Benavidez v. Shutiva

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integrity of this document

New Mexico Compilation

Commission, Santa Fe, NM

'00'04- 11:50:34 2015.06.30

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2015-NMCA-065

Filing Date: March 31, 2015

Docket No. 33,300

SALVADOR BENAVIDEZ,

Plaintiff-Appellant,

v.

CIBOLA COUNTY SHERIFF’S DEPUTIES STEVEN

SHUTIVA, GARRYL JAMES, PAT MARTINEZ, CIBOLA

COUNTY UNDERSHERIFF TONY MACE, CIBOLA

COUNTY SHERIFF JOHNNY VALDEZ, CIBOLA COUNTY

SHERIFF’S DEPARTMENT, CIBOLA COUNTY,

Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF CIBOLA COUNTY

John W. Pope and Violet Otero, District Judges

Law Office of Derek V. Garcia, P.C.

Derek V. Garcia

Albuquerque, NM

for Appellant

Brennan & Sullivan, P.A.

James P. Sullivan

Christina L. G. Brennan

Santa Fe, NM

Robyn Hoffman

Tijeras, NM

for Appellees

OPINION

BUSTAMANTE, Judge.

1

{1} After he was arrested and charged with leaving the scene of an accident, resisting

arrest, assault on a peace officer, and assault, Plaintiff Salvador Benavidez sued Deputies

Steven Shutiva, Garryl James, Pat Martinez, Cibola County Undersheriff Tony Mace, Cibola

County Sheriff Johnny Valdez, Cibola County Sheriff’s Department, and Cibola County

(Defendants) alleging violations of both the United States and New Mexico Constitutions

as well as common law tort claims. The district court granted Defendants’ motion for

summary judgment on the ground that Defendants were entitled to qualified immunity from

suit. Plaintiff appealed. We affirm in part and reverse in part.

I. Background

{2} Plaintiff was driving on Interstate 40 when his pickup truck was “lightly” rear-ended

by a motor home. Plaintiff did not immediately stop and the motor home driver called 911

to report the accident. Defendant James was dispatched and stopped both vehicles. The two

drivers disagreed about how exactly the accident occurred; Plaintiff maintained that he was

not at fault but the motor home driver asserted that Plaintiff had caused the accident by

pulling in front of the motor home and braking suddenly. Two other deputies arrived to assist

James.

{3} After James approached Plaintiff’s truck, Plaintiff got out and began arguing with

James about the cause of the accident. Plaintiff admits that he “aggressively argued his

innocence, asking . . . James why he had been stopped and insisting that he had done nothing

wrong.” He also walked toward the motor home, gesturing with his arms, swearing, and

saying “[t]ell me to my face,” among other things, to the motor home driver in a loud voice.

After Plaintiff either dropped or threw his identification on the ground, and then threw his

wallet on the ground, Defendant Shutiva handcuffed Plaintiff and seated him on the bumper

of Plaintiff’s truck. He was later placed in James’s police car and transported to the Cibola

County Detention Center. Throughout the encounter, Plaintiff swore at the Defendants and

used “racially[]charged language.”

{4} Plaintiff was charged with leaving the scene of an accident, assault on the motor

home driver, resisting arrest, and assault upon a peace officer. The charges were later

dismissed. Plaintiff then filed a complaint under 42 U.S.C. § 1983 (1996) alleging violations

of the United States and New Mexico Constitutions and the New Mexico Tort Claims Act

(NMTCA). Specifically, he alleged unreasonable seizure/arrest, selective and malicious

prosecution, excessive force, retaliation for exercise of the right to freedom of speech, and

false imprisonment. The district court granted Defendants’ motion to dismiss based on its

findings that the arrest and prosecution were supported by probable cause, the force used was

reasonable, and Plaintiff’s language constituted “fighting words” not protected by the First

Amendment of the United States Constitution. Plaintiff appeals the dismissal of his

complaint. Additional facts are provided as necessary to our discussion.

II. Discussion

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Section 1983 and Qualified Immunity

{5} “A person acting under color of state law who violates the rights of a plaintiff

established by the United States Constitution or federal statutes may be held personally

liable for his or her action under 42 U.S.C. § 1983.” Archuleta v. Lacuesta, 1999-NMCA-

113, ¶ 7, 128 N.M. 13, 988 P.2d 883. Section 1983 claims are “limited to deprivations of

federal constitutional rights and federal statutory and regulatory rights. It does not cover

official conduct that violates only state law.” 1 Martin A. Schwartz, Distinguishing Federal

Constitutional Violations From State Law Wrongs, Section 1983 Litigation Claims &

Defenses § 3.02 (4th ed. 2007) (footnote omitted); accord Wells v. Valencia Cnty., 1982-

NMSC-048, ¶ 6, 98 N.M. 3, 644 P.2d 517. Although courts often use common law torts as

analogues to claims under § 1983, such as false arrest, false imprisonment, malicious

prosecution, assault, and battery, “the ultimate question is whether [a] plaintiff can prove a

constitutional violation.” Pierce v. Gilchrist, 359 F.3d 1279, 1288 (10th Cir. 2004); see

Schwartz, supra, § 3.02 (“[C]ourts frequently experience difficulties in determining whether

conduct that is actionable under state tort law . . . also violates some provision of the federal

Constitution. Because § 1983 itself does not establish or create any rights, the answer to this

question requires an interpretation of the federal Constitution itself, rather than of § 1983.”

(footnote omitted)). Thus, the courts may use common law torts as a “starting point,” but not

as the “final word” on whether a constitutional violation has occurred. Pierce, 359 F.3d at

1288; accord Wells, 1982-NMSC-048, ¶ 6. The “common law” with which courts begin their

analyses is “the general common law tradition, rather than . . . the law as defined by the

jurisdiction where the action originated.” Pierce, 359 F.3d at 1289.

{6} “The doctrine of qualified immunity protects 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) (internal quotation marks and citation omitted). To

overcome the qualified immunity defense, a “plaintiff must demonstrate that (1) the

defendant’s alleged conduct violated a constitutional or statutory right, and (2) the right was

clearly established at the time of the conduct.” Williams v. Bd. of Cnty. Comm’rs of San

Juan Cnty., 1998-NMCA-090, ¶ 24, 125 N.M. 445, 963 P.2d 522. “[A] legal point is clearly

established . . . when it has been decided by either the highest state court where the cause of

action arose, by a United States court of appeals, or by the United States Supreme Court.”

