United States District Court, D. New Mexico
AL-RASHAAD R. CRAFT, Plaintiff,
CHAD WRIGHT, in his official and individual capacities; and AHMAD WHITE, in his official and individual capacities, Defendants,
MEMORANDUM OPINION AND ORDER ON DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT
D. FREUDENTHAL, UNITED STATES DISTRICT JUDGE
a Fourth and First Amendment case regarding the arrest,
detention and prosecution of Plaintiff Al-Rashaad R. Craft
for alleged felony battery and disorderly conduct occurring
in an incident when Mrs. Susan Stone struck him while he was
recording his preaching in a public square in Hobbs, New
Mexico. Plaintiff does not, however, sue Mrs. Stone in this
case. Rather, Plaintiff sues the Hobbs Police Department
officer -Detective Ahmad White - who investigated the
incident and wrote a sworn Criminal Complaint to obtain a
warrant for Plaintiffs arrest. Plaintiff sues White in his
individual and official capacities. Plaintiff also sues
another officer of the Hobbs Police Department, Captain Chad
Wright, in his individual and official capacities for
allegedly causing White to "find a reason" to
arrest Plaintiff. Defendants move for summary judgment based
on qualified immunity. CM/ECF Doc. 90. Plaintiff opposes,
arguing summary judgment is inappropriate due to issues of
material fact. Doc. 101. For the reasons that follow, the
Court concludes Wright is entitled to qualified immunity on
the individual capacity claims against him due to a lack of
evidence tying him to Plaintiffs arrest, detention or
prosecution. White is not entitled to summary judgment on
qualified immunity for the Fourth Amendment and First
Amendment claims. The official capacity claims against both
White and Wright are dismissed based on Plaintiffs concession
at the hearing on this motion.
following facts appear undisputed except where
noted. Plaintiff Al-Rashaad R. Craft is of
African-American descent and Christian in religious belief.
His father and grandfather were Southern Baptist preachers,
and his father instilled in him the importance of ministering
the word of God to all people. He believes projecting the
word of God to be his obligation as a Christian.
Plaintiff's Public Preaching and the Underlying Incident
with Mrs. Stone
parts of 2014 and 2015, Plaintiff lived in Hobbs, New Mexico
while working for the U.S. Department of Energy. Doc. 38
¶¶ 1, 2, 30. On Saturday, April 18, 2015, Plaintiff
went to the Shipp Street Plaza in Hobbs, New Mexico, set up
his smartphone on a tripod, and began to record himself
preaching. Defendants' Ex. 1, Craft Deposition, p.
65:13-20; Plaintiffs Ex. 1 ("Craft's
Recording"). Shipp Street Plaza is a public forum or
public square. Doc. 101, pp. 1-2, ¶ 1.
had been in Hobbs for approximately eight months, during
which time he preached in public almost "every weekend,
or every other weekend." Craft Deposition, p. 33:12-24.
Plaintiff recorded his preaching and then uploaded the
recordings to his YouTube channel, "Hawashinawa Ma
Ri." Craft Deposition, pp. 30:9-12; 31:4-20.
Stone's husband owned a store down the block from Shipp
Street Plaza. While Plaintiff was preaching on this
particular Saturday, Mrs. Stone approached him.
Defendants' Ex. 2 (Plaintiffs April 18, 2015 audiovideo
recording, hereafter "Plaintiffs Video"), starting
at 8:07; Plaintiffs Ex. 1, Craft Recording. Neither party
prepared an official transcript of Plaintiff s
Video. The Court has watched and listened to
Plaintiffs Video, and notes it shows the following facts.
While Plaintiff was preaching, Mrs. Stone approached
Plaintiff from off-screen and started speaking loudly as he
spoke. When Plaintiff attempted to continue preaching and
reading out loud from the Bible he was holding open in his
hands, Mrs. Stone repeatedly yelled over Plaintiffs voice, in
somewhat slurred speech, "ye goddamn nut,"
"you goddamn nut," and turned Plaintiffs words
against him ("you will be destroyed"), etc., while
waving something that looks like a lighter-holder between him
and his camera, and moving around him. Mrs. Stone asserted
her right to be on public property too. At about one minute
and twelve seconds of Mrs. Stone's intervention, the
camera captures from Plaintiffs left-forward, Mrs.
Stone's hand bringing her lighter-case up under the Bible
and pushing it up and back into Plaintiffs face while he was
reading out loud from it.
