United States District Court, D. New Mexico
SHAWNTAY ORTIZ, individually and on behalf of L.J., her minor son, and as the Personal Representative of MARTIN JIM, deceased, Plaintiff,
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
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.
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.
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.
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 ¶
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 ¶
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. 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.
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.
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.
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.
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. ¶¶
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.
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.
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
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.
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.
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.
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.
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 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).
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.
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 ...