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Holmes v. Town of Silver City

United States District Court, D. New Mexico

September 17, 2019

TOWN OF SILVER CITY, JAVIER HERNANDEZ, Silver City Police Officer, Defendants.


         Defendant Javier Hernandez asks the Court to grant summary judgment declaring that he is entitled to qualified immunity on all claims brought by Plaintiff Denise-Bradford: Holmes (Plaintiff) pro se. See OFFICER JAVIER HERNANDEZ'S FIRST MOTION FOR SUMMARY JUDGMENT AND FOR QUALIFIED IMMUNITY & MEMORANDUM IN SUPPORT THEREOF (Doc. No. 9) (Motion). Plaintiff Denise-Bradford: Holmes (Plaintiff) opposes the Motion, and the Motion is fully briefed. See FOREIGN STATE PRIVILEGE CASE # 19-448 JAP/CG JUDGE DEMANDED (Doc. No. 13) and FOREIGN STATE PRIVILEGE CASE # 19-448 JAP/CG) JUDGE DEMANDED (Doc. No. 14) (together, Response); OFFICER JAVIER HERNANDEZ'S REPLY TO PLAINTIFF'S RESPONSE [DOC NO. 13] TO FIRST MOTION FOR SUMMARY JUDGMENT AND FOR QUALIFIED IMMUNITY & MEMORANDUM IN SUPPORT THEREOF (Doc. No. 15) (Reply).

         On May 15, 2019, Plaintiff sued Defendants the Town of Silver City (City) and Silver City Police Officer Javier Hernandez (Officer Hernandez) under 42 U.S.C. § 1983. See CIVIL COMPLAINT Title 42 Section 1983 (Doc. No. 2) (Complaint). Plaintiff generally alleges that Defendants violated her rights under the “9th Amendment/ejusden generis/14th Amendment by a non U.S. citizen, as plaintiff has the original Bill of Rights.” (Compl. at p. 3.) Specifically, Plaintiff alleges that Defendants violated her constitutional rights by subjecting her to false arrest and malicious prosecution. (Id. at p. 5.) Plaintiff also claims Officer Hernandez violated her Fifth Amendment rights because he allegedly failed to inform Plaintiff of her Miranda[1] rights at the time of her arrest. (Id.) Finally, Plaintiff accuses Officer Hernandez of civil larceny and violations of her rights under the Ninth Amendment. (Id. at p. 6.) Plaintiff asks for damages totaling $250.000. (Id.)


         Courts should grant a moving party summary judgment only if that party “demonstrates that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.” Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). See Fed. R. Civ. P. 56. “The court should accept as true all material facts asserted and properly supported in the summary judgment motion. But only if those facts entitle the moving party to judgment as a matter of law[.]” Id. Where, as here, a party is proceeding pro se, the court is to liberally construe her pleadings. Holmes v. Grant County Sheriff Dep't, 347 F.Supp.3d 815, 823 (D. N.M. 2018). “But the court [is] not [to] ‘assume the role of advocate for the pro se litigant.'” Id. (citation omitted).

         Qualified immunity protects government officials who are required to exercise their discretion by shielding them from liability for harm allegedly caused by reasonable mistakes. Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009). When a defendant asserts qualified immunity at the summary judgment stage, the burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional right, and (2) the constitutional right was clearly established at the time of defendant's conduct. Courtney v. Okla. ex rel. Dep't of Pub. Safety, 722 F.3d 1216, 1222 (10th Cir. 2013). If a “plaintiff successfully carries his two-part burden, ” the “defendant bears the burden, as an ordinary movant for summary judgment, of showing no material issues of fact remain that would defeat the claim of qualified immunity.” Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014) (citations omitted).

         A right is clearly established if “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Courtney, 722 F.3d at 1222. Under Supreme Court and Tenth Circuit decisions, a law is not clearly established unless existing precedent places the right in question “beyond debate.” Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2083 (2011). However, qualified immunity analysis is not a “scavenger hunt for prior cases with precisely the same facts.” Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004). To prevail against a defendant's assertion of qualified immunity, the plaintiff need not identify a case holding the exact conduct in question unlawful. The focus is whether the law at the time of the defendant's conduct provided the defendant with “fair notice” regarding the legality of his conduct. Id. In determining whether the plaintiff has met her burden of establishing a clearly established constitutional violation, the Court “will construe the facts in the light most favorable to the plaintiff as the nonmoving party.” Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009) (citation omitted).


