# J.H. ex rel. J.P. v. Bernalillo County

> District Court, D. New Mexico · November 19, 2014 · 61 F. Supp. 3d 1085

URL: https://www.frixlaw.com/law-library/cases/7227960

## Case

- **Full name:** J.H., on behalf of her minor child, J.P. v. BERNALILLO COUNTY, and J.M. Sharkey, Bernalillo County Deputy
- **Court:** District Court, D. New Mexico
- **Decided:** November 19, 2014
- **Citations:** 61 F. Supp. 3d 1085; 2014 U.S. Dist. LEXIS 164784; 2014 WL 6612060
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Jamesbrowning
- **Judges:** Browning, James
- **Cited by:** 1 later opinions in the Frix Law Library

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## Opinion text

UNSEALED MEMORANDUM OPINION
1
JAMES 0. BROWNING, District Judge.
THIS MATTER comes before the Court on Defendant J.M. Sharkey’s Motion for Partial Summary Judgment No. I: Dismissal of Plaintiffs’ Fourth Amendment Illegal Seizure Claim (Count I) Based on Qualified Immunity, filed July 30, 2013 (Doc. 92) (“MSJ No. 1”). The Court held a hearing on September 6, 2013. The primary issue is whether the Court should grant summary judgment on the claim of Plaintiffs J.H., on behalf of her minor child, J.P., that Defendant J.M.. Sharkey violated the rights of J.P., an eleven-year-old girl, under the Fourth Amendment to the Constitution of the United States of America when he arrested her, handcuffed her, and transported her to the juvenile detention center following an altercation at Roosevelt Elementary School in Bernalillo County, New Mexico. The Court will grant the MSJ No. 1. Sharkey did not violate J.P.’s Fourth Amendment right to be free from unlawful seizure when he arrested her. Given J.P.’s recent attack on a student and on a school employee, Sharkey had probable cause to do so. Sharkey’s decision to transport J.P. to the juvenile detention center similarly did not violate any right that the Fourth Amendment secures. Moreover, even if Sharkey violated J.P.’s Fourth Amendment rights *1094 by either arresting her or transporting her to the juvenile detention center^ such rights were not clearly established. Accordingly, Sharkey is entitled to qualified immunity, and the Court will grant summary judgment as to the Plaintiffs’ Fourth Amendment unlawful seizure claim.
FACTUAL BACKGROUND
The Court will discuss the factual background in multiple parts. First, the Court needs to point out several formatting notes. Throughout their summary judgment briefing, the parties incorporated by reference most of the basic facts from MSJ No. 1, from the Plaintiffs Response to Defendant Sharkey’s Motion, for Partial Summary Judgment No. I: Plaintiffs Fourth Amendment Illegal Seizure Claim (Count I) Based on Qualified Immunity, filed August 16, 2013 (Doc. 103) (“Response to MSJ No. 1”), and from the Reply to Plaintiffs’ Response to J.M. Sharkey’s. Motion for Partial Summary Judgment No. I: Dismissal of Plaintiffs’ Fourth Amendment Illegal Seizure Claim (Count I) Based on Qualified Immunity, filed September 3, 2013 (Doc. 115) (“Reply to Response to MSJ No. 1”). The Court separated out the facts from the briefing on MSJ No. 1 from the facts in other motions. The Court has below included only the facts in MSJ No. 1. Those facts are substantially identical to those that the Court used in its Unsealed Memorandum Opinion, filed July 8, 2014 (Doc. 152), on pages two through fifty-four.