Sanders v. Montoya,1999-NMCA-079, ¶ 12, 127 N.M. 465, 982 P.2d 1064 (alteration in

original) (internal quotation marks and citation omitted). “The granting of qualified

immunity results in immunity from suit.” Oldfield v. Benavidez, 1994-NMSC-006, ¶ 12, 116

N.M. 785, 867 P.2d 1167.

State Constitutional and Tort Claims

{7} Although a tort does not always rise to a constitutional violation, when it does, “the

federal remedy under § 1983 for deprivation of constitutional rights is supplementary to a

state remedy.” Wells, 1982-NMSC-048, ¶ 13. Thus, “[t]he [NMTCA] does not prohibit a

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plaintiff from bringing an action for damages under the [NMTCA] where the plaintiff also

pursues, by reason of the same occurrence, an action against the same government under 42

U.S.C. § 1983.” Id. ¶ 16; see NMSA 1978, § 41-4-12 (1977) (“The immunity granted

pursuant to [NMTCA] does not apply to liability for personal injury, . . . false imprisonment,

false arrest, malicious prosecution, abuse of process, . . . or deprivation of any rights,

privileges or immunities secured by the constitution and laws of the United States or New

Mexico when caused by law enforcement officers while acting within the scope of their

duties.”).

Standard of Review

{8} On appeal from a grant of summary judgment based on qualified immunity, “[w]e

view the evidence presented in the light most favorable to the party opposing summary

judgment” and review the district court’s decision de novo. Archuleta, 1999-NMCA-113,

¶ 6. We “look at the undisputed facts and those facts adduced by the party opposing

summary judgment to see if there is any evidentiary support for finding a possible violation

of law . . . . [I]f the law may have been violated, [we] must ask if that law was clearly

established at the time of the alleged violation.” Id. (internal quotation marks and citation

omitted). But, if it is clear that the relevant legal issue was not clearly established at the time,

we may not reach the first issue. See Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per

curiam) (stating that “[c]ourts have discretion to decide the order in which to engage the[]

two prongs [of the qualified immunity analysis]”). As will be seen, for the most part the

parties here do not dispute that the relevant law was clearly established when Plaintiff was

arrested and thus, with one exception, our focus is on the “possible violation” part of the

inquiry. If there is a genuine dispute over a material fact relevant to whether qualified

immunity applies, summary judgment on this basis is improper. Id.

Plaintiff’s Claims

{9} As a preliminary matter, we note that Plaintiff made several arguments on appeal that

we do not address because they were not adequately developed, not preserved, or raised for

the first time in Plaintiff’s reply brief. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-

045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (“We will not review unclear arguments, or guess

at what [a party’s] arguments might be.”); State Farm Mut. Auto. Ins. Co. v. Barker, 2004-

NMCA-105, ¶ 20, 136 N.M. 211, 96 P.3d 336 (“We will not entertain an argument made for

the first time on appeal.”); Mitchell-Carr v. McLendon, 1999-NMSC-025, ¶ 29, 127 N.M.

282, 980 P.2d 65 (stating that “the general rule is that we do not address issues raised for the

first time in a reply brief” except when the arguments are in response to issues raised in the

answer brief). These arguments include (1) that Defendants targeted him because he is the

former sheriff of the county; (2) that New Mexico’s Constitution requires a different

probable cause standard than the federal constitution because “the New Mexico Constitution

has been interpreted more broadly than its federal counterpart”; and (3) that Defendants

“selectively prosecuted” him when they did not charge the motor home driver for following

too closely behind him.

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{10} Plaintiff’s claims—and his arguments on appeal—can be grouped into four broad

categories. He argues that (1) Defendants arrested him without probable cause, (2)

Defendants filed charges against him without probable cause, (3) Defendants used excessive

force in the use of handcuffs during the arrest, and (4) Defendants retaliated against him for

exercising his free speech rights during the arrest. We address each issue in turn.

A. Unreasonable Seizure—Counts I, V, and VII

{11} Plaintiff argues that Defendants violated his right to be free from unreasonable

seizures when they arrested him without probable cause. He alleges that his arrest violated

both the United States Constitution and the New Mexico Constitution, and constituted the

tort of false imprisonment. See U.S. Const. amend. IV; N.M. Const. art. II, § 10. The parties

agree that it is well-established that “arrest without probable cause is indeed a violation of

the Fourth Amendment protection against illegal search and seizure” and that this protection

was established at the time of Plaintiff’s arrest. Dickson v. City of Clovis, 2010-NMCA-058,

¶ 7, 148 N.M. 831, 242 P.3d 398. Therefore, the only question here is whether there are

disputed material facts concerning whether Defendants violated Plaintiff’s rights or

committed the tort of false imprisonment by arresting him without probable cause.

{12} “A warrantless arrest is valid where the officer has probable cause to believe that a

crime has been committed by the person whom he arrests.” State v. Jones, 1981-NMSC-013,

¶ 7, 96 N.M. 14, 627 P.2d 409. “Probable cause exists when the facts and circumstances

within the knowledge of the officers, based on reasonably trustworthy information, are

sufficient to warrant a person of reasonable caution to believe that an offense has been or is

being committed.” State v. Cohen, 1985-NMSC-111, ¶ 36, 103 N.M. 558, 711 P.2d 3. When

probable cause is present, “a person cannot be held liable for false arrest or imprisonment,

since probable cause provides him with the necessary authority to carry out the arrest.”

Santillo v. N.M. Dep’t of Pub. Safety, 2007-NMCA-159, ¶ 12, 143 N.M. 84, 173 P.3d 6.

Probable cause to arrest for a single charge will suffice to immunize Defendants from

Plaintiff’s wrongful arrest claims. See Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 682

(7th Cir. 2007) (“An arrested individual is no more seized when he is arrested on three

grounds rather than one; and so long as there is a reasonable basis for the arrest, the seizure

is justified on that basis even if any other ground cited for the arrest was flawed.” (citing

Devenpeck v. Alford, 543 U.S. 146, 153-55 (2004)). “Whether probable cause exists is a

mixed question of law and fact.” Dickson, 2010-NMCA-058, ¶ 8 (internal quotation marks

and citation omitted).