Plaintiff then turned and took a step off-camera to his
forward-left, the direction from which Mrs. Stone's hand
had just come. Simultaneous with Plaintiffs movement, he
yelled "Watch out! Don't you ever touch me
again!" Plaintiff immediately stepped back to where he
had been, in front of his camera, looking still to his
forward-left offscreen. Plaintiff s Ex. 1, 1:12-17. Later in
the recording, Plaintiff tells a police officer that Mrs.
Stone pushed him and then he pushed her. A man who later
identified himself to police as Israel Loya-Lopez told police
that he helped Mrs. Stone to get up from the ground.
Approximately two seconds later, Mrs. Stone can be heard
saying she was "going to get her husband right
now." Id., 1:19-21. Plaintiff turned to his
right, seemed to point to onlooking bystanders in that
direction, and said, "And I'm glad everyone saw
that." Id., 1:22-26.
Meanwhile, a man later identified to be Mrs. Stone's
husband, Mark Stone, approached from off-screen, confronted
Plaintiff about knocking down Mrs. Stone, and although
keeping his hands in his pockets, physically and verbally
taunted Plaintiff to put his hands on him, also motioning to
someone off-camera. Mrs. Stone meanwhile circled closer to
Plaintiff in the background, yelling at him "How do you
think I fell down?" Id. 1:26 and following.
Plaintiff tells Mr. Stone to call the police and do what he
has to. Mr. Stone continued to approach closer, and Plaintiff
turned the camera to record Mr. and Mrs. Stone, referring to
them as demons. In the process, this showed a third man was
standing near to Mr. Stone, watching Plaintiff. Plaintiff
removed his tunicand further responded to Mr. Stone, saying
to the effect any woman who puts her hands on him (like Mrs.
Stone did) would feel the pain of
In response to either Mr. Stone or Mr. Loya-Lopez stating
that you don't knock down a woman, Plaintiff said
"then keep your hands off me." Mr. Stone taunted
Plaintiff to knock him down. When Mr. Stone advanced to
within inches of his face, Plaintiff asked Mr. Stone to back
up, to which he said "No. Put your hand on me," and
did not move away, while Mrs. Stone continued to shake her
lighter-case at Plaintiff and yell at him. Finally, Plaintiff
put his tunic back on and turned back to his phone camera.
Mr. Stone moved close in and then said "You're a
piece of sh*t, you know that. Yeah, you're a piece of
sh*t." Plaintiffs Ex. 1, 3:30. At about 3:34, Mrs. Stone
in the background touched the back of her head and said
"my Ping head is hurting" and told Plaintiff he
should "look on your camera and see where I was touching
you," i.e., contending she had not touched
At that point, Plaintiff said Mrs. Stone was drunk and would
go to jail for public intoxication, to which Mrs. Stone
replied that Plaintiff would go to jail, "you mother
f*r." Plaintiff resumed reading from his Bible and
expounded on these events as examples of the problems with
the world he had been discussing before the incident.
say Plaintiff pushed Mrs. Stone with both hands "to the
ground." Doc. 90, p. 4 ¶ 7 (citing Plaintiffs
Video, 9:14 to 9:17). Plaintiff says he "pushed the
wom[a]n away, and she lost her balance and fell." Doc.
101, p. 3, ¶ 6.
Initial Hobbs Police Department Response
point, the Stones retreated a space away. Someone called the
Hobbs Police Department, and Officers Brandon Ellis and
Michael Thomas responded to the scene. Defendants' Ex. 3,
Incident Report by Brandon Ellis ("Incident
Report," p. 4; Deposition of Michael Thomas at pp.
14:7-10, 16:8-10). Officer Ellis took the lead and spoke to
Mrs. Stone first.
parties disagree regarding many details of what the witnesses
reported to Officer Ellis. Defendants rely largely on
Ellis's summary of the conversations in his incident
report and White's rendition of that summary in the
Criminal Complaint, along with White's summaries of his
own conversations with Loya-Lopez and the Stones. Plaintiff
instead relies primarily on the officers'
audiorecordings, particularly Ellis's Audiorecording.
Plaintiffs Ex. 2 ("Ellis's Audiorecording").
That recording reflects Officer Ellis interviewed Mr. and
Mrs. Stone together. A man's voice that sounds like Mr.
Stone's (from the Plaintiffs Video) answered Ellis
initially, saying "He's filming himself. He's
here every week." The same voice reported that he did
not see the whole interaction between Plaintiff and Mrs.