Confusion over the parties’ names plagues the briefing. Sometimes the parties — including the Plaintiffs — refer to J.H. on behalf of her minor child J.P. as a singular Plaintiff, see, e.g., Response to MSJ No. 1 at 1 (“Plaintiff, J.H. on behalf of J.P., a minor, hereby responds to” MSJ No. 1), and sometimes the parties refer to J.H. and J.P. as plural Plaintiffs, see, e.g., Plaintiffs’ Response to Defendants’ Motion for Partial Summary Judgment No. II: Dismissal of Counts II, V, and VI of Plaintiffs’ Second Amended Complaint at 2, filed August 16, 2013 (Doc. 102) (“Plaintiffs hereby respond to Defendants’ ‘undisputed’ numerical material facts.”). Given that even the Plaintiffs’ briefing does not clearly prefer one name over the other, the Court will refer to J.H., on behalf of her minor child, J.P., in the plural as Plaintiffs, because the caption refers to them in the plural. Where the Court quotes the briefings, however, it -will not change the parties’ naming conventions, because changing the parties’ naming conventions would confuse rather than enlighten the reader.
The facts proceed in seven parts. First, the Court provides background on J.P. Second, the Court discusses Sharkey’s background, his training, and his role at Roosevelt Middle School. Third, the Court discusses the procedure for handling a de-escalation event. Fourth, the Court discusses the September 26, 2011, events. Fifth, the Court discusses J.P.’s booking at the Bernalillo County Detention Center. Sixth, the Court discusses the arrest’s effects on J.P. Seventh, and finally, the Court discusses the charges against J.P., her competency evaluation,' and the circumstances surrounding the dropping of her charges.
1. Background on J.P.
“J.P. has qualified as emotionally disturbed since at least 2008.” Response to MSJ No. 1 at 9 (setting forth this fact). See Unidentified Report at 5-6 (taken July 19, 2013), filed August 16, 2013 (Doc. 103-1) (“Unidentified Report”). 2 According to John King, Ph. D., who diag *1095 nosed J.P. after the incident underlying this case, her present condition is such
[s]he doesn’t think about the consequences. And she just kind of reacts, instead of thinks about it. So if some other child upsets her, instead of being able to step back and think about and analyze the situation, she just reacts right away. And her reaction is with anger and aggression.
Deposition of John H. King, Ph. D. at 36:25-37:6 (taken July Depo. at 36:25-37:6), filed August 16, 2013 (Doc. 103-1) (“King Depo.”). See Neuropsychological Evaluation Report at 1 (dated April 5, 2012), filed September 3, 2013 (Doc. 115— l). 3
*1096 J.P. received special education services because “she has the eligibility of Emotional Disturbance. She has difficulty regulating her emotions. Her mood can vary from one minute to the next. At her best, she can be a very cooperative, helpful girl who is a natural leader. However, she also has had episodes of violent verbal and physical acting out towards other students and adults. More commonly, J[.P.] can also shut down and refuse to interact with anyone for hours at a time.”
MSJ No. 1 ¶ 1, at 4 (setting forth this fact). See Response to MSJ No. 1 ¶ 1, at 2 (not disputing this fact); Individualized Education Program at 3, dated October 19, 2010, filed July 30, 2013 (Doc. 91-1) (“IEP”).
J.P. “requires specific, direct 1:1 or small group instruction in the area of academics and social emotional issues to compensate for social emotional deficits.
This instruction cannot be appropriately or adequately addressed in the regular education setting because J[.PJ is unable to maintain her emotions in the larger group setting and impedes the learning of herself and other[s].”
MSJ No. 1 ¶ 2, at 5 (setting forth this fact). See Response to MSJ No. 1 ¶ 2, at 3 (not disputing this fact); IEP at 10. “J.P.’s IEP team also prepared a [Behavioral Intervention Plan (“BIP”) ] for J.P. because she exhibited frequent verbal and physical aggression towards fellow students and staff, and interventions were needed to redirect her behavior.” MSJ No. 1 ¶ 3, at 5 (setting forth this fact). See Response to MSJ No; 1 ¶ 3-7, at 3 (not disputing this fact) 4 ; Behavior Intervention Plan' (dated March 3, 2011), filed July 30, 2013 (Doc. 92-3) (“BIP”). “J.P.’s behavior had resulted in physical harm to both peers and staff.” MSJ No. 1 ¶ 4, at 5 (setting forth this fact). See Response to MSJ No. 1 *1097 ¶ 3-7, at 3 (not disputing this fact); 5 BIP at 1.
