Trujillo v. City of Hobbs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

NATHANIEL TRUJILLO,

Plaintiff,

v. No. CV 17-53 JTM/CG

CITY OF HOBBS, et al.,

Defendants.

ORDER ADOPTING CHIEF MAGISTRATE JUDGE’S

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

THIS MATTER is before the Court on Chief Magistrate Judge Carmen E. Garza’s

Proposed Findings and Recommended Disposition (Doc. 81), Defendants’ Objections to

the same (Doc. 82), and Plaintiff’s Response to Defendants’ Objections (Doc. 84).

In the Proposed Findings, the Chief Magistrate Judge recommended that

Defendants’ Motion for Summary Judgment and Memorandum in Support (Doc. 35) be

denied. (Doc. 81 at 15). Defendants timely objected to the Proposed Fndings and Plaintiff

timely responded to Defendants’ objections. See Fed. R. Civ. P. 72(B)(2). Following a de

novo review of Defendants’ Motion for Summary Judgment, the Proposed Findings,

Defendants’ Objections, and Plaintiff’s Response, the Court will overrule the Objections,

adopt the Proposed Findings and Rcommendations, and deny Defendants’ Motion for

Summary Judgment.

1. Background

In the early morning of January 17, 2015, Officer Royal Hopper with the Hobbs

Police Department was dispatched to a bar in Hobbs, New Mexico. (Doc. 82 at 1); (Doc.

84 at 2). The parties dispute what happened after Officer Hopper arrived on the scene,

including what Officer Hopper announced before he fired his duty weapon at Plaintiff

Nathaniel Trujillo, whether Trujillo had his hands on the weapon and how far he stood

from the suspect brandishing the firearm, and whether Trujillo complied with Officer

Hopper’s verbal commands. (Doc. 82 at 6). It is undisputed, however, that Officer Hopper

arrived on the scene without deploying his patrol vehicle’s lights or sirens, approached

Trujillo and the suspect with the firearm without the use of a flashlight, uttered an

announcement, and fired his duty weapon “four or five” times, hitting Trujillo twice in

the upper thigh. (Doc. 82 at 5); (Doc. 84 at 2); (Doc. 67 at 16); (Doc. 1 at 6).

At this stage in litigation, Trujillo has four remaining claims arising from Officer

Hopper’s January 17, 2015, use of force: two claims under 42 U.S.C. § 1983 against Officer

Hopper and the City of Hobbs, and two claims under the New Mexico Tort Claims Act

(NMTCA) for battery against both Defendants. (Doc. 1 at 27-32). In their Motion for

Summary Judgment, Defendants argue Officer Hopper is entitled to qualified immunity

on both Trujillo’s claims for battery under the NMTCA and excessive force under Section

1983. (Doc. 35 at 13-18). In addition, Defendants contend that because no claim can be

established against Officer Hopper in his individual capacity, no liability can be imputed

to the City of Hobbs under either the NMTCA or Section 1983. Id. at 19.

In the Proposed Findings, the Chief Magistrate Judge recommended that

summary judgment be denied on both Trujillo’s Section 1983 and NMTCA claims

because several issues of material fact remain disputed. (Doc. 81 at 12, 14). In addition,

the Chief Magistrate Judge recommended that because issues of fact remain as to the

reasonableness of Officer Hopper’s conduct, the derivative-liability claims against the

City of Hobbs should remain viable. Id. at 15. The Chief Magistrate Judge therefore

recommended that Defendants’ Motion for Summary Judgment be denied on the merits.

Id. at 16.

Defendants have objected to the Chief Magistrate Judge’s Proposed Findings on

two grounds. First, Defendants contend the Chief Magistrate Judge committed legal error

when she determined “there is a clearly established right that police officers are not

entitled to defend themselves from the threat of a firearm pointed at them.” (Doc. 82 at

3); id. at 5 (“The [Chief] Magistrate Judge’s decision that persons pointing a firearm and

persons in their vicinity have a clearly established right for the officer not to defend

himself is in error.”). Second, Defendants argue no material facts remain genuinely

disputed which preclude a finding of qualified immunity for Officer Hopper. Id. at 5-13.

As a result, Defendants contend the derivative-liability claims against the City of Hobbs

must also be dismissed at the summary judgment stage. Id. at 13-14.