{13} We conclude that Plaintiff’s arrest was supported by probable cause because it was

reasonable for Shutiva to believe that Plaintiff assaulted a peace officer. Assault on a peace

officer consists of “an attempt to commit a battery upon the person of a peace officer while

he is in the lawful discharge of his duties” or “any unlawful act, threat or menacing conduct

which causes a peace officer while he is in the lawful discharge of his duties to reasonably

believe that he is in danger of receiving an immediate battery.” NMSA 1978, § 30-22-21(A)

5

(1971). On appeal, Plaintiff does not dispute that he “aggressively argued his innocence,”

that he threw his wallet on the ground near the officers, and that he raised his arms in the air

and pointed at the officers. In his deposition, Plaintiff admitted that he was yelling “at the

top of [his] lungs” at the motor home driver and that he called the officers names and swore

at them. Nevertheless, Plaintiff maintains that this charge was not supported by probable

cause because no officer later testified that he felt in fear of an imminent battery. But

Defendants are not required to prove every element of assault. Holmes, 511 F.3d at 679

(“Probable cause requires more than a bare suspicion of criminal activity, but it does not

require evidence sufficient to support a conviction.”). The question here is simply whether

Shutiva had a reasonable belief at the time he made the arrest that Plaintiff was guilty of

assault.

{14} In State v. Ford, this Court examined whether a conviction for assault on a peace

officer was supported by substantial evidence. 2007-NMCA-052, ¶ 29, 141 N.M. 512, 157

P.3d 77. There, the Court held that the evidence supported the conviction where defendant

had “approached the officers coming within inches of them while shaking his fists at them.”

Id. ¶¶ 5, 29. The Court stated, “The evidence against [the d]efendant that he was verbally and

physically threatening to the officers . . . is sufficient to circumstantially support the

inference that [the officer] was in fear of having his bodily integrity intruded upon.” Id. ¶

29. It concluded that “reasonable people under these circumstances being aggressively

approached by a man, who is shouting and threatening to punch them, would fear for their

personal safety. [The defendant] acted aggressively by raising his fists, shouting, and coming

within a few inches of them.” Id. Obviously, in Ford, the Court was examining whether the

evidence supported a conviction of assault beyond a reasonable doubt, not, as here, whether

an officer had a reasonable belief that an assault had occurred. In addition, the conduct here

appears not to have been as threatening as that in Ford. Nevertheless, Plaintiff’s conduct was

sufficiently similar to that in Ford that it sufficed to establish probable cause for arrest for

assault on a peace officer. The district court did not err in dismissing Plaintiff’s claims based

on lack of probable cause to arrest.

B. Malicious Prosecution/Malicious Abuse of Process—Counts II and VIII

{15} Counts II and VIII of the complaint allege that Defendants maliciously prosecuted

him. In Count II, Plaintiff claims that his rights under the Fourth and Fourteenth

Amendments to the United States Constitution were violated when Defendants filed a

complaint against him. See U.S. Const. amends. IV, XIV, § 1. He also alleges in Count VIII

that “Defendants were the actual and proximate causes of injury to Plaintiff when they

caused the charging of him for crimes without probable cause.” The latter claim appears to

have been brought under the New Mexico Constitution and/or state tort law. We begin by

discussing malicious prosecution claims under the United States Constitution.

{16} The law governing malicious prosecution under the Fourth and Fourteenth

Amendments is convoluted. See Becker v. Kroll, 494 F.3d 904, 913 (10th Cir. 2007)

(describing the law of § 1983-based malicious prosecution claims as “murky”). That being

6

the case, we start with some historical background to such claims. “There is . . . an

embarrassing diversity of judicial opinion over the composition, or even existence, of a claim

for ‘malicious prosecution’ founded in § 1983.” Lambert v. Williams, 223 F.3d 257, 260

(4th Cir. 2000) (internal quotation marks and citation omitted); 1 Sheldon H. Nahmod, Civil

Rights & Civil Liberties Litigation: The Law of Section 1983 § 3:64 (4th ed. 2011) (“Before

the Supreme Court’s 1994 decision in Albright v. Oliver, [510 U.S. 266 (1994)] there was

considerable uncertainty in the circuits about the nature and scope of these § 1983 malicious

prosecution and abuse of process actions.” (footnote omitted)). In Albright, the Supreme

Court examined whether there existed “a substantive right under the Due Process Clause of

the Fourteenth Amendment to be free from criminal prosecution except upon probable

cause.” Albright, 510 U.S. at 268; see Steven H. Steinglass, 1 Section 1983 Litigation in

State Courts § 3:11 (1988) (stating the issue as “whether malicious prosecution, standing

alone, g[ave] rise to a constitutional violation actionable under § 1983.”). “[A] plurality of

the Supreme Court held [in Albright] that the Fourth Amendment governed pretrial

deprivations of liberty” and that “Fourteenth Amendment substantive due process standards

have no applicability.” Taylor v. Meacham, 82 F.3d 1556, 1560 (10th Cir. 1996) (internal

quotation marks and citation omitted); see also Nahmod, supra, § 3:66. But “[b]ecause of

the absence of an opinion of the Court and the conflicting views of those Justices who only

concurred in the judgment, the issue of the availability of § 1983 to pursue malicious

prosecution-type claims will continue to be an area of uncertainty.” Steinglass, supra.

Albright left open the possibility that malicious prosecution may constitute a § 1983 claim

based on a violation of another explicit constitutional right, such as those guaranteed by the

Fourth Amendment or the Fourteenth Amendment’s procedural due process protections. See

Albright, 510 U.S. at 271 (stating that the plaintiff did not raise his claim under the Fourth

Amendment or procedural due process and thus his “claim before [the] Court [wa]s a very

limited one[]”); Nahmod, supra, § 3:66.