The BIP indicated that the following is the targeted behavior for J.P.: “J[.P.] will frequently lash out at peers and adults in the classroom. This behavior manifests as cussing, throwing objects and furniture with the intent to cause harm, as well as physical and verbal aggression to cause harm to peers and/or adults.”
MSJ No. 1 ¶ 5, at 5 (setting forth this fact). See Response to MSJ No. 1 ¶¶3-7, at 3 (not disputing this fact); 6 BIP at 1. “According to her BIP, J.P.’s behavior is a performance deficit, meaning she ‘knows how to perform the desired behavior, but does not consistently do so.’ ” MSJ No. 1 ¶ 6, at 5 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 3-7, at 3 (not disputing this fact); 7 BIP at 1. “The presumed reason for J.P.’s behavior was ‘task/consequence avoidance.’” MSJ No. 1 ¶ 7, at 5 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 3-7, at 3 (not disputing this fact); 8 BIP at 1.
J.P. was “categorized as emotionally disturbed for IEP purposes” at the time of the incident underlying this case. MSJ No. 1 ¶ 8 at 6 (setting forth unmodified version of this fact). See Response to MSJ No. 1 ¶ 8, at 3 (not disputing this portion of the fact). 9
According to the BIP, “In the event that J[.PJ physically harms a peer or adult (by direct contact or by throwing an object with the intent to harm)[,][t]he crisis team will be called. If necessary, appropriate physical management may be employed by trained personnel to ensure the safety of J[.P.] and/or other persons involved in the crisis situation. J[.P.]’s Mother will be called. Administration will determine if the need for APS Police or other law enforcement is necessary.”
MSJ No. 1 ¶ 9, at 6 (quoting BIP at 3) (setting forth this fact). See Response to MSJ No. 1 ¶ 9, at 3 (not disputing this fact). “The crisis intervention team is comprised of members of Roosevelt Middle *1098 School staff ‘that have been trained in deescalation’ and ‘are called in to any situation where a ... teacher or staff member needs assistance.’ ” MSJ No. 1 ¶ 10, at 6 (quoting Deposition of Cee Kaye Nation at 32:6-11 (taken June 14, 2013), filed July 30, 2013 (Doc. 92-2) (“Sharkey’s Nation Depo.”)) (setting forth this fact). See Response to MSJ No. 1 ¶ 10, at 8 (not disputing this fact). 10
2. Sharkey’s Background and Training; His Role at Roosevelt Middle School.
Prior to becoming a School Resource Officer [ (“SRO”) ] Defendant Sharkey was a field training officer for cadets and detectives, a fi[el]d investigator, a firearms instructor, a crisis intervention officer, a special weapons and tactics (SWAT) officer on the entry team, a sniper, a crisis negotiator, a property crimes detective, a narcotics detective, a FBI fugitive and gang task force detee-tive, a civil deputy assigned to serve domestic violence orders and civil summonses, and has been assigned to execute mental health pick-up orders.
Response to MSJ No. 1 ¶ V, at 13. See Reply to Response to MSJ No. 1 ¶ V-W, at 12 (not disputing this fact); Deposition of John Matthew Sharkey at 12:13-13:5 (taken July 30, 2013), filed August 16, 2013 (Docs. 103 — 4, 103-5, 103-6, & 103-7 (“Plaintiffs’ Sharkey Depo.”)). “Defendant Sharkey has had the opportunity to interact with several citizens who had mental health challenges throughout the course of his career. When dealing with citizens dealing with mental health challenges Defendant Sharkey seeks voluntary compliance through de-escalation techniques.” Response to MSJ No. 1 ¶ W, at 13 (citation omitted) (setting forth this fact). See Reply to Response to MSJ No. 1 ¶ V-W, at 12 (not disputing this fact); 11 Plaintiffs’ Sharkey Depo. at 13:13-15; id. at 14:7-12.