In response, Trujillo contends Defendants frame the “clearly-established prong of

the qualified immunity standard” using “self-serving” evidence and testimony provided

by Officer Hopper, ignoring the legal mandate that the evidence be viewed in the light

most favorable to the non-movant. (Doc. 84 at 7-8) (citing Tolan v. Cotton, 572 U.S. 650,

657-60 (2014); Pauly v. White, 874 F.3d 1197, 1218 (10th Cir. 2017)). In addition, Trujillo

alleges the facts Officer Hopper boasts as “immaterial” are those which inform the

difference “between a potentially justified shooting and a clearly established violation of

the Garner rule.” (Doc. 84 at 6). In conclusion, Trujillo argues Officer Hopper is not

entitled to qualified immunity because “there are varying accounts of what happened

from different witnesses, including wildly inconsistent accounts from Hopper himself.”

Id. at 15.

2. Legal Standard

When resolving objections to a magistrate judge’s recommendation, the district

judge must make a de novo determination regarding any part of the recommendation to

which a party has properly objected. 28 U.S.C. § 636(b)(1)(C). Filing objections that

address the primary issues in the case “advances the interests that underlie the

Magistrate’s Act, including judicial efficiency.” United States v. One Parcel of Real Prop.,

With Bldgs., Appurtenances, Improvements, & Contents, 73 F.3d 1057, 1059 (10th Cir. 1996).

Objections must be timely and specific to preserve an issue for de novo review by the

district court or for appellate review. Id. at 1060. Additionally, issues “raised for the first

time in objections to the magistrate judge’s recommendation are deemed waived.”

Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996); see also United States v. Garfinkle, 261

F.3d 1030, 1031 (10th Cir. 2001).

3. Analysis

When a government defendant acting under color of state law raises the defense

of qualified immunity in a summary judgment proceeding, the burden shifts to the

plaintiff to prove that (1) a reasonable jury could find facts supporting a violation of a

constitutional right, and the right (2) was clearly established at the time of the defendant’s

conduct. Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014). The Court has

discretion to decide which of the two prongs of the qualified immunity test to address

first. Id. at 412. Once the plaintiff has met their initial burden of proof, the defendant must

then demonstrate that “no material issues of fact remain as to whether his . . . actions

were objectively reasonable in light of the law and the information he . . . possessed at the

time.” Zuchel v. Spinharney, 890 F.2d 273, 274 (10th Cir. 1989). If the defendant can

demonstrate that his actions were objectively reasonable under the circumstances, only

then is he entitled to summary judgment based on qualified immunity. Id.

Here, Defendants first contend the Chief Magistrate Judge erred in analyzing the

second prong of the qualified immunity analysis, that “there is a clearly established right

that police officers are not entitled to defend themselves from the threat of a firearm

pointed at them.” (Doc. 82 at 3). Defendants’ formulation of the right, and the evidentiary

prism in which they frame it, relies on their recitation of the facts and the “persuasive

picture” they have painted to justify Officer Hopper’s use of force. See Zuchel, 890 F.2d at

275. However, as the nonmovant, the evidence must be viewed in the light most favorable

to Trujillo. See Walker v. City of Orem, 451 F.3d 1139, 1155 (10th Cir. 2006) (explaining the

court must “examine the facts presented on summary judgment in the light most

favorable to the plaintiff, to determine whether they amount to a violation of a clearly-

established right”).

In viewing the evidence in the light most favorable to Trujillo − and disregarding

Defendants’ “rather one-sided factual summary” − the record tells a different story of

what occurred in the early morning hours of January 17, 2015. See Zuchel, 890 F.2d at 275.

Indeed, Trujillo alleges Officer Hopper arrived in the dimly lit parking lot of a local bar

in Hobbs, New Mexico, and “gave a single verbal warning announcing his presence that

was near simultaneous to the moment he began shooting.” (Doc. 81 at 9) (quoting Doc. 1

at 5). At least one eye-witness estimates that Trujillo was standing “ten to fifteen feet

away” from the suspect brandishing the firearm and had his arms raised above his head

when he was shot twice in the upper thigh. (Doc. 81 at 9-10); (Doc. 67 at 25). From

Trujillo’s account, he was on the scene trying to persuade the individual with the firearm

to “put the gun away” and was shot as he was backing away from the suspect with the

firearm. (Doc. 81 at 9-10) (citing (Doc. 1 at 3)).

