United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR
C. YARBROUGH, UNITED STATES MAGISTRATE JUDGE.
Anthony Kapinski moves for reconsideration of the Court's
June 24, 2019 Memorandum Opinion and Order granting
Defendants' motion for summary judgment on
Plaintiff's federal claims and declining jurisdiction
over Plaintiff's state-law claim. Doc. 29. Plaintiff
argues that the Court failed to draw all reasonable
inferences from the videos at issue in his favor. Because
Plaintiff misapprehends how the Tenth Circuit has directed
district courts to consider the record in determining
arguable probable cause and because Plaintiff does not at all
address the second prong of the qualified immunity analysis,
he does not demonstrate good grounds for reconsideration. The
Court therefore DENIES his motion.
police officer Terra Juarez swore out an arrest warrant for
Plaintiff for double homicide after Plaintiff shot and killed
two people during an altercation in a church parking lot. The
altercation was recorded by two surveillance cameras, but
Defendant Juarez did not describe the video footage in her
affidavit or present the videos to the judge who signed the
warrant for Plaintiff's arrest. A jury later acquitted
Plaintiff on the charges of homicide. Plaintiff sued,
bringing causes of action under § 1983 against
Defendants City of Albuquerque and Terra Juarez for False
Arrest and Imprisonment and Malicious Prosecution. Doc. 5
¶¶ 36-45. Plaintiff also brought a claim against
the City of Albuquerque under the New Mexico Tort Claims Act.
Id. ¶¶ 46-52. Defendants moved for summary
judgment on all claims, raising the defense of qualified
immunity. Doc. 17.
Court granted Defendants' motion for summary judgment on
Plaintiff's § 1983 claims. Doc. 27. In doing so, the
Court found Defendant Juarez did not violate Plaintiff's
constitutional rights because, even considering the
surveillance videos not referenced in the affidavit or shown
to the judge who signed the warrant, arguable probable cause
existed to charge and arrest Plaintiff. Id. at
15-17. The Court further found that, even assuming a
constitutional violation, the law at the time did not clearly
establish a duty to present evidence of self-defense in an
arrest warrant affidavit. Id. at 18-23. In fact, the
only cases addressing the issue have held the opposite: Law
enforcement officers in New Mexico have no duty to present
evidence of self-defense at preliminary criminal proceedings.
Id. at 19-23.
motion for reconsideration focuses on a single paragraph of
the Court's analysis. Doc. 29 at 2. In finding that
Defendant Juarez' affidavit contained probable cause, the
Court remarked that the surveillance videos “neither
show nor definitively rule out whether, while fighting Aiden
(Plaintiff's companion), Jordan [the second person
Plaintiff shot] shoved the car door into Plaintiff.”
Doc. 27 at 16. The Court concluded that, given the low
quantum of evidence required for a finding of probable cause,
“the videos provide probable cause to justify the
arrest of Plaintiff for the murder of Jordan.”
Id. at 17. On reconsideration, Plaintiff argues that
“[b]ecause Plaintiff's interpretation of these
facts as reflecting Jordan ‘slamming the door' is
not ‘blatantly contradicted' by the video evidence,
the Court must construe the video as indicating Jordan
slammed the door on Plaintiff.” Doc. 29 at 4.
styles his motion as a “Motion to Reconsider” but
does not specify the rule pursuant to which the motion is
brought. Doc. 29 at 1. Motions for reconsideration are not
expressly provided for in the Federal Rules of Civil
Procedure. Computerized Thermal Imaging, Inc. v.
Bloomberg, L.P., 312 F.3d 1292, 1296 n.3 (10th Cir.
2002). These motions may be construed in one of two ways: if
filed within the time prescribed under Rule 59(e), it is
treated as a motion to alter or amend the judgment under Rule
59(e); if filed outside of Rule 59(e)'s time limit, it is
treated as a motion for relief from judgment under Rule
60(b). Id. “The standard of review for either
is an abuse of discretion.” Id.
Plaintiff filed this motion on the evening of July 22, the
28th day after the entry of final judgment, the Court
construes his motion as a Rule 59(e) motion. “Grounds
warranting a [Rule 59] motion to reconsider include (1) an
intervening change in the controlling law, (2) new evidence
previously unavailable, and (3) the need to correct clear
error or prevent manifest injustice.” Servants of
Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
“Thus, a motion for reconsideration is appropriate
where the court has misapprehended the facts, a party's
position, or the controlling law.” Id.
“It is not appropriate to revisit issues already
addressed or advance arguments that could have been raised in
prior briefing.” Id.
Local Rule 7.1(a)
Defendants' response to the present motion, they contend
that Plaintiff failed to follow Local Rule 7.1(a) in filing
the motion to reconsider. Doc. 30 at 4. Local Rule 7.1(a)
requires the movant to determine whether a motion is opposed
prior to filing and further provides that “a motion
that omits recitation of a good-faith request for concurrence
may be summarily denied.” D.N.M.LR-Civ. 7.1(a). While
the Court acknowledges that some motions, by their very
nature, will be opposed, there are no exceptions to Local
Rule 7.1(a). Thus, even when an attorney expects that a
motion will be unopposed, that attorney should seek opposing
counsel's position prior to filing the motion.
Plaintiff's motion lacks the required Rule 7.1(a)
statement, and this constitutes independent grounds to deny
the motion. The Court, however, chooses to reach the merits
of Plaintiff's current motion to reconsider rather than
having its fate turn on this rule violation.
Plaintiff Did Not Waive His Argument.
argue that Plaintiff waived his present argument for
reconsideration because he did not dispute Defendants'
proposed Fact No. 13; namely, that Plaintiff “sat down
onto his driver's side seat.” Doc. 30 at 4 (citing
Doc. 17 at 5). Because Defendants misapprehend
Plaintiff's position, the Court rejects their argument.
Defendants' Fact No. 13 was simply a quote from Defendant
Juarez' summary of the surveillance footage. In other
words, Plaintiff did not dispute that Defendant Juarez'
police report stated that Plaintiff sat down onto his
driver's side seat. Agreeing that Defendant Juarez wrote
what she wrote is not the same as agreeing that what she
wrote is accurate. And, Plaintiff proposed his own Fact No. R
which stated: “The surveillance video shows that
despite having seen Plaintiff shoot Francia, Mucher continued
to hold Plaintiff's companion under his arm in a choke
hold, approached Plaintiff aggressively, and pushed the car
door forcefully into Plaintiff's body, knocking him back
down into the car.” Doc. 21 at 4. Further, as Plaintiff
points out in his Reply, while a person typically voluntarily
sits down, it is ...