*1099 “Defendant Sharkey became a School Resource Officer because he wanted a ‘constructive, positive’ assignment where he could help people rather than targeting certain crimes.” Response to MSJ No. 1 ÍM, at 11 (quoting Plaintiffs’ Sharkey Depo. at 12:1-9) (setting forth this fact). See Reply to Response to MSJ No. 1 ¶ M, at 10-11 (not disputing this fact); Plaintiffs’ Sharkey Depo. at 19:10-20:2. Shar-key’s purpose is to keep his students safe and not to arrest his students; even so, on occasion, he gets involved in criminal investigations — for example, when the Children, Youth, and Families Department of the State of New Mexico (“CYFD”) contacts him, or when he must deal with those who. commit drug offenses or violent crimes — and he arrests students, particularly when an offense involves battery on students or staff, or a drug offense. See Response to MSJ No. 1 ¶ M, at 11 (setting forth this fact). See also Plaintiffs’ Shar-key Depo. at 19:10-20:2; id. at 28:1-5; Deposition of John Sharkey at 20:12-21:12 (taken July 30, 2013), filed September 3, 2013 (Doc. 115-3). 12 “In pursuance of this goal, Defendant Sharkey claims to take *1100 into consideration the struggles that the children he works with [face]” — at least when he is aware of those struggles. Response to MSJ No. 1 ¶ M, at 11 (setting forth unmodified version of this fact). See Plaintiffs’ Sharkey Depo. at 34:4-6. 13
“Deputy Sharkey was hired by the Ber-nalillo County Sheriffs Office on January 30, 1989. Deputy Sharkey retired in March 2007. After being retired for approximately two years, Deputy Sharkey was rehired by the Bernalillo County Sheriffs Office in September 2009.” MSJ No. 1 ¶ 11, at 6 (setting forth these facts). See Response to MSJ No. 1 ¶¶ 11-12, at-3 (not disputing these facts); Affidavit of John M. Sharkey ¶¶ 1-3, at 1 (executed July 30, 2013), filed July 30, 2013 (Doc. 92-4) (“Sharkey Aff”). “For the 2011-2012 school year, Deputy Sharkey was assigned to be the school resource officer at Roosevelt Middle School.” MSJ No. 1 ¶ 12, at 6 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 11-12, at 3 (not disputing this fact); Sharkey Aff. ¶ 4, at 3.
“Deputy Sharkey did not have access to J.P.’s special education files.” MSJ No. 1 ¶ 13, at 6 (setting forth this fact). See Response to MSJ No. 1 ¶ 13, at 4 (not disputing this fact); Sharkey’s Nation Depo. at 25:13-16; id. at 26:56-28:34. 14 *1101 “Deputy Sharkey was not part of Roosevelt Middle School’s crisis intervention team,” although he was generally aware when someone calls the team, and has witnessed the crisis team in action. MSJ No. 1 ¶ 14, at 6 (setting forth unmodi-fled version of this fact). See Response to MSJ No. 1 ¶ 14, at 3 (not disputing this fact); 15 Sharkey’s Nation Depo. 32:3-4; Sharkey Aff. ¶ 21, at 3. Moreover, “Shar-key has personally seen the school’s Crisis Intervention Team deescalate students in *1102 volved in screaming, yelling, and throwing desks around.” Response to MSJ No. 1 ¶?, at 12 (setting forth this fact). See Reply to Response to MSJ No. 1 ¶ P, at 11 (not disputing this fact); Plaintiffs’ Shar-key Depo. at 64:6-24. At the time of the event, “Deputy Sharkey’s main responsibility as a school resource officer at Roosevelt Middle School was to help keep the campus safe.” MSJ No. 1 ¶ 15, at 7 (setting forth unmodified version of this fact). See Sharkey’s Nation Depo. at 26:25-27:9; Sharkey Aff. ¶ 16, at 3. 16 “Deputy Sharkey is ‘always extremely calm’[ and] ‘never raises his voice.’ ” MSJ No. 1 ¶ 16,, at 7 (setting forth unmodified version of this fact) (quoting Sharkey’s Nation Depo. at 29:8-16). See Response to MSJ No. 1 ¶ 16, at 5 (not disputing this portion of the fact). 17