{17} Case law following Albright has taken a variety of paths. See Nahmod, supra, § 3.67

(stating that “the impact of Albright has been dramatic[,]” describing the state of the law as

“complicat[ed,]” and collecting cases). But “[f]or the most part, the Courts of Appeals which

have considered the issue have recognized a Fourth Amendment malicious prosecution

action subsequent to Albright,” Michael Avery, et al., Police Misconduct: Law and

Litigation § 2:14 (3d ed. 2014), and some have recognized a malicious prosecution claim

based on other constitutional provisions. Avery, supra, § 2:14, at n.5. For example, the Tenth

Circuit has recognized malicious prosecution claims based on both the Fourth Amendment

and the Fourteenth Amendment procedural due process. See Myers v. Koopman, 738 F.3d

1190, 1194 (10th Cir. 2013), cert. denied, 134 S. Ct. 2842 (2014) (“Unreasonable seizures

imposed with legal process precipitate Fourth Amendment malicious-prosecution claims.”);

Mondragon v. Thompson, 519 F.3d 1078, 1083 (10th Cir. 2008) (“This Circuit . . . has held

that the [United States] Constitution permits [procedural] due process claims for wrongful

imprisonment after the wrongful institution of legal process.”).

Fourteenth Amendment

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{18} “The Fourteenth Amendment protects individuals against deprivations of liberty

without due process of law.” Myers, 738 F.3d at 1193. “[T]he Due Process Clause of the

Fourteenth Amendment confers both substantive and procedural rights.” Albright, 510 U.S.

at 272. To the extent that Plaintiff alleges a violation of his substantive due process rights,

the United States Supreme Court foreclosed that avenue in Albright, as discussed. To the

extent that Plaintiff alleges a violation of his procedural due process rights, this argument

is also unavailing. “If a state actor’s harmful conduct is unauthorized and thus could not be

anticipated pre-deprivation, then an adequate post-deprivation remedy—such as a state tort

claim—will satisfy [procedural] due process requirements.” Myers, 738 F.3d at 1193. Since

New Mexico tort law provides a remedy for malicious abuse of process,1 sufficient

procedural due process has been provided to Plaintiff. See id. (stating that “[t]he existence

of the state remedy flatten[ed] the Fourteenth Amendment peg on which [the plaintiff tried]

to hang his § 1983 malicious[]prosecution claim” and holding that the plaintiff’s Fourteenth

Amendment malicious prosecution claim was properly dismissed). Hence, to the extent

Plaintiff’s malicious prosecution claim was based on the Fourteenth Amendment, it was

properly dismissed.

Fourth Amendment

{19} We turn next to the Fourth Amendment as a basis for a malicious prosecution claim.

Because Plaintiff makes the same arguments for his Fourth Amendment and state law claims,

we discuss them together. A Fourth Amendment malicious prosecution claim is

distinguished from a Fourth Amendment false arrest claim by the institution of legal process.

Myers, 738 F.3d at 1194. “[L]egal process” can be instituted by the filing of a criminal

complaint. Nieves v. McSweeney, 241 F.3d 46, 54 (1st Cir. 2001); Salcedo v. Town of

Dudley, 629 F. Supp. 2d 86, 98 (D. Mass. 2009). Because the constitutional right protected

by the Fourth Amendment is the freedom from unreasonable seizures, a claimant must, as

a foundational matter, demonstrate a “significant restriction on liberty.” Becker, 494 F.3d

at 915. Further, in the Tenth Circuit, analysis of a § 1983 malicious prosecution claim is

guided by the following elements: “(1) the defendant caused the plaintiff’s continued

confinement or prosecution; (2) the original action terminated in favor of the plaintiff; (3)

no probable cause supported the original arrest, continued confinement, or prosecution; (4)

the defendant acted with malice; and (5) the plaintiff sustained damages.” Wilkins v.

DeReyes, 528 F.3d 790, 799 (10th Cir. 2008).

New Mexico Tort Claims

1

In DeVaney v. Thriftway Mktg. Corp., 1998-NMSC-001, ¶ 53, 124 N.M. 512, 953

P.2d 277, overruled on other grounds by Durham v. Guest, 2009-NMSC-007, ¶ 29, 145

N.M. 694, 204 P.3d 19, the New Mexico Supreme Court held that “malicious prosecution

and abuse of process should be restated as a single cause of action known as malicious abuse

of process.”

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{20} Under New Mexico tort law, to prevail on a malicious abuse of process claim a

plaintiff must demonstrate “(1) the use of process in a judicial proceeding that would be

improper in the regular prosecution or defense of a claim or charge; (2) a primary motive in

the use of process to accomplish an illegitimate end; and (3) damages.” Durham, 2009-

NMSC-007, ¶ 29. “An improper use of process may be shown by (1) filing a complaint

without probable cause, or (2) an irregularity or impropriety suggesting extortion, delay, or

harassment, or other conduct formerly actionable under the tort of abuse of process.” Id.

(alteration, internal quotation marks, and citation omitted). In this context, “probable cause

[i]s the reasonable belief, founded on known facts established after a reasonable pre-filing

investigation, that a claim can be established to the satisfaction of a court or jury.” DeVaney,

1998-NMSC-001, ¶ 22 (citations and footnote omitted). The probable cause analysis focuses

on what the officer knew at the time the complaint was filed. Weststar Mortg. Corp. v.

Jackson, 2003-NMSC-002, ¶ 16, 133 N.M. 114, 61 P.3d 823 (“Probable cause . . . is to be

judged by facts as they appeared at the time, not by later-discovered facts.” (internal

quotation marks and citation omitted)). Finally, “the tort of malicious abuse of process [is]

construed narrowly [in order] to protect the right of access to the courts.” Id. ¶ 14 (internal

quotation marks and citation omitted).

{21} Plaintiff alleged in his complaint that the charges were not based on probable cause.

The district court based its ruling solely on its determination to the contrary that probable

cause supported the charges. The parties did not raise or argue any of the other elements

associated with malicious prosecution in the district court or on appeal. Thus, we too focus

only on whether the district court’s grant of summary judgment on the basis of probable

cause for both the constitutional and tort claims was proper.

