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Ortiz v. Mora

United States District Court, D. New Mexico

December 10, 2019

SHAWNTAY ORTIZ, individually and on behalf of L.J., her minor son, and as the Personal Representative of MARTIN JIM, deceased, Plaintiff,
v.
JOSHUA MORA, in his individual capacity, BOARD OF COUNTY COMMISSIONERS OF BERNALILLO COUNTY, and MANUEL GONZALES, III, Bernalillo County Sheriff, Defendants.

          MEMORANDUM OPINION AND ORDER

         In the aftermath of a car pursuit, Bernalillo County Deputy Sheriff Joshua Mora opened fire on the fleeing vehicle, killing both its driver, Isaac Padilla, and passenger, Martin Jim. Jim's surviving partner and minor child brought this 42 U.S.C. § 1983 action, contending that Mora unreasonably seized Jim by firing his gun when the chase had ended, the vehicle was stationary against a curb, damaged, and barricaded by two police cars. According to Mora, however, he shot at the vehicle after Padilla revved the engine, threatening the life of a nearby police officer.

         After considering Defendants' motion for summary judgment on Plaintiff's § 1983 excessive force claim (ECF No. 25), the Court holds that a reasonable jury could conclude that Deputy Mora acted unreasonably. However, Mora violated no clearly established law and therefore is entitled to qualified immunity. The Court also holds that Plaintiff's Fed.R.Civ.P. 56(d) motion for additional discovery (ECF No. 37) is granted and the Defendants' second filed summary judgment motion (ECF No. 26) is denied without prejudice.

         I. FACTUAL BACKGROUND

         Most of the events of this case were recorded by a thermal imaging infrared camera attached to a police helicopter, which is entirely soundless and in many instances blurry. Other events were recorded from police officers' belt tapes and a traffic camera. Consequently, the Court describes the facts “in the light depicted by the videotape, ” Scott v. Harris, 550 U.S. 372, 381 (2007), while recognizing that any gaps or uncertainties left by the video are construed in the light most favorable to Plaintiff as the summary judgment nonmovant. See Carabajal v. City of Cheyenne, Wyoming, 847 F.3d 1203, 1207 (10th Cir. 2017) (where video evidence does not capture all that occurred the court “continues to view the evidence in the light most favorable to [the plaintiff].”) Facts are also provided by deposition testimony, affidavits, post-shooting reports, and other evidence presented.[1]

         On November 17, 2017 around 3:45 a.m., police dispatch reported that a police helicopter using thermal imaging was tracking a stolen white Dodge pickup truck in southeast Albuquerque. Defs.' Undisputed Fact (UF) ¶¶ 2-4, ECF No. 25. The truck exited Interstate 40 and pulled into a gas station near an intersection off the interstate. Id. ¶ 5. Albuquerque Police Officer Pete Tartaglia pulled into the gas station and switched on his emergency lights. UF ¶ 6.

         As Officer Tartaglia exited his police car, the Dodge drove off. Id. ¶ 7. The Dodge then drove to a nearby neighborhood, hitting a traffic cone and driving in the wrong lane of travel as it did so. UF ¶ 8. As the vehicle stopped on a neighborhood street, an individual exited from the driver's side, and then the vehicle fled once more. Id. ¶¶ 8-9; Cordova Aff. ¶ 4, ECF No. 25-4. Police promptly apprehended the individual, and Deputy Mora heard over dispatch that the person had a gun. UF ¶ 10.

         For the next seven minutes, from about 4:00 to 4:07 a.m., the Dodge wound its way through city streets, heading towards Albuquerque's westside. Id. ¶¶ 11-14. As it did so, the vehicle passed through at least 18 major intersections with traffic lights without stopping.[2] Id. ¶¶ 11, 13-14. Bernalillo County Sheriff Deputy Sergio Cordova had taken position near the intersection of Montaño Road and Fourth Street, anticipating the Dodge's approach. Cordova Aff. ¶ 7. As the truck turned onto Montaño, Deputy Cordova covertly followed it, watching the Dodge flicker its headlights on and off and speed past another car. Id. ¶ 17; UF ¶ 17. As the Dodge continued its westbound travel on Montaño, it ran a red-light and traveled with its headlights off. Id. ¶ 19.

         As Deputy Cordova maintained his covert pursuit of the Dodge onto Unser Boulevard, other officers set up tire spikes at other locations. Id. ¶ 22. At about 4:14 a.m., the Dodge approached, but avoided, one set of spike strips. Id. ¶ 23. Hearing this, Deputy Mora attempted to set up a spike strip near the intersection of Unser and Ladera Drive. Id. ¶ 24; Defs.' Ex. A, ECF No. 29-1. But as he was unwinding the strip, the Dodge “barrel[led] towards [him]” from his left and he and could hear the “roar of the engine, the whine, the RPMs [] continued and the sound to get higher and higher, ” so he “thr[ew]” the strip, retreated, and watched as the Dodge maneuvered to avoid the spikes. Id. The police helicopter continued tracking the Dodge's course, broadcasting to officers that the vehicle was speeding through a neighborhood in the wrong lane of traffic and with its headlights off. UFs ¶¶ 29-30.