“Defendant Sharkey ‘get[s] to know the students very, very well, because [he] know[s] them from elementary school all the way until they get ... to middle school.’ ” Response to MSJ No. 1 ¶ N, at 11 (setting forth unmodified version of this fact) (quoting Plaintiffs’ Sharkey Depo. at *1103 74:12-15). 18 Sharkey gets to know his students and, sometimes, sees what their struggles are, and takes those struggles of which he knows into account when he interacts with them. See Plaintiffs’ Sharkey Depo. at 34:4-6. 19 Sharkey likes his students and cares about his students very much; he does not want to arrest them and does not take that decision lightly. See Response to MSJ No. 1 ¶ N, at 11 (setting forth a similar fact); Plaintiffs’ Sharkey Depo. at 74:23-25. 20
“Defendant Sharkey ... knows that there are different teachers associated with different special education challenges,” and knows that certain teachers, including Gonzales, who have special education students. Response to MSJ No. 1 ¶ 0, at 11-12 (setting forth unmodified version of this fact). See Plaintiffs’ Sharkey Depo. at 62:24-63:10. 21 Sharkey did not know, however, whether J.P. had a disability within the ADA’s meaning before he arrested her; further, he had no reason to find out whether she had a disability, because whether a person that he is investigating has a disability plays no role in his investigation or in his decision to arrest that person. See Response to MSJ No. 1 ¶ R, at 12 (setting forth a similar fact); Plaintiffs’ Sharkey Depo. at 7:5-21. 22 *1104 Sharkey was aware, or should have been aware, that J.P. suffered from some educational and behavioral limitations; he did not, however, know or have reason to know that she was disabled within the ADA’s definition of that term, or that any disability which she had would deprive her of the capacity to form general criminal intent. See Plaintiffs’ Sharkey Depo. at 33:24-34:15 (“I get to know my students, and sometimes I’ll see what their struggles are.”); Plaintiffs’ Sharkey Depo. at 62:24-63:5 (“Ms. Gonzales, she has special stu-dents_[S]he has special classes.”); Deposition of John Sharkey at 75:9-12 (taken July 30, 2013), filed September 3, 2013 (Doc. 115-2) (“Sharkey Depo. Vol. Ill”) (“And her mom and her boyfriend arrived on scene, and mom was of the opinion of, “You can’t do this, you can’t even be here;’ that there’s a plan, and they have to handle the plan.”). 23
“Defendant Sharkey [was] trained in the Americans with Disabilities Act when he was trained to become a School Resource Officer in 2010.” Response to MSJ No. 1 ¶ S, at 12 (setting forth this fact). See Reply to Response to MSJ No. 1 ¶¶ S-T, at 12 (not disputing this fact); Plaintiffs’ Sharkey Depo. at 7:22-8:6. “Defendant Sharkey knows ‘that there are certain accommodations that are made for students that have a disability.’ ” Response to MSJ No. 1 ¶ T, at 12 (setting forth this fact) (quoting Plaintiffs’ Sharkey Depo. at 8:10-13). See Reply to Response to MSJ No. 1 ¶¶ S-T, at 12 (not disputing this fact). 24 *1105 Sharkey has been trained as follows: “If I remember correctly it was discussed as to we will have students that we interact with who have disabilities, whether it’s a learning disability or behavioral disabilities, challenges that young people have that go to school and to realize that not every student would be the same.” Plaintiffs’ Sharkey Depo. at 9:2-12. See Response to MSJ No. 1 ¶ U, at 12 (setting forth similar facts); Reply to Response to MSJ No. 1 ¶ U, at 12 (not disputing this fact). 25 “Defendant Sharkey was a Crisis Intervention Officer and has been trained in de-escalation techniques” in general, though not in de-escalation techniques as they relate to special needs or students with mental-health issues. Response to MSJ No. 1 ¶ U, at 12-13 (setting forth unmodified version of these facts). See Plaintiffs’ Sharkey Depo. at 10:20-11:22. 26 “Defendant Sharkey has never been trained on the possible psychological effects on children being restrained.” Response to MSJ No. 1 ¶ EE, at 14 (setting forth this fact). See Reply to Response to MSJ No. 1 ¶ EE, at 14 (not disputing this fact); Plaintiffs’ Sharkey Depo. at 71:24-72:4. 27