{22} The district court found that “[o]ne or more of the charges brought against Plaintiff

were based upon probable cause.” Neither party addresses whether probable cause to

support one charge precludes a malicious abuse of process claim for charges not supported

by probable cause. Therefore, we assume without deciding that in this context probable

cause for a single charge does not preclude such a claim for unsupported charges. See

Holmes, 511 F.3d at 682-683 (“[P]robable cause to believe an individual committed one

crime—and even his conviction of that crime—does not foreclose a malicious prosecution

claim for additionally prosecuting the individual on a separate charge.”); but see Fleetwood

Retail Corp. of N.M. v. LeDoux, 2007-NMSC-047, ¶ 20, 142 N.M. 150, 164 P.3d 31

(“[P]robable cause relates to the complaint as a whole, and the original plaintiff need not

show favorable termination of each individual claim to establish an effective defense to a

subsequent suit for malicious abuse of process.”).

Leaving the Scene of an Accident

{23} We begin with the charge of leaving the scene of an accident, contrary to NMSA

1978, § 66-7-201(D) (1989), and failure to comply with the requirements set out in NMSA

1978, 66-7-203 (1978). Immediately after the accident, the motor home driver called 911 and

reported that he had rear-ended a truck and that the truck’s driver had not stopped. Plaintiff

9

does not dispute that the motor home hit his truck and that he did not immediately stop.

Instead of disputing these facts, Plaintiff maintains that he did not know that he had been hit

and complied with Defendants’ request for his identification when they stopped him and,

therefore, did not violate Sections 66-7-201(C) or -203, which require drivers involved in

traffic accidents to stop and provide identification and assistance to the other driver. These

arguments are unavailing for two reasons. First, Plaintiff was arrested and charged for failure

to comply with Section 66-7-201(D), not (C). Unlike Subsection (C), Subsection (D) does

not require that a person “knowingly” fail to stop. Compare § 66-7-201(C) with § 66-7-

201(D). Second, Section 66-7-203 requires a person to provide certain information,

including his or her driver’s license, “to the person struck or the driver or occupant of . . .

any vehicle collided with.” The fact that Plaintiff provided his identification to Defendants

after they stopped him is therefore irrelevant to his compliance with Section 66-7-203.

Because it was reasonable for Defendants to believe that a crime had been committed based

on Plaintiff’s admissions, this charge was supported by probable cause.

Resisting Arrest

{24} The criminal complaint alleges that Plaintiff “intentionally fled, resisted, obstructed,

or attempted to evade or evaded [Defendant] Shutiva, . . . knowing that the officer was

attempting to apprehend or arrest [him].” See NMSA 1978, § 30-22-1 (1981). The charge

thus requires both evasive or obstructive behavior and knowledge that the officer is

attempting to arrest.

{25} The evidence presented to the district court demonstrates disparate views of the facts.

For instance, Plaintiff stated that it was Martinez who handcuffed him, whereas Shutiva

testified that he placed Plaintiff in handcuffs. Plaintiff stated in his deposition that Shutiva

told him he was under arrest for “hit and run” after he was pulled over but before he was

handcuffed. But Shutiva testified that he did not tell Plaintiff that he was under arrest before

Plaintiff was handcuffed and did not tell him until “later through the investigation.” While

Plaintiff testified that Martinez told him to turn around and put his hands on the hood of the

truck, that he did not put his hands on the truck, and that Martinez then “turned [him] around

and . . . forced [him] down and . . . put the handcuffs on [him],” Shutiva testified that he

“turned [Plaintiff] around to begin placing handcuffs on him[,]” that Plaintiff was

“uncooperative, yelling at [him,]” and that Shutiva “remember[ed Plaintiff] pulling away a

bit.”

{26} Both parties cite to the dashcam video of the stop in support of their version of the

facts surrounding the handcuffing. Although they recognize that the facts must be construed

in Plaintiff’s favor, Defendants rely on Scott v. Harris for the proposition that “[w]hen

opposing parties tell two different stories, one of which is blatantly contradicted by the

record, 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.” 550 U.S. 372, 380

(2007); see State v. Martinez, 2015-NMCA-___, ¶ 16, ___ P.3d. ___ (No. 32,516, Jan. 6,

2015) (relying on a dashcam video and on a Texas case in which the Texas Criminal Court

10

of Appeals reversed a denial of a suppression motion where the video included “indisputable

visual evidence contradicting essential portions of the officer’s testimony, and . . . the

evidence presented on the video did not turn on an evaluation of credibility and demeanor”

(internal quotation marks and citation omitted)). Scott and Martinez are distinguishable

because in those cases the video was used to establish a fact that did not depend on

interpretation of people’s body language or demeanor. Here, while the identity of the officer

doing the handcuffing might be conclusively resolved by the video, even Defendants

acknowledge that some parts of the handcuffing are obscured and that it is not clear whether

Plaintiff pulled the officer with him into the cab of the truck or was pushed by the officer.

In addition, whether Plaintiff’s movement during the handcuffing constituted resisting arrest

depends on one’s interpretation of that movement.

{27} Perez v. City of Albuquerque presents a more analogous use of a video. 2012-

NMCA-040, 276 P.3d 973. In that case, this Court assessed the propriety of a denial of a

motion for directed verdict where the defendant argued that “there [wa]s only one

interpretation of the videotape [of the defendant’s arrest] and that no reasonable factfinder

could disagree that the [police o]fficers acted unreasonably after [the p]laintiff was

handcuffed.” Id. ¶ 9. The Court disagreed, stating that the plaintiff’s reliance on Scott was

misplaced because “[r]easonable jurors watching the videotape and hearing the testimony

of [the] witnesses could disagree over the constitutionality of the [police o]fficers’ actions.”

Id. ¶ 10. Thus, “[w]hether the actions of the [police o]fficers were unreasonable under the

circumstances was a question for the jury to decide.” Id. The question here is whether

Shutiva had probable cause to charge Plaintiff with resisting arrest, which hinges on whether

it was reasonable for Shutiva to believe that Plaintiff was guilty of the charge. Like in Perez,

and unlike in Martinez and Scott, that question depends in part on interpretation of Plaintiff’s

demeanor. Combined with the conflicts in the deposition testimony, we conclude that the

interpretation of the video gives rise to a dispute over material facts related to the existence

of probable cause. The district court erred in granting summary judgment as to this claim.

