Fed.Appx. at 643 (citing United States v. Erwin, 875 F.2d 268, 270 (10th Cir. 1989)). “Therefore, both the driver and passenger have standing to challenge the constitutionality of the initial stop.” United States v. White, 584 F.3d at 945. See United States v. Wilson, 96 Fed.Appx. at 643 (“Wilson does not assert any such interest in the truck or its contents[;] [n]evertheless, Wilson may, as he does here, ‘contest the lawfulness of his own detention and seek to suppress evidence found in the vehicle as the fruit of the illegal detention.'” (quoting United States v. Nava-Ramirez, 210 F.3d at 1131; and citing United States v. ...


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