During his deposition, “Defendant Shar-key agreed that there’s always a question of whether a child has the ability to form criminal intent.” Response to MSJ No. 1 ¶ CC, at 14 (setting forth this fact). See Plaintiffs’ Sharkey Depo. at 59:ll-23. 28 “Defendant Sharkey determined that J.P., an emotionally disturbed eleven-year-old child, had the requisite criminal intent to commit the crime of [b]attery.” Response to MSJ No. 1 ¶ DD, at 14 (setting forth this fact). See Plaintiffs’ Sharkey Depo. at 56:2-57:20. 29
*1106 Defendant Sharkey has no knowledge of whether a child he arrests will be housed at the Juvenile Detention Center and is not fully aware of the booking process for juveniles or how a risk assessment is employed to determine whether a child is subject to custody. Defendant Sharkey believes that taking a child to the detention center, even if they will not be housed there, is appropriate because it accomplishes the purpose of stopping law breaking behavior. According to Defendant Sharkey, if a child is “at the detention center, then they’re — it’s controlled.”
Response to MSJ No. 1 ¶¥, at 13 (setting forth this fact) (citations omitted). See Reply to Response to MSJ No. 1 ¶ Y, at 13 (not disputing this fact); Plaintiffs’ Shar-key Depo. at 42:24:44:10. 30 “Defendant Sharkey proffered that even if law-enforcement purposes are fulfilled by direct release to a child’s parent, transporting a child to the Detention Center is appropriate because a child’s angry parent could pose a threat to the safety of the school or *1107 its personnel.” Response to MSJ No. 1 ¶66, at 14 (setting forth this fact). See Plaintiffs’ Sharkey Depo. at 50:11 — 52:5. 31
3. Procedure for Handling a De-Es-calation Event.
“A de-escalation event usually involves a student who is being aggressive.” MSJ No. 1 ¶ 17, at 7 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 17-21, at 5 (not disputing this fact); Sharkey’s Nation Depo. at 62:3-10. “At Roosevelt Middle School, when a special education classroom calls the office via intercom [or on the office telephone] requesting assistance from the crisis intervention team, office staff contacts the principal ‘or the admin’ on the walkie-talkie.” MSJ No. 1 ¶ 18, at 7 (setting forth this fact) (quoting Sharkey Nation Depo. at 34:21-35:3). Response to MSJ No. 1 ¶¶ 17-21, at 5 (not disputing this fact). 32 “Deputy Sharkey also has a walkie-talkie so when a call goes out for the crisis intervention team, he hears it as well and responds to the area.” MSJ No. 1 ¶ 19, at 17 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 17-21, at 5 (not disputing this fact); Sharkey’s Nation Depo. at 35:11-18; Sharkey Aff. ¶ 18, at 3. “Deputy Sharkey allows the crisis intervention team ‘to do what they need to do’ and ‘he’s there if it escalates to a point where [the team] can’t contain it.’ ” MSJ No. 1 ¶20, at 7 (setting forth this fact) (quoting Sharkey’s Nation Depo. at 35:11— 18). See Response to MSJ No. 1 ¶¶ 17-21, at 5 (not disputing this fact); Sharkey Aff. ¶¶ 22-25, at 3. “It is a safe practice to have Deputy Sharkey close at hand because a situation can get out of hand very quickly.” MSJ No. 1 ¶ 21, at 7 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 17-21, at 5 (not disputing this fact); Sharkey’s Nation Depo. at 61:12-62:2; Sharkey Aff. ¶23, at 3. “Deputy Sharkey is generally expected to take immediate control of the situation if he arrives on scene first and sees somebody being struck, in danger of being battered, or a situation quickly escalating.” MSJ No. 1 ¶ 22, at 8 (setting forth this fact). See Sharkey’s Nation Depo. at 36:15-19; Sharkey Aff. ¶¶ 25-26, at 3. 33
*1108 4. The Incident on September 26, 2011.