Assault on Motor Home Driver

{28} Finally, we examine whether the charge of assault on the motor home driver was

supported by probable cause. We begin by setting out the undisputed facts. First, after being

pulled over, Plaintiff loudly challenged the motor home driver to tell him why the motor

home driver had called the police. Plaintiff admitted in deposition testimony that he was

yelling “at the top of his lungs” at the motor home driver to “[c]ome over here,

motherfucker[]. Tell me to my face. Don’t be telling it to the cops. Tell it to my face what

the fuck you’re doing.” Second, the parties agree that Plaintiff was raising his arms,

although they differ on the precise nature of the gesture. Shutiva testified that Plaintiff was

making “a challenging motion . . . . Like somebody calling you on to a fight. And waving

his arms in the air. Like [a] ‘bring it on’ type of gesture.” Plaintiff states on appeal that he

“rais[ed] his hands into the air” while challenging the motor home driver and that he

“pointed toward the sky in an angry manner.” Third, both Plaintiff and Shutiva testified in

their depositions that the motor home was approximately fifty yards from Plaintiff at the

11

time. Fourth, the parties agree that there were three officers present at the time.

{29} The criminal complaint alleges that Plaintiff “did perform an unlawful act, threat[,]

or menacing conduct which caused [the motor home driver] to reasonably believe that he

was in danger of receiving an immediate battery, contrary to [NMSA 1978, Section] 30-3-1

[1963].” The uniform jury instruction associated with assault states the elements of the

charge in relevant part as follows.

1. The defendant [description of the unlawful act, threat[,] or menacing

conduct committed by the defendant];

2. The defendant’s conduct caused [the victim] to believe the defendant

was about to intrude on [the victim’s] bodily integrity or personal safety by

touching or applying force to [the victim] in a rude, insolent or angry

manner;

3. A reasonable person in the same circumstances as [the victim] would

have had the same belief[.]

UJI 14-302 NMRA. The phrase “touching or applying force to [the victim] in a rude,

insolent or angry manner” in UJI 14-302 echoes the language of the uniform jury instruction

for battery and applies to the “battery” referenced in the assault statute. See UJI 14-320

NMRA; § 30-3-1; NMSA 1978, § 30-3-4 (1963). Similarly, the phrase “about to” refers to

the statute’s requirement that the threat be “immediate.” See § 30-3-1. “About to” is defined

in the Merriam-Webster Dictionary as “on the verge of.” http://www.merriam-

webster.com/dictionary/about (last visited Feb. 10, 2015). Similarly, our case law has

equated the phrase with “imminent.” See, e.g., State v. Chavez, 1982-NMCA-072, ¶ 13, 98

N.M. 61, 644 P.2d 1050 (holding that “ ‘[i]mminent’ means: ‘about to happen’; ‘ready to

take place’; ‘near at hand’ ” (citation omitted); State v. Valdez, 1990-NMCA-134, ¶ 14, 111

N.M. 438, 806 P.2d 578 (stating that while there was no evidence that the defendant was

“about to” destroy evidence, the police could have acted without a warrant if “destruction

became imminent”); cf. Romero v. Sanchez, 1995-NMSC-028, ¶ 12, 119 N.M. 690, 895 P.2d

212 (equating an “immediate battery” with an “imminent battery”). “Imminent” means

“happening very soon” or “ready to take place.” Merriam Webster Dictionary,

http://www.merriam-webster.com/dictionary/imminent (last visited Feb. 10, 2015).

{30} With this background in mind, we return to the question of whether the charge of

assault on the motor home driver was based on a reasonable belief that the crime of assault

had occurred. In other words, was it objectively reasonable for Shutiva to believe that

Plaintiff had assaulted the motor home driver? This determination in turn depends on

whether it would have been objectively reasonable for the motor home driver to believe that

he was about to be battered. Based on the undisputed facts, we conclude that it was neither

reasonable for the motor home driver to believe that a battery was imminent nor for Shutiva

to believe that Plaintiff had committed assault against the motor home driver because (1) the

12

driver was in the motor home fifty yards away from Plaintiff, and (2) there were three

officers at the scene at the time. We conclude that the assault charge was not supported by

probable cause, and the district court erred in granting summary judgment on this issue. See

Yucca Ford, Inc. v. Scarsella, 1973-NMCA-042, ¶ 6, 85 N.M. 89, 509 P.2d 564 (“If the facts

are sufficient to show an absence of probable cause and are not disputed, this determination

disposes of the probable cause issue.”)

{31} In sum, we conclude that (1) the district court properly granted summary judgment

as to Plaintiff’s malicious prosecution claim based on the charge of leaving the scene of an

accident, (2) there are disputed issues of material fact that preclude summary judgment as

to Plaintiff’s malicious prosecution claim based on the resisting arrest charge, and (3)

summary judgment as to Plaintiff’s malicious prosecution claim based on the assault on the

motor home driver was improper because there was no probable cause supporting the charge.

The district court’s order as to Counts II and VIII is thus affirmed in part and reversed in

part.

Excessive Force—Counts III and VI

{32} Plaintiff alleged in his complaint that Defendants used excessive force in their use

of handcuffs in violation of his Fourth Amendment right to be free from unreasonable

seizures. He also alleged personal injuries due to excessive force under the NMTCA. The

district court granted summary judgment as to this issue, stating that “[t]he force used by

[Defendants] attendant to the arrest of Plaintiff was reasonable” and that “ Plaintiff did not

present evidence or otherwise show that the force used by [Defendants] to effectuate the

arrest of Plaintiff violated clearly established law.”

{33} When “officers move for qualified immunity on an excessive force claim, a plaintiff

is required to show that the force used was impermissible (a constitutional violation) and that

objectively reasonable officers could not have . . . thought the force constitutionally

permissible (violates clearly established law).” Cortez v. McCauley, 478 F.3d 1108, 1128

(10th Cir. 2007) (en banc). Because “[t]he right to be free from excessive force is a clearly

established right under the Fourth Amendment’s prohibition against unreasonable seizures

of the person[,]” we focus on whether the force used here was impermissible. Crumley v.