After correctly framing the facts using the testimony and evidence presented by

Trujillo, the Court must now determine whether “clearly established law” rendered

Officer Hopper’s conduct unconstitutional. See Walker, 451 F.3d at 1147 (explaining that

the court must consider whether “the contours of the right were . . . sufficiently

established that a reasonable officer would have known that [his conduct] was

unlawful.”). While the court should not define “clearly established law at a high level of

generality,” it “should focus on whether the violative nature of particular conduct was so

clearly established that it put the officer on notice of the unconstitutionality of his

actions.” King v. Hill, 615 F. App’x 470, 477 (10th Cir. 2015) (unpublished) (quoting

Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). Importantly, “the more obviously egregious

the conduct in light of prevailing constitutional principles, the less specificity is required

from prior case law to clearly establish the violation.” Morris v. Noe, 672 F.3d 1185, 1196

(10th Cir. 2012).

In analyzing the use of force against an unarmed suspect, the Court is guided by

the foundational principles set forth in Tennessee v. Garner, 471 U.S. 1 (1985). Specifically,

in Garner, the United States Supreme Court concluded that “[w]here the suspect poses no

immediate threat to the officers and no threat to others, the harm resulting from failing

to apprehend him does not justify the use of deadly force to do so.” 471 U.S. at 11. While

Garner alone cannot “clearly establish” the law in this fact-specific circumstance, it

supplies the bedrock principle that “a police officer may not seize an unarmed, non-

dangerous suspect by shooting him dead.” Id.

Following the Supreme Court’s holding in Garner, the Tenth Circuit Court of

Appeals has further refined the limits on the use of deadly force against unarmed

suspects. See King, 615 F. App’x at 475-79 (collecting cases) (finding it was clearly

established that “an officer could not shoot an unarmed man who did not pose any actual

threat to the officer or to others.”); Morris, 672 F.3d at 1197-98 (finding the force used by

the defendant police officer was “clearly unjustified” when the suspect “was backing

away from [the defendant] in apparent attempt to deescalate the encounter” and “carried

no weapon, made no overt threats, and did not get within reach of [the defendant]”);

Walker, 451 F.3d at 1160 (“It was specifically established that where an officer had reason

to believe a suspect was only holding a knife, not a gun, and the suspect was not charging

the officer and had made no slicing or stabbing motions toward him, that it was

unreasonable for the officer to use deadly force against the suspect.”); Zuchel, 890 F.2d at

275 (concluding a trier of fact could find the defendant officer’s conduct was “not

objectively reasonable” when “[a]t least one witness estimated [plaintiff’s] distance from

[defendant] to be 10-12 feet at the time the shots were fired,” the plaintiff was “neither

charging [the officer] nor stabbing at him, but instead was shot after [the plaintiff]

stopped and was trying to explain what was going on,” and another witness testified that

“she could not see any weapon in [the plaintiff’s] hand”).

Under Garner and its progeny, the Court finds Trujillo has satisfied the second

prong of the qualified immunity analysis: it was clearly established that a police officer

may not shoot an unarmed man standing more than ten feet from the suspect brandishing

the firearm with his arms raised above his head. Having reached this conclusion, the

Court will overrule Defendants’ first objection to the Chief Magistrate Judge’s Proposed

Findings.

Next, after determining the law was clearly established at the time of Officer

Hopper’s conduct, the Court will now address Defendants’ second objection, that no

material facts remain disputed which preclude the Court from determining that Officer

Hopper’s conduct was objectively reasonable under the circumstances. While assessing

the “totality of the circumstances” that surrounded Officer Hopper in the early morning

hours of January 17, 2015, the Chief Magistrate Judge opined that several material facts

remained genuinely disputed, including “the timing and substance of Officer Hopper’s

verbal command, whether Trujillo complied with Officer Hopper’s commands before he

was shot … [and] whether Officer Hopper heard or saw gunshots before firing his

weapon.” (Doc. 81 at 12) (internal citations omitted). The Chief Magistrate Judge then

concluded that “an answer to these factual questions is necessary to determine whether

the first prong of the qualified immunity analysis is met − whether Officer Hopper

violated Trujillo’s Fourth Amendment right to be free from excessive force.” Id. at 14. As

a result, the Chief Magistrate Judge recommended that Officer Hopper’s qualified

immunity defense be denied at the summary judgment stage. Id.