“In the fall of 2011, J.P. was placed in Ms. Allison Gonzales’s sixth grade special education class at Roosevelt Middle School.” MSJ No. 1 ¶ 23, at 8 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 23-26, at 8 (not disputing this fact); Plaintiffs’ Second Amended Complaint for Recovery of Damages due to Deprivation of Civil Rights and Rights Under the Americans with Disabilities Act, ¶ 5, at 1, filed June 28, 2013 (Doc. 85) (“Complaint”); id. ¶ 25, at 4. “Ms. Gonzales was employed as a teacher with the Albuquerque Public Schools.” MSJ No. 1 ¶ 24, at 8 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 23-26, at 8 (not disputing this fact); Deposition of Allison Gonzales at 13:6-17 (taken June 13, 2013), filed July 30, 2013 (Doc. 92-5) (“Sharkey’s Gonzales Depo.”); Complaint ¶ 5, at 1; id ¶ 25, at 4. “There were [sic] a total of seven (7) students in Ms. Gonzales’s class, including J.P.” MSJ No. 1 ¶ 25, at 8 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 23-26, at 8 (not disputing this fact); Sharkey’s Gonzales Depo. at 14:20-22. “Ms. Gonzales also had a teaching assistant, Gwendoline Zamora.” MSJ No. 1 ¶ 26, at 8 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 23-26, at 8 (not disputing this fact); Sharkey’s Gonzales Depo. at 17:22-18:3. “Deputy Sharkey was aware that J.P. was assigned to a class that provided special education services, but he was not aware of the reason for her placement in that class as children receive special education services for a variety of reasons.” MSJ No. 1 ¶27, at 8 (setting forth this fact). See Sharkey Aff. ¶ 8, at 2. 34
*1109 “On September 26, 2011, J.P. was disrupting the classroom after arriving late to school.” MSJ No. 1 ¶ 28, at 9 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); 35 Statement by Allison Gonzales at 2 (dated September 26, 2011), filed July 30, 2013 (Doc. 92-6); Sharkey’s Gonzales Depo. at 54:19-56:13. “When asked to participate in the lesson she responded, ‘I’m not doing shit.’ ” MSJ No. 1 ¶ 29, at 9 (setting forth this fact) (quoting Statement by Allison Gonzales at 2). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact). 36 “J.P. then began to disrupt the class by loudly tapping a metal type marble.” MSJ No. 1 ¶ 30, at 9 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); 37 Sharkey’s Gonzales Depo. at 55:19-56:19. “J.P. ignored repeated requests from Ms. Gonzales and peers to stop bouncing the marble.” MSJ No. 1 ¶ 31, at 9 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Sharkey’s Gonzales Depo. at 55:19-56:19; id. at 58:19-59:11. 38 “Ms. Zamora asked J.P. if she wanted some help and she said, ‘no.’ ” MSJ No. 1 ¶ 32, at 9 (setting forth this fact) (quoting Statement of Allison Gonzales at 2). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact). 39 “Ms. Gonzales then asked J.P. if she wanted to talk to her mom or maybe her mom could come back to school in an effort to ‘change the environment, change the action, that might be a support as well.’” MSJ No. 1 ¶ 33, at 9 (setting forth this fact) (quoting Sharkey’s Gonzales Depo. at 60:13-19). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Statement of Allison Gonzales at 2. 40 “J.P. responded that her mother was at work and could not come to the school.” MSJ No. 1 ¶34, at 9 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); 41 Statement of Allison Gonzales at 2. “J.P. then called *1110 another [sic] male student a ‘butt head’ which elicited a response from him, and they exchanged words.” MSJ No. 1 ¶ 35, at 9 (setting forth this fact) (quoting Statement of Allison Gonzales at 2). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Sharkey’s Gonzales Depo. at 55:19-56:19. 42 “The other student then returned to his seat to work with Ms. Gonzales.” MSJ No. 1 ¶36, at 9 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28^42, at 6 (not disputing this fact); Statement of Allison Gonzales at 2. 43