City of St. Paul, 324 F.3d 1003, 1007 (8th Cir. 2003) (internal quotation marks and citation

omitted). In excessive force claims, the use of handcuffs “could constitute excessive force

if a plaintiff alleges: “(1) ‘some actual injury that is not de minimis, be it physical or

emotional[;]’ and (2) that the officer ignored the ‘plaintiff’s timely complaints . . . that the

handcuffs were too tight.’ ” Griffin v. Penn, 2009-NMCA-066, ¶ 18, 146 N.M. 610, 213 P.3d

514 (quoting Cortez, 478 F.3d at 1129 (alteration in original))2. For example, in Griffin, the

2

In Griffin, the Court addressed an excessive force claim under the Eighth

Amendment, not the Fourth Amendment. It acknowledged “that excessive force claims

utilize different standards under the Fourth and Eighth Amendments” and stated that “[t]he

13

plaintiff alleged that the use of handcuffs constituted excessive force. Id. ¶ 17. In considering

whether summary judgment had been properly granted, the Griffin Court accepted the

plaintiff’s allegation that the defendants ignored his complaints that the handcuffs were too

tight, but nevertheless concluded that plaintiff’s claim failed as a matter of law because he

did not present evidence of an “actual injury.” Id. ¶ 20.

{34} Here, Plaintiff testified in his deposition that the officer handcuffing him “squeezed

[the handcuffs] as hard as he could,” that the handcuffs were too tight, that the resultant

bruising turned his hands “black” and that, although he did not seek treatment for injuries

to his hands and wrists after an initial visit to the hospital, he has suffered mental and

emotional distress severe enough to require medication. Plaintiff also presented a color

photograph of his bruised wrists to the district court. In addition, Plaintiff testified that after

he complained that the handcuffs were too tight, “[an] officer loosened [the] right one and

. . . tried to loosen the left one[,] but . . . didn’t.” He stated that the officers “unloosened [the

handcuffs] but they were still too tight.” But Plaintiff also testified that he bruises easily.

Additionally, although he maintained that “the bruising [was] because the handcuffs [were]

too tight,” he also admitted that the bruising could have been caused by his own struggling

against them. Viewing the evidence in the light most favorable to Plaintiff, we conclude that

this evidence establishes a question of fact as to excessive force in handcuffing sufficient to

preclude summary judgment on this claim. See Archuleta, 1999-NMCA-113, ¶ 6.

Retaliatory Arrest—Count IV

{35} Count IV of Plaintiff’s complaint alleges that he was arrested in retaliation for his

speech, which is protected by the First Amendment to the United States Constitution3. U.S.

Const. amend. I. The district court found that “Plaintiff’s speech consisted of personal

epithets that were ‘fighting words’ rather than protected speech under the First Amendment.”

It also stated that

differing standards [in United States Supreme Court cases] make clear that the Fourth

Amendment provides greater protection to plaintiffs on claims of excessive force than does

the Eighth Amendment.” 2009-NMCA-066, ¶ 20 n.1. It then applied Fourth Amendment

principles in analysis of the plaintiff’s claim. Id. Thus the holding in Griffin is applicable

here.

3

Plaintiff alleged both retaliatory arrest and retaliatory prosecution in his complaint.

The Supreme Court of the United States has distinguished between retaliatory arrest and

retaliatory prosecution. See Reichle v. Howards, 132 S. Ct. 2088, 2094-95 (2012) (discussing

Hartman v. Moore, 547 U.S. 250, 265 (2006), and holding that the holding in Hartman

pertaining to retaliatory prosecution may not extend to retaliatory arrests). Because neither

Defendants’ motion to dismiss nor the district court’s order addressed the retaliatory

prosecution claim, we also do not address it.

14

As Defendants had probable cause to arrest . . . Plaintiff [for] leaving the

3

scene of an accident pursuant to [Section] 66-7-201(D) . . . , Plaintiff could

not show that his arrest was in retaliation for his speech. Regardless, as set

forth above, Plaintiff’s speech was not protected . . . under the First

Amendment.

We first address whether Plaintiff’s speech constituted “fighting words” unprotected by the

First Amendment.

{36} In 1942, the United States Supreme Court defined “ ‘fighting’ words [as] those which

by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

Chaplinsky v. N.H., 315 U.S. 568, 572 (1942). This definition was refined in 1971 as “those

personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter

of common knowledge, inherently likely to provoke violent reaction.” Cohen v. Cal., 403

U.S. 15, 20 (1971). But both the United States Supreme Court and New Mexico courts have

recognized that police officers are not ordinary citizens. In City of Hous., Tex. v. Hill, 482

U.S. 451, 462 (1987), the United States Supreme Court recognized that “even the ‘fighting

words’ exception recognized in Chaplinsky . . . might require a narrower application in cases

involving words addressed to a police officer, because ‘a properly trained officer may

reasonably be expected to ‘exercise a higher degree of restraint’ than the average citizen, and

thus be less likely to respond belligerently to ‘fighting words.’ ” (quoting Lewis v. City of

New Orleans, 415 U.S. 130, 135 (1974) (Powell, J., concurring) (quoting his concurrence

in Lewis v. City of New Orleans, 408 U.S. 913 (1972)). Similarly, in City of Alamogordo v.

Ohlrich, 1981-NMCA-028, ¶¶ 2, 5, 95 N.M. 725, 625 P.2d 1242, where the defendant called

the police officer a “mother fucking son-of-a-bitch,” this Court stated, “A trained police

officer is not an average person.” Finally, in State v. Wade, 1983-NMCA-084, ¶ 17, 100

N.M. 152, 667 P.2d 459, “[t]he defendant was upset at what he thought was an unwelcomed

intrusion into a family argument [by police officers]. He screamed obscenities, waved his

arms, and yelled at the officers to ‘get the hell out of the house.’ ” This Court held that

“[s]creaming obscenities and yelling ‘get the hell out of the house’ do not amount to

‘fighting’ words, particularly when they are addressed to police officers, who are supposed

to exercise restraint.” Id. We conclude that the district court erred in finding that Plaintiff’s

speech fell within the “fighting words” exception to the First Amendment.

{37) Having concluded that Plaintiff’s speech was protected, we turn next to whether the

district court properly dismissed this claim on the ground that the arrest was supported by

probable cause. Plaintiff alleged that his arrest was based on improper motives. We have

already concluded that Defendants had probable cause to arrest Plaintiff. Thus, we agree

with this portion of the district court’s order. Where we depart from the district court is on

its conclusion that the existence of probable cause automatically precludes a claim for

retaliatory arrest. We explain.