The Court disagrees with Defendants’ contention that “[q]uestions regarding

Trujillo’s conduct and location are immaterial to whether Officer Hopper was justified in

defending himself when faced with a firearm pointed at him.” (Doc. 82 at 9). Rather, at

the heart of any excessive force claim is the “totality of the circumstances,” including the

facts and circumstances confronting the police officer in the moment. See Graham v.

Connor, 490 U.S. 386, 397 (1989); Garner, 471 U.S. at 8-9. In fact, the very “touchstone” of

the reasonableness inquiry under the Fourth Amendment is the totality of the

circumstances. Thomson v. Salt Lake City, 584 F.3d 1304, 1313 (10th Cir. 2009). This

inherently requires the court to “pay careful attention to the facts and circumstances of

the particular case,” including the “extremely relevant” events leading up to the moment

before the officer deployed deadly force. Id.; Phillips v. James, 422 F.3d 1075, 1083 (10th

Cir. 2005).

Defendants bear the burden of demonstrating that no genuine disputes of material

fact remain. See Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002) (“In the end,

therefore, the defendant still bears the normal summary judgment burden of showing no

material facts remain in dispute that would defeat the qualified immunity defense.”).

Here, many of the parties’ actions leading up to Officer Hopper’s use of force are

contested by differing eye-witness accounts. Both Plaintiff and Defendants produce

affidavits, deposition testimony, and trial testimony from competing witnesses who each

recall the specific circumstances surrounding Officer Hopper’s conduct differently. See

(Doc. 81 at 11). The competing testimony presented by the parties may “affect the

outcome of [this] suit,” and is such that “a reasonable jury could return a verdict for the

nonmoving party.” Allen v. Muskogee, Oklahoma, 119 F.3d 837 (10th Cir. 1997) (citing

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)) (defining what makes a dispute

“genuine” and when facts are considered “material”).

At this stage, the Court is not “entitled to weigh evidence or pass on the credibility

of witnesses.” Zuchel, 890 F.2d at 275-76. If the record contains sufficient evidence “which,

if believed by a trier of fact, could support a finding that [the defendant’s] conduct was

not objectively reasonable,” summary judgment on the basis of qualified immunity must

be denied. Id. It is soundly within the province of the jury to reconcile the inconsistent

testimony and assess the witnesses’ credibility to determine whether the record shows

Officer Hopper’s conduct was objectively reasonable. See id. (“When the record shows an

unresolved dispute of historical fact relevant to this immunity analysis, a motion for

summary judgment based on qualified immunity should be ‘properly denied.’”); see also

Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1251 (10th Cir. 2003) (“[W]here the historical

facts material to [the objective legal reasonableness of the officer’s actions] are in dispute

there is an issue for the jury.”) (internal brackets and citations omitted).

In sum, while Defendants’ label the factual disputes as minor or immaterial, the

substantive law governing the Fourth Amendment inquiry suggests otherwise. After

viewing the evidence in the light most favorable to Trujillo, the Court finds a reasonable

jury may find facts supporting a conclusion that Officer Hopper violated Trujillo’s Fourth

Amendment right. As a result, the Court will overrule Defendants’ second objection to

the Chief Magistrate Judge’s Proposed Findings.

4. Conclusion

Consistent with the foregoing, the Court finds the law was clearly established at

the time of Officer Hopper’s conduct. In addition, the Court concludes Defendants have

not sufficiently demonstrated that no genuine disputes as to material issues of fact remain

to satisfy their burden for summary judgment. As a result of these findings, Defendants’

request that Officer Hopper be afforded qualified immunity must be denied. Finally,

because liability may be imputed to Officer Hopper after questions of fact are submitted

for review before a jury, the Court further finds the claims against the City of Hopper

shall remain viable.

The Court will therefore denies Defendants’ Motion for Summary Judgment and

Memorandum in Support (Doc. 35), adopts the Chief Magistrate Judge’s Proposed

Findings and Recommended Disposition (Doc. 81), and overrules Defendants’ Objections

(Doc. 82).

IT IS SO ORDERED.

s/ J. Thomas Marten

J. Thomas Marten, Judge