Stone, but a "close friend" did. The same voice
asserts Plaintiff was trying to "instigate" and
becoming more "belligerent" all the time.
Id., approximately 1:20. Later, the same male voice
can be heard asserting Plaintiff was "preaching down
with the white people." Id., approximately
claim Mrs. Stone told Ellis that she was waving her lighter
in front of Mr. Craft's camera and telling him she had
freedom of speech too when he pushed her with both hands to
the ground. Plaintiff asserts no injuries were reported at
the time, but in Ellis's Audiorecording Mrs. Stone
reported she had pain in her rear, back and head. Mrs. Stone
told Ellis she did not want an ambulance.
then interviewed Plaintiff where he was continuing to record
himself preaching. Plaintiffs Ex. A Pt. II (notice of
lodging, January 4, 2018) at approximately
4:00-8:00. Plaintiff told Ellis he had been preaching
or prophesying when Mrs. Stone approached him, waved her
lighter in front of his camera, and "talked smack"
to him; Plaintiff said he ignored Ms. Stone because she
wasn't touching him; but after about three minutes of
this, Mrs. Stone pushed him and he pushed her back.
Id. Ellis included this information in his incident
report, and White included it in his Criminal Complaint.
Ellis went back to speak again with the other witnesses,
Plaintiff stated loudly in their direction that the entire
incident was on video. Plaintiffs Ex. A Pt. II at 9:55-10:08.
Plaintiffs reference to his video is also audible in
Ellis returned to the Stones he asked for the witness whom
Mr. Stone mentioned earlier. He then spoke with Mr.
Loya-Lopez, apparently the person to whom Mr. Stone earlier
referred to as his close friend. Mr. Loya-Lopez reported
witnessing the incident. Ellis's Audiorecording at
approximately 7:10; Incident Report, p. 5; Warrant and
Criminal Complaint, p. 5. Mr. Loya-Lopez told Ellis that Mrs.
Stone walked over to Plaintiff and "started messing with
him [inaudible] he was preaching," waved her lighter in
front of Plaintiff s camera, and Plaintiff pushed her.
Loya-Lopez said that Mrs. Stone had never touched Plaintiff.
Ellis's Audiorecording; Incident Report, p. 5; Warrant
and Criminal Complaint, p. 5. Mr. Loya-Lopez compared the
force of the push to what he would use if a 300-pound man was
trying to give him problems. Ellis's Audiorecording at
did not attempt to seize, view, obtain, or otherwise access
any of Plaintiffs video recordings because he did not think
about it at the time. Defendants' Ex. 5, Deposition of
Brandon Ellis, 51:23-52:3.
Ellis and Thomas found no probable cause to make an arrest.
They concluded the incident involved a misdemeanor battery,
conduct for which they cannot arrest a person unless it
occurred in the officers' presence. Plaintiffs Ex. 4,
Deposition of Michael Thomas, pp. 23-25:5; Ellis's
Audiorecording at approximately 9:20-10:25. Ellis told both
parties that a report would be written up and that they could
contact the District Attorney if they wanted to pursue
charges. Plaintiff was undecided. Mrs. Stone wanted to pursue
charges, and Mr. Stone demanded the presence of a supervisor.
Plaintiffs Response, Doc. 101, p. 4, ¶ 12 (citing
Ellis's Audiorecording at 9:24).
Ellis called his office on his car radio to let them know
people might be calling because there were several people
upset that they were not arresting Plaintiff. Plaintiff
asserts Ellis spoke at this time to his supervisor (Sergeant
Timothy McEachern) and that McEachern advised Ellis they were
attempting to find a way to get Craft off the
street. Officer Ellis later testified in his
deposition that Sergeant McEachern told him that "Chad
Wright had said we needed to find a reason to arrest
him." Ellis Deposition, pp. 15:17-16:24.
watching Plaintiffs recording in his deposition, McEachern
testified that the individual who should have been arrested
was Mrs. Stone, not Craft. Plaintiffs Ex. 3, Deposition of
Timothy McEachern, pp. 41:20-42:8. McEachern further
testified that the altercation between Plaintiff and Mrs.
Stone would be considered a misdemeanor battery and therefore
no arrest should have been made, and there was no reason to
take or go into Craft's phone. Id., p. 44:5-15.
In the years Officer Ellis was with the Hobbs Police
Department, he had never seen an individual get arrested for
a misdemeanor battery that occurred outside of an
officer's presence. Ellis Deposition, pp. 23:25-24:3.