         The following facts are undisputed.[2] On February 18, 2019, Officer Hernandez stopped Plaintiff and attempted to issue three traffic citations to her for driving without a license, without proof of insurance, and without vehicle registration. (Compl. Ex. B.) In his statement of probable cause, Officer Hernandez described the encounter with Plaintiff. “On February 18, 2019 at approximately 0759 hours I was dispatched to Ace Hardware in reference to a female who was driving without a driver's license, registration, or insurance.” (Mot. Ex. B.) “Central Dispatch advised that the female was in a camouflage truck with a homemade license plate.” (Id.) “As I turned into the Ace Hardware parking lot I observed a female driving a camouflage truck and she was exiting the west side parking lot…once it entered onto Highway 180 I activated my emergency equipment to conduct a traffic stop.” (Id.) “The license plate on the pickup displayed ‘Bradford Republic Diplomat.'” (Id.) Officer Hernandez “made contact with the female who identified herself as Denise Holmes.” (Id.) Officer Hernandez advised Plaintiff the reason that he had stopped her was “because she did not have a license plate on the pickup.” (Id.) Plaintiff “stated that she did not have a license plate because she was not a U.S. citizen.” (Id.) Plaintiff stated that she was “a state national.” (Id.) Officer Hernandez asked Plaintiff for her driver's license and she informed him “she did not have one. She also stated that she should be on a list.” (Id.) Plaintiff “started to threaten” Officer Hernandez that if she was picked up, Officer Hernandez would be fined. (Id.) Officer Hernandez returned to his patrol car “to confirm her name through Central Dispatch.” (Id.) Plaintiff then “produced a homemade identification card.” (Id.) While Officer Hernandez was in his patrol car, New Mexico State Police Officer Vigueria stood with Plaintiff.[3] (Id.)

         Officer Hernandez wrote three citations for “no driver's license, no registration, and no insurance.” (Id.) Officer Hernandez asked Plaintiff to sign the citations stating that she acknowledged receipt of the citations “and without admitting guilt agree[d] to appear” in Silver City Magistrate Court on March 18, 2019. (Compl. Ex. B.) Officer Hernandez stated that instead of signing her name,

[Plaintiff] wrote where she was supposed to sign “UCC1-308”.[4] [Plaintiff] signed under it and I told her to only sign the citation and not write anything more. On the second citation [Plaintiff] wrote in “UCC1-308” again. I took the pen away from her and told her not to do (sic) write that anymore. On the third citation [Plaintiff] started to write “UCC” and at that time I told [Plaintiff] to place her hands behind her back. [Plaintiff] would not bring her left hand behind her back and it was pulled from in front of her to the back. I placed handcuffs on [Plaintiff] behind her back (double locked). I placed [Plaintiff] in my patrol car and transported her to the Silver City Police Department for paperwork. [Plaintiff] was complaining of the handcuffs bruising her. When [Plaintiff] exited the car I did observe that her right hand had blood from where the handcuff was and a bruise. The handcuffs were not overtightened on [Plaintiff] but were loosened a little bit more due to the injury she sustained.…[Plaintiff] was transported to the Gila Regional Medical Center for a medical clearance and then to the Grant County Detention Center for booking.


         Plaintiff admits that she surrendered her driver's license to the state on March 14, 2017. (Compl. Ex. E (DRIVER LICENSE SURRENDER FORM (Mar. 14, 2017).) Plaintiff alleges she is not a United States citizen and is not a resident of the State of New Mexico. (Id. at p. 3.) However, in her court filings, Plaintiff indicates an address in Mimbres, New Mexico. (Id. at 1.) Plaintiff alleges she is a citizen of her own foreign state and is a “Diplomat of the Bradford Republic[.]” (Id. at p. 4.) Plaintiff alleges that Officer Hernandez should have noticed her “license plates” which read “Bradford Republic Diplomat” as authentic. (Id.) Plaintiff claims that she is immune from state law under the “Foreign Sovereign Immunity Act.” (Id.) Plaintiff asserts that as a result, Officer Hernandez wrongfully arrested and prosecuted her for violations of state law. (Id.)

         On February 19, 2019, Officer Hernandez filed a Criminal Complaint (Mot. Ex. A) charging Plaintiff with four counts: (1) intentionally resisting or abusing a peace officer in the lawful performance of his duties in violation of NMSA 1978 § 30-22-1 (misdemeanor); (2) driving without a valid driver's license in violation of NMSA 1978 § 66-5-16 (misdemeanor traffic offense); (3) failing to produce proof of vehicle insurance in violation of NMSA 1978 § 66-5-229C (misdemeanor traffic offense); and (4) failing to produce evidence of current registration of her vehicle in violation of NMSA 1978 § 30-3-13 (misdemeanor). (Mot. Ex. A.)