         Deputy Mora watched the Dodge run a stop sign as it turned onto Ladera and head toward Ouray Road, where officers had set up another set of tire spikes. Id. ¶¶ 31, 33. Although Deputy Mora heard over the radio that the Dodge had hit the spikes, the truck continued its course, speeding past another motorist while driving in the middle of Ouray Road and kicking up debris. Id. ¶¶ 33-35.

         In their separate police cars with the sirens on, Deputies Cordova and Chavez gave chase, pursuing the Dodge as it turned onto a frontage road, drove over a median and through several large plastic pylons, sparks emitting from one of its wheels. Chavez Aff. ¶ 36, ECF No. 25-5; UFs ¶¶ 36-38. The Dodge then drove south into the northbound lanes of traffic on Coors with its headlights off, forcing at least one other motorist to swerve. Id. ¶¶ 39-41. At this point, Deputy Mora believed that the driver of the Dodge had committed the felony of aggravated assault with a deadly weapon. Id. ¶ 42.

         Deputy Chavez then attempted a Pursuit Intervention Technique (PIT), a ramming maneuver to make the driver abruptly “spin out” so the driver loses control and stops. Chavez Aff. ¶¶ 45-47. The deputy's PIT was unsuccessful, though, and the Dodge continued its pursuit in the wrong lanes on Coors. Id. ¶ 47. Deputy Chavez, who was himself in the wrong lanes of travel at this point as he pursued the Dodge, noticed oncoming motorist vehicles, so he backed-off to give motorists room to safely maneuver their vehicles. Id. ¶ 49. The Dodge fled into a residential area and Deputy Chavez continued his chase, ramming the Dodge in another PIT on a residential street, but Chavez ended up disabling his own police car in the process, bringing his pursuit to a halt. Id. ¶¶ 51-55.

         Deputy Cordova continued to pursue the Dodge though. UF ¶ 49. The fleeing vehicle ran a stop sign, nearly colliding head-on with another motorist headed east on Hanover Road. Id. ¶ 51. As the Dodge attempted to exit the residential area and get back onto Coors, Deputy Cordova attempted a third PIT. Id. ¶ 52. The Dodge momentarily fishtailed, but Padilla regained control, drove north in the southbound lanes on Coors, and then drove over the median to gain passage into the southbound lanes. Id. ¶ 53.

         Seconds later, Deputy Cordova successfully rammed the Dodge in a fourth PIT near the intersection of Coors and Glenrio. Id. ¶ 54. The Dodge spun-out and came to a standstill in the northwest corner of the intersection, its front wheels abutted against a curb. Id. ¶ 55; Pl.'s Ex. 1B, ECF No. 35-1. The area where the Dodge stood still appears to be a large, vacant tract. Helicopter footage does not show the presence of passing pedestrians or members of the public. A post-shooting photograph of the truck shows the front driver's wheel obliterated, the tire rim exposed. Pl.'s Ex. 1C, ECF No. 35-1.

         After the Dodge came to a standstill, Sergeant Gaitan came on the scene in his police sedan. Id. ¶ 58. Gaitan pulled in front of the Dodge at an angle and “up against the bumper of the [Dodge], ” to “prevent the [Dodge] from driving forward.” Pl.'s Additional Undisputed Material Facts ¶¶ A, B (AUF). Cordova, too, blocked the Dodge's path with his police SUV, also positioning his SUV at an angle and near the Dodge's front bumper. Id. ¶ C; Defs.' UF ¶¶ 58, 60. This arrangement blocked the Dodge behind the police vehicles so that the Dodge could not easily flee, although nothing stopped the Dodge's backward travel.

         As for Deputy Mora, he parked his car at a distance away from the Dodge. Defs.' UF ¶¶ 56-57. He then approached the Dodge on foot, pointed his handgun-mounted light at the driver and ordered Padilla to put his hands up because Padilla was “reaching down” toward the center console. UF ¶ 59; ECF No. 29-1 at 11. Padilla did not obey, although it is unknown whether Padilla heard the commands, and it is undisputed that no gun was found in the vehicle. Id. at 11- 12; Pl.'s Resp. Br. at 6 n.2. Deputy Cordova had exited his police SUV by this point, drew his firearm, and used his open driver's door as cover. Pl.'s AUF ¶ E. Cordova was also commanding Padilla to put his hands up, and he also saw Padilla reach for something on the truck's floor. Cordova Aff. ¶¶ 64-66.