Detective White's Investigation
April 19, 2015, the day after the altercation, Officer
Ellis's supervisor, Walter Coburn, removed him from the
case and advised him he was to not contact any witnesses or
victims in the case. Ellis Deposition, p. 62:18-24. That same
day, Coburn assigned Defendant White to the case. Warrant and
Criminal Complaint, p. 5; Defendants' Ex. 6, Deposition
of Ahmaad White, pp. 25:11-26:3. White knew Officer Ellis had
responded to the call, but did not know until his deposition
that Officer Thomas had also been there and completed an
incident report. Id. at pp. 60:21-61:1.
April 19, White contacted Israel Loya-Lopez at his house and
interviewed him about the incident. Warrant and Criminal
Complaint, p. 6. Mr. Loya-Lopez reported that Plaintiff
pushed Mrs. Stone with the force that he would use to push a
300-pound man. Warrant and Criminal Complaint, p. 6;
Defendants' Ex. 7, Detective White's Audiorecording
of Interview of Israel Loya-Lopez.
then went to the home of Mr. and Mrs. Stone. Warrant and
Criminal Complaint, p. 6. Mrs. Stone told White that she
waved her lighter in front of Plaintiffs camera, he pushed
her, and she hit her head. White's Audiorecording
with the Stones. Warrant and Criminal Complaint, p. 7.
Mrs. Stone said she was still in pain. On White's leading
questions of whether she was incapacitated, unable to move
around, to perform her daily duties, or sit up without
assistance, Mrs. Stone agreed with all of those statements.
White's Audiorecording with the Stones. White took photos
of bruises on Mrs. Stone's right arm and a bump on the
back of her head. Defendants' Ex. 8 (photos).
only address for Plaintiff that Officer Ellis obtained was
the Houston address on Plaintiffs driver's license.
Incident Report, p. 1. As such, White did not know Plaintiffs
address in Hobbs prior to arresting him. However, Officer
Ellis did obtain a telephone number from Plaintiff.
Id. White did not try to contact Plaintiff before
arresting him. White Deposition, pp. 39:10-40:15.
Warrant Application, Arrest and Subsequent Prosecution
interviewing Mr. Loya-Lopez and the Stones, Defendant White
conferred with the District Attorney, who agreed that
Plaintiff should be charged with misdemeanor battery and
disorderly conduct. Criminal Complaint, p. 7.
days later, on April 23rd, Mr. Stone contacted Defendant
White to report that Mrs. Stone's pain was increasing,
she was acting verbally aggressive, she was confused and
experiencing mood swings. Criminal Complaint, p. 7. This
conversation is not in the record, other than White's
summary of it in the Criminal Complaint. According to
White's summary in the Criminal Complaint, Mr. Stone
reported that he took Mrs. Stone back to the hospital where a
doctor diagnosed Mrs. Stone as having sustained a severe
concussion. Id., p. 8. In his response brief,
Plaintiff did not dispute that Mr. Stone made these
assertions to White, so the Court takes it as undisputed that
Mr. Stone made them.
receiving this news, White contacted the DA again. They
agreed Plaintiff should be charged with felony aggravated
battery and disorderly conduct, a petty misdemeanor. Criminal
Complaint, p. 8. White then filed the Criminal Complaint
dated April 23, 2015. The state court order dismissing the
charges recites that the state filed charges on April 23,
2015. Defendants' Ex. 9, p. 1.
purposes other than the summary judgment motion, White
contends his affidavit accurately conveys what Mrs. Stone,
Mr. Stone and Mr. Loya-Lopez reported to either him or Ellis.
Plaintiff contends to the contrary, White fabricated numerous
assertions in his Criminal Complaint affidavit, particularly
in claiming Plaintiffs preaching included offensive comments
and language, and that White knowingly or recklessly did not
attempt to view the Plaintiffs Video before filing the
complaint requesting an arrest warrant. A state court
magistrate judge for Lea County, the Honorable Willie Henry,
approved the warrant application on April 23, 2015. Warrant
and Criminal Complaint generally, and p.1.
days later (Saturday, April 25, 2015), Plaintiff went to the
same location to preach again. Upon setting up his tripod, he
was immediately detained by White with several other Hobbs
police officers in the area as well. They transported
Plaintiff to the local city jail, where he was detained for
between four and five days, and he was later transferred to
the Lea County Detention Center where he apparently remained
for fourteen or fifteen days. Craft Deposition, pp.