{38} In 2006, the United States Supreme Court decided Hartman, holding that a plaintiff

must plead and prove an absence of probable cause for prosecution in order to prevail on a

15

retaliatory prosecution claim. 547 U.S. at 265. After Hartman, the courts were divided on

whether its holding applied to both retaliatory prosecution and retaliatory arrest claims.

Reichle, 132 S. Ct. at 2096 (listing cases); John Koerner, Between Healthy and Hartman:

Probable Cause in Retaliatory Arrest Cases, 109 Colum. L. Rev. 755, 775 (2009) (observing

in 2009 that “[r]etaliatory arrest case law is a mess, with some courts siding entirely with

Hartman, others rejecting Hartman outright, and still others having yet to take a position.”).

The Tenth Circuit’s case law before Hartman had held that “a First Amendment retaliation

claim[ant] in this circuit was not required to show that the defendants lacked probable cause

for their actions.” Howards v. McLaughlin, 634 F.3d 1131, 1146 (10th Cir. 2011) (citing

DeLoach v. Bevers, 922 F.2d 618, 620 (10th Cir. 1990), rev’d and remanded sub nom.

Reichle, 132 S. Ct. 2088). In Howards, the Tenth Circuit held that because the focus in

Hartman was on retaliatory prosecution, rather than retaliatory arrest, this holding was

undisturbed. Id. at 1148. Consequently, it “decline[d] to extend Hartman’s ‘no-probable-

cause’ requirement to [a] retaliatory arrest case” and “permit[ted] Mr. Howards to proceed

with his First Amendment retaliation claim notwithstanding probable cause existed for his

arrest.” Id. at 1148-49.

{39} The United States Supreme Court granted certiorari on two questions: “whether a

First Amendment retaliatory arrest claim may lie despite the presence of probable cause to

support the arrest, and whether clearly established law at the time of Mr. Howards’ arrest so

held.” Reichle, 132 S. Ct. at 2093. Recognizing that the defendants would be entitled to

qualified immunity if it answered either question in the negative, the Court examined the

state of the law on retaliatory arrest in the wake of Hartman. Reichle, 132 S. Ct. at 2093. The

Court began by stating that “[t]o be clearly established, a right must be sufficiently clear that

every reasonable official would have understood that what he is doing violates that right. In

other words, existing precedent must have placed the statutory or constitutional question

beyond debate.” Id. (alteration, internal quotation marks, and citation omitted). Next, the

Court clarified that the specific right at issue was “not the general right to be free from

retaliation for one’s speech, but the more specific right to be free from a retaliatory arrest

that is otherwise supported by probable cause.” Id. at 2094.

{40} With this framework established, the Court stated that it had “never held that there

is such a right.” Id. It also stated that, “[a]ssuming arguendo that controlling Court of

Appeals’ authority could be a dispositive source of clearly established law,” id., Tenth

Circuit precedent also did not constitute clearly established law on this issue because

“Hartman injected uncertainty into the law governing retaliatory arrests, particularly in light

of Hartman’s rationale and the close relationship between retaliatory arrest and prosecution

claims.” Id. at 2096-97. Stating that “[a] reasonable official also could have interpreted

Hartman’s rationale to apply to retaliatory arrests[,]” id. at 2095, the Court held that “when

Howards was arrested it was not clearly established that an arrest supported by probable

cause could give rise to a First Amendment violation.” Id. at 2097. Since the law was not

clearly established, the defendants were entitled to qualified immunity and the lower court’s

decision was reversed. Id.

16

{41} Reichle controls our analysis here. In that case, the arrest took place in 2006 and the

opinion was filed in 2012. Id. at 2091. Here, Plaintiff was arrested in August, 2010. There

is no indication that the law as to this issue was any more clear on that date than it was in

2006. Indeed, two Tenth Circuit cases addressing arrests in 2009 and 2010 have relied on

Reichle to hold that the defendants were entitled to qualified immunity because it was still

unclear at that time whether a retaliatory arrest claim could lie in the presence of probable

cause. See Wilson v. Vill. of Los Lunas, 572 F. App’x 635, 643 (10th Cir. 2014)

(unpublished) (“Reichle therefore compels the conclusion that the law as to First

Amendment retaliatory arrest in the presence of probable cause was no more clearly

established in July 2009 . . . than it was in June 2006.”); Moral v. Hagen, 553 F. App’x 839,

840 (10th Cir. 2014) (unpublished) (addressing a 2010 arrest and stating that it “remains

unsettled under current law whether an officer violates the Fourth Amendment by initiating

an arrest for retaliatory reasons when the arrest itself happens to be supported, as an

objective matter, by probable cause”); Moral v. Hagen, No. Civ.A. 10-2595-KHV, 2013 WL

1660484, at *6 (D. Kan. Apr. 17, 2013) (stating that the arrest was in January 2010), aff’d,

553 F. App’x 839 (10th Cir. 2014)). But see Storey v. Taylor, 696 F.3d 987, 997 (10th Cir.

2012).

{42} We conclude that, because it was not clear at the time that Plaintiff was arrested

whether a claim for retaliatory arrest would lie when probable cause supported the arrest,

Defendants are entitled to qualified immunity on this claim. We therefore affirm the district

court’s grant of summary judgment as to Plaintiff’s First Amendment/retaliatory arrest claim,

although on a different basis.

III. Conclusion

{43} We affirm the district court’s order as to Counts I, IV, V, VI, VII, and parts of Counts

II and VIII. We reverse the district court as to the portion of Counts II and VIII pertaining

to assault on the motor home driver because, based on the undisputed facts, there was no

probable cause to charge Plaintiff for assault. Because there is a genuine issue of material

fact as to whether there was probable cause to charge Plaintiff with resisting arrest, we

reverse the grant of summary judgment on that portion of Counts II and VIII as well. Finally,

we reverse the district court’s grant of summary judgment as to Plaintiff’s excessive force

claims in Counts III and VI.

{44} IT IS SO ORDERED.

____________________________________

MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

____________________________________

MICHAEL E. VIGIL, Chief Judge

17

____________________________________

J. MILES HANISEE, Judge

18