         As Mora stood roughly adjacent to the driver's side of the Dodge, he heard the Dodge's engine revving, leading Mora to believe that Padilla was hitting the accelerator to flee. Id. ¶ 66. Sergeant Gaitan stood behind the barrier formed by the police cars angled against the Dodge's front. In a post-shooting interview, Mora described what occurred next as follows:

Deputy Gaitan was out of his unit and I could see Deputy Gaitan in my peripheral vision to the left and knew that he was directly in the path of the truck, uh, it was at that same time, as all this was unfolding, that the driver punched the gas as far as he could and it was just a constant whine, it was just [] he was actively trying to put the truck into gear. The gear shift was up here at the right side of the steering wheel, he was moving it up and down. Uh, I was, I was scared that if he got that vehicle into gear Deputy Gaitan would be ran [sic] over.

ECF No. 29-1. Mora shot seven rounds at the vehicle, killing both Padilla and Mr. Jim, who was a backseat passenger. UF ¶¶ 72, 75. Mora did not know of Jim's presence. Id. ¶ 76. Almost immediately, the Dodge reversed away from the officers in an uncontrolled loop as Padilla's lifeless foot remained on the accelerator before finally came to a stop. Pl.'s Resp. Br. ¶ 5. The time it took for Mora to exit his police vehicle, run towards the site, yell demands, and finishing firing his weapons occurred within about 18 seconds.

         Deputy Cordova said that he heard the sound of the Dodge's revving engine at the time Mora fired the shots. Defs.' UF ¶ 73. In an affidavit, he said that “if the revving sound coming from the truck turned into forward movement, either myself or Sgt. Gaitan could have been seriously injured or killed by the truck.” Cordova Aff. ¶ 69. Similarly, Gaitan said in an affidavit that as Padilla revved the engine he was located “directly in the truck's path of travel behind my unit, which sat significantly lower than the stolen truck” and that he believed Padilla “was going to ram through my unit and through me, ” because of Padilla's prior conduct and revving his engine. Gaitan Aff., ECF No. 25-7 ¶¶ 35-56. However, when Cordova was asked why he did not fire his weapon at the Dodge, Cordova answered that he “did not have a threat that [he] needed to fire [his] firearm.” Pl.'s AUF ¶ F. Likewise, when Sergeant Gaitan the same question he answered that he “was either slow to react or acting on training and experience.” Id. ¶ G.

         Under Plaintiff's version of the story, Gaitan was not directly in the truck's path of travel, as Mora claims. Gaitan could not have been struck by the Dodge, Plaintiff says, because the two police cars behind which Gaitan stood made the Dodge's forward travel impossible. Plaintiff does not dispute that Padilla revved the Dodge's engine at the time Mora fired the fatal shots. However, Plaintiff contends that a reasonable jury could conclude that Mora should have known that the Dodge posed no risk when it was stationary behind the police cars, its front wheels against a curb with one of its tires obliterated, and no officers were behind the truck, its only escape route. Plaintiff further contends that a jury could conclude that Mora overreacted given Deputy Cordova's statement that he did not perceive a need to shoot and Sergeant Gaitan's statement - despite being the most imperiled officer - that he did not shoot because either he was slow to react or acting on training and experience.

         II. PROCEDURAL HISTORY

         On August 8, 2018, Plaintiff filed a five-count amended complaint in federal court against Deputy Mora, the Board of County Commissioners of Bernalillo County, and Bernalillo County Sheriff Manuel Gonzales, III, alleging claims for relief under federal and state-law. Plaintiff brought a § 1983 excessive force claim under the Fourth Amendment against Deputy Mora (Count I); a municipal liability or “Monell[3] claim” against the County (Count II); a supervisory liability claim against Sheriff Gonzales (Count III); and state-law loss-of-consortium claims asserted by Mr. Jim's partner, Shawntay Ortiz (Count IV), and the couple's minor son, L.J. (Count V).

         With only limited discovery conducted, Defendants filed two motions for summary judgment: the current motion targeting Plaintiff's § 1983 excessive force claim (Count I), and one targeting Plaintiff's § 1983-claims against the County and Sheriff on theories of municipal and supervisory liability (Counts II and III). Plaintiff filed no response to the latter motion. Instead, Plaintiff moved under Fed.R.Civ.P. 56(d), asking the Court to deny or defer ruling on that motion and requested time for additional discovery to present facts to oppose the summary judgment motion.

         Plaintiff tells the Court that she took depositions of three current and former BCSO officers in a related state-court case. Some testimony from at least one of these officers paints a picture of Deputy Mora as violent and lacking impulse control, Plaintiff says. For instance, Leonard Armijo, Deputy Mora's police academy instructor, testified that Mora was a failure in the police academy, and Plaintiff suggests that he nonetheless gained his position through family nepotism because his father, Rudy Mora, is the undersheriff of BCSO. Mora was initially denied entry into the police academy the first time he applied because he failed a polygraph. Once he finally did gain admission, Plaintiff says he exhibited aggressive behavior as a cadet. Armijo testified that Mora failed a nonuse of force prisoner transport role-playing exercise because he put the ...


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