United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING PLANTIFF
PENMAN'S MOTION FOR SUMMARY JUDGMENT
MATTER comes before the Court upon Plaintiff Kentoine
Penman's Motion for Summary Judgment, filed May 9, 2019
(Doc. 32). Having reviewed the parties' pleadings and the
applicable law, the Court finds that Plaintiff's motion
is not well-taken and, therefore, is denied.
Plaintiffs in this case claim that they were deprived of
their Fourth Amendment rights to be free of unreasonable
seizures following their arrests by Defendants who are Hobbs
Police Department officers. Plaintiff Wright contends that
Officer Kevin Martinez was acting outside his lawful
authority when he arrested him for refusing to provide
identification and because he was verbally objecting to
police activity. Plaintiff Penman claims that Officer Jaimes
violated his constitutional rights by unlawfully detaining
him. Both Plaintiffs have filed motions for summary judgment.
The Court recently denied Plaintiff Wright, Sr.'s motion,
see Doc. 66 (Mem. Opin. And Order), and now addresses Mr.
Penman's motion for summary judgment.
Complaint alleges that Mr. Penman was detained and that a
“records check” was done. The Joint Status Report
(Doc. 22) includes more factual details which the Court sets
out here as an overview of the parties' positions, which
evening of June 28, 2018, both Plaintiffs were standing in a
roadway preparing for the Wright family reunion at that
location. Hobbs Police Department (“HPD”) Officer
Juan Jaimes was conducting a nearby traffic stop and noticed
Mr. Penman and De' Aunte Meridyth standing in the roadway
near a parked car on a residential street. Officer Jaimes
decided to detain the two under the New Mexico state statute
that makes it unlawful for a pedestrian “to walk along
or upon an adjacent roadway” where sidewalks are
provided. NMSA 1978, §66-7-339 (“Pedestrian on
Roadway” statute). Officer Jaimes approached Mr. Penman
and Mr. Meridyth in his patrol car with his emergency lights
engaged. They began to walk away, Officer Jaimes called them
back and Mr. Penman complied. Officer Jaimes asked Mr. Penman
to produce identification, which he did.
Officer Jaimes was conducting a records check on Mr. Penman,
Officers Gastelum and Martinez arrived on the scene and tried
to get identification from Mr. Meridyth. Mr. Meridyth walked
behind Plaintiff Wright who was standing on a sidewalk. Mr.
Wright repeatedly asked the officers why they were there. The
officers told Mr. Wright that he was “interjecting
himself” into their investigation and asked him to
produce identification. Mr. Wright refused and explained that
he had done nothing wrong. Officers Martinez and Gastelum
informed Mr. Wright that he was being placed under arrest for
Concealing Identity. Officer Gastelum conducted a leg sweep
of Mr. Wright, causing him to go to the ground. Officer
Martinez used his body weight to keep Mr. Wright pinned to
the ground and Officer Gastelum handcuffed him. Mr. Wright
was taken to the patrol unit, transported to Hobbs City Jail
and charged with Concealing Identity and Resisting, Evading
and Obstructing an officer.
version is more detailed. Defendants claim that while Officer
Jaimes was conducting a records check of Mr. Penman, Mr.
Wright approached Officer Martinez and became increasingly
vocal about the officers' presence. He had his hands in
his pockets at the time and when Officer asked him to remove
his hands from his pockets and leave the scene, Mr. Wright
refused and began inciting the crowd against the officers.
When Mr. Wright refused to leave the scene, refused to
provide identifying information and then resisted arrest,
Officer Gastelum performed a leg sweep. Mr. Wright continued
to struggle and Officer Jaimes came over to assist the other
two officers in arresting Mr. Wright after obtaining Mr.
Penman's information. Officer Jaimes pulled out his Taser
and told Mr. Wright to place his hand behind his back. As the
officers were attempting to arrest Mr. Wright, the crowd on
the sidewalk began to move closer to the officers. More
vehicles arrived and the crowd grew to about forty people.