         On March 13, 2019, Special Prosecutor James H. Reynolds filed a notice of Nolle Prosequi dismissing the charges without prejudice and stating that “it would not be in the best interests of justice to pursue this matter: to wit, Defendant has been declared not competent to stand trial three times in 2018.” (Mot. Ex. C.) See generally, State of New Mexico v. Holmes, No. M-19-MR-201900114 (Magistrate Court, Silver City, New Mexico).


         This is not Plaintiff's first civil case involving a traffic stop and arrest. In Holmes v. Grant County Sheriff Dep't., 347 F.Supp.3d 815 (D. N.M. 2018), Plaintiff claimed that a Grant County Sheriff Deputy “violated New Mexico criminal statutes and her ‘Natural Rights' and ‘Common Law Rights' when they cited and arrested Holmes and towed her automobile, allegedly in response to discovering Holmes driving her vehicle without a driver's license, automobile registration, or car insurance.” Id. at 819.[5] Plaintiff alleged that she was a resident of a foreign state, because her “property and land are on a foreign domicile, within New Mexico, but outside New Mexico and the Federal Zone.” Id. Plaintiff also alleged that as a diplomat of the Bradford Republic, she “was immune from the enforcement of New Mexico laws pursuant to the Foreign States Immunities Act, 28 U.S.C. §§ 1330, 1332, 1391(f), 1441(d), 1602-11 (‘FSIA'), and that New Mexico state agents are prohibited from entering her property.” Id. The Honorable James O. Browning granted the defendants' motion to dismiss because “none of the statutes on which Holmes expressly or impliedly relies for her claims affords a private right of action.” Id. at 819-20. As Judge Browning noted, Plaintiff emphatically stated that she was not pursuing claims under 42 U.S.C. § 1983. However, Judge Browning addressed a possible § 1983 claim in a discussion concerning Plaintiff's request to amend her complaint:

For example, if Holmes were to amend her Complaint to assert § 1983 claims stemming from the same facts already alleged, the individual Defendants would be entitled to qualified immunity because of Holmes' failure to point to any case law clearly establishing that it violates the Constitution of the United States of America or any federal statute to detain a person driving an unregistered vehicle without a driver's license.

Id. at 826 (citing Perez v. Cambell, 402 U.S. 637, 652-54 ((1971) (stating “[t]he use of public highways by motor vehicles, with its consequent dangers, renders the reasonableness and necessity of regulation apparent. The universal practice is to register ownership of automobiles and to license their drivers.”)). The Tenth Circuit recently affirmed Judge Browning's decision. Holmes v. Grant County Sheriff's Dep't, 772 Fed.Appx. 679, 680 (10th Cir. May 21, 2019) (unpublished).

         A. Plaintiff's § 1983 Claim Under the Fifth Amendment

         Plaintiff claims Officer Hernandez violated Plaintiff's Fifth Amendment Rights by failing to inform Plaintiff of her Miranda rights during her arrest. The law in this circuit is clear, however, that the only remedy available for a Miranda violation is the suppression of any incriminating statements. Lewis v. Nelson, 113 F.3d 1246 (10th Cir. 1997) (citing Bennet v. Passic, 545 F.2d 1260, 1263 (10th Cir.1976)). As explained in Bennet,

The Constitution and laws of the United States do not guarantee Bennett the right to Miranda warnings. They only guarantee him the right to be free from self-incrimination. The Miranda decision does not even suggest that police officers who fail to advise an arrested person of his rights are subject to civil liability; it requires, at most, only that any confession made in the absence of such advise be excluded from evidence. No. rational argument can be made in support of the notion that the failure to give Miranda warnings subjects a police officer to liability under the Civil Rights Act.

Bennet, 545 F.2d at 1263. Therefore, the Court will dismiss this claim because, as a matter of law, failure to give Miranda warnings does not support a cause of action under § 1983.

         B. Plaintiff's Claim for Unlawful Arrest

         Plaintiff asserts that Officer Hernandez violated her civil rights when he falsely arrested her in violation of the Fourth Amendment.[6] As stated in McGarry v. Bd. of Cty. Commissioners for Cty. of Lincoln, 294 F.Supp.3d 1170 (D. N.M. 2018),

To maintain a false arrest or false imprisonment claim under § 1983, [the plaintiff] must demonstrate the elements of a common law claim and show that [his] fourth Amendment right to be free from unreasonable search and seizure has been violated. Although constitutional torts are not based on any specific state's tort law, courts generally use the common law of torts as a starting point for determining the contours of constitutional violations under § 1983.…Under New Mexico law, false imprisonment is intentionally confining or restraining another person without his consent and with knowledge that he has no lawful ...

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