198:6-200:7. He was charged with third-degree felony
aggravated battery and disorderly conduct (a petty
misdemeanor), initially required to post a cash bond of $11,
000, and asserts he spent 19 days in jail. Doc. 101, p. 6,
¶ 24. According to Plaintiff, this was the first time he
had ever been arrested or charged with a crime. Craft
Deposition, pp. 200:21 -201:1.
December 13, 2016, the state court dismissed the charges
against Plaintiff because the prosecution failed to comply
with New Mexico's speedy trial requirements.
Defendants' Ex. 9, State Court Order granting Craft's
motion to dismiss. The state court found:
This is a simple case in which a delay of longer than 12
months is presumptively prejudicial which triggers the
Barker v. Wingo [407 U.S. 514 (1972)] factors. The
State did not respond to Defendant's motion to dismiss.
The length of the delay from Defendant's arraignment to
his scheduled trial was 20 months, 14 months of which were
attributable to the State, 6 months to Defendant. (See
Defendant's Motion attributing delay which was not
contested by the State) The reasons for the delay weigh
moderately against the State. The delays were not deliberate,
but administrative or neutral. Defendant asserted his right
to speedy trial in May of 2015 and also when the State
requested two ... • continuances.
Id., ¶¶ 8-12 (paragraph breaks omitted).
Four months later, Plaintiff brought this action.
Summary Judgment Standards
Court shall grant a motion for 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). This standard
requires more than the "mere existence of some alleged
factual dispute between the parties." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
Rather, it requires "there be no genuine issue of
material fact." Id. A material fact is one that
"might affect the outcome of the suit under the
governing law." Id. at 248. "Summary
judgment is inappropriate where there is a genuine dispute
over a material fact, 'that is, if the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.'" Roberts v. Jackson Hole
Mountain Resort Corp., 884 F.3d 967, 972 (10th Cir.
2018) (quoting Anderson, 477 U.S. at 248).
motion for summary judgment, "'we examine the record
and all reasonable inferences that might be drawn from it in
the light most favorable to the non-moving party, without
making credibility determinations or weighing the
evidence.'" Roberts, 884 F.3d at 971, n. 3.
Initially, the moving party carries the burden of proving the
nonexistence of a genuine dispute of material fact. Am.
Mech'l Solutions, L.L.C. v. Northland Process
Piping, Inc., 184 F.Supp.3d 1030, 1052 (D.N.M.
2016). The moving party satisfies this burden by "either
(1) offering affirmative evidence that negates an essential
element of the nonmoving party's claim, or (2)
demonstrating that the nonmoving party's evidence is
insufficient to establish an essential element of the
nonmoving party's claim." Id.; see Fed. R.
Civ. P. 56(c)(1)(A)-(B). Once the burden is satisfied,
"the nonmoving party must support its contention that a
genuine dispute of material fact exists either by (1) citing
to particular materials in the record, or (2) showing that
the materials cited by the moving party do not establish the
absence of a genuine dispute." Tolman, 108
F.Supp.3d at 1162- 63 (citing Matsushita Elec. Indus, v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
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 was
appropriate where video evidence "quite clearly
contradicted" the plaintiffs version of the facts.
American Mechanical, 184 F.Supp.3d at 1055 (quoting
Scott, 550 U.S. at 378-81). "When opposing
parties tell two different stories, one of which is blatantly
contradicted by the record [such as a video recording], 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." Scott, 550 U.S.
Plaintiff's Individual Capacity Claims
immunity attaches when an official's conduct does not
violate clearly established statutory or constitutional
rights of which a reasonable person would have known."
City of Escondido v. Emmons, 139 S.Ct. 500, 503, 202
L.Ed.2d 455 (2019) (per curiam) (internal
quotation marks omitted). The U.S. Supreme Court "has
repeatedly told courts ... not to define clearly established
law at a high level of generality." Id.
The qualified immunity rule seeks a proper balance between
two competing interests. On one hand, damages suits may offer
the only realistic avenue for vindication of constitutional
guarantees. On the other hand, permitting damages suits
against government officials can entail substantial social
costs, including the risk that fear of personal monetary
liability and harassing litigation will unduly inhibit
officials in the discharge of their duties. As one means to
accommodate these two objectives, the Court has held that
Government officials are entitled to qualified immunity with
respect to discretionary functions performed in their