Doc. 22 at 7-8.
claim that Mr. Wright continued to yell and escalate the
situation. The crowd yelled at Officers Gastelum and Martinez
as they attempted to place handcuffs on Wright. Mr. Penman
also approached the officers, standing inches away from
Officer Martinez' face and trying to record the incident.
When Officer Jaimes instructed him to back away repeatedly,
Mr. Penman refused. Officer Martinez then informed Mr. Penman
that he was under arrest for repeatedly refusing to step
back. Mr. Penman shoved Officer Martinez and ran off. Officer
Martinez pursued Mr. Penman, lunged toward him, picked him up
from the ground and forced him onto the ground. Officer
Jaimes approached Officer Martinez and told Mr. Penman to
place his hands behind his back, but Penman refused. By this
time, the crowd had closed in again and was about three feet
away from the officers. Officer Jaimes placed his knee on
Penman's upper back and pointed the Taser at the crowd of
people. The crowd retreated. Officer Jaimes told Mr. Penman
to place his hands behind his back or he would be tased, and
Penman complied. Mr. Penman was arrested and escorted to
Hobbs City Jail.
arresting Mr. Penman, Officer Jaimes found a small plastic
bag that contained a white powdery substance near the ground
where Mr. Penman was detained. Officer Jaimes also searched
the back seat area of his patrol unit where Mr. Penman had
been sitting. He found two small plastic bags, one containing
a green leafy substance and the other a white crystalline
substance. Mr. Penman told Officer Jaimes he had just
finished smoking weed, that the bag containing the green
leafy substance was his and that the bag with the white
powdery substance was cocaine and also belonged to him.
However, Mr. Penman told Officer Jaimes that the small bag
containing a white crystalline substance was not his. Tests
conducted with a narcotics reagent kit at the HPD revealed
that the white powdery substance was cocaine, the white
crystalline substance was methamphetamine and that the green
leafy substance was marijuana.
28, 2018, Mr. Penman was arrested for the following crimes:
1) Pedestrians in the Roadway, Resisting; 2) Obstructing, or
Evading an Officer; 3) Possession of Cocaine,
Methamphetamine, and Marijuana; and 4) Assault and Battery on
a Peace Officer. Mr. Wright was arrested for the following
crimes: 1) Concealing Identity; and 2) Resisting, Evading, or
Obstructing an Officer.
of the Complaint alleges Wrongful Arrest and detention of Mr.
Wright, and Count II alleges Unlawful Detention and seizure
of Mr. Penman, both in violation of their Fourth Amendment
Plaintiffs have filed summary judgment motions, with the
individual officers relying on a defense of qualified
immunity, which shields government officials from liability
for civil damages “insofar as 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);
Romero v. Story, 672 F.3d 880 (10th Cir.
2012). “In resolving questions of qualified
immunity at summary judgment, courts engage in a two-pronged
inquiry.” Tolan v. Cotton, 134 S.Ct. 1861,
1865(2014). The first prong asks whether the facts, taken in
the light most favorable to the party asserting the
injury-here the Defendant officers-show that the
officer's conduct violated a federal right. The second
asks whether the right in question was “clearly
established” at the time of the violation. Id.
at 1865-66 (citations and quotation marks omitted). The Court
may consider these two inquiries in any order. See
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
defendant asserts a defense of qualified immunity, the burden
shifts to the plaintiff to show that the law and facts at
issue establish that qualified immunity does not apply.
Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1026
(10th Cir. 1994). The plaintiff must come forward with
sufficient evidence to show that the defendant violated a
constitutional or statutory right, and that the right was
clearly established at the time of the conduct. See
McBeth v. Himes, 598 F.3d 708, 716 (10th Cir. 2010).
The contours of the right must be sufficiently clear that a
reasonable official would understand what he is doing
violates that right.” Thomas v. Kaven, 765
F.3d 1183, 1194 (10th Cir. 2014).
case, the relevant facts are not in dispute, but rather the
legal significance of the facts. See Rummel v. Lexington
Ins. Co.,123 N.M. 752, 758 (1997) (summary judgment is
appropriate where no facts ...