“J.P. could not see her peers from her study carrel, so no eye contact took place from the time the other student took his seat.” MSJ No. 1 ¶ 37, at 10 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); 44 Statement of Allison Gonzales at 2; Shar-key’s Gonzales Depo. at 61:23-62:11. “J.P. then came around her study carrel and forcefully threw the metal marble across the room where it hit the wall hard, bounced back and rolled to the other side of the classroom.” MSJ No. 1 ¶ 38, at 10 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Statement of Allison Gonzales at 2; Sharkey’s Gonzales Depo. at 55:19-56.T9. 45 “J.P. then punched the other student in the back of the head with her fist.” MSJ No. 1 ¶ 39, at 10 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Statement of Allison Gonzales at 2; Sharkey’s Gonzales Depo. at 55:19-56:9; id. at 63:8-19. 46
“Ms. Gonzales stood up and placed her body between both students to stop the altercation.” MSJ No. 1 ¶ 40, at 10 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Statement of Allison Gonzales at 2; Sharkey’s Gonzales Depo. at 55:19-57:4; id. at 63:20-23. 47 “As J.P. attempted to strike the male student again, Ms. Gonzales moved J.P. toward the side of the room and immediately instructed the male student to leave the classroom.” MSJ No. 1 ¶ 41, at 10 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Statement of Allison Gonzales at 2; Sharkey’s Gonzales Depo. at 55:19-57:4. 48 “Ms. Gonzales directed Ms. Zamora to call the office on the intercom to request assistance from the crisis intervention team.” MSJ No. 1 ¶ 42, at 10 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Statement of Allison Gonzales at 2; Sharkey’s Gonzales Depo. at 65: 1-11. 49
“A staff member from the Roosevelt Middle School administrative office requested that Deputy Sharkey respond to classroom # 11 in response to an unknown request by Ms. Gonzales.” MSJ No. 1 ¶ 43, at 10 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 43 -44, at 6 (not disputing this fact); Sharkey Aff. ¶ 27, at *1111 4. 50 “The administrative staff person was unable to explain to Deputy Sharkey why he was needed.” MSJ No. 1 ¶ 44, at 10 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 43-44, at 6 (not disputing this fact). 51
“Back in the classroom, the male student may have made eye contact with J.P. when he was walking out as instructed by Ms. Gonzales though this is not certain.” MSJ No. 1 ¶ 45, at 10-11 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 45-47, at 6 (not disputing this fact); Sharkey’s Gonzales Depo. at 55:19-57:4. “Ms. Gonzales had a hold of J.P.’s arms just above the wri[s]ts.” MSJ No. 1 ¶ 46, at 11 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 45-47, at 6 (not disputing this fact); Sharkey’s Gonzales Depo. at' 66:6-18. “Ms. Gonzales did not think it would be a good plan for her to put J.P. in a body hold because J.P. is ‘a fairly good-sized girl.’” MSJ No. 1 ¶47, at 11 (setting forth this fact) (quoting Sharkey’s Gonzales Depo. at 47:65-66:50). See Response to MSJ No. 1 ¶¶ 45-47, at 6 (not disputing this fact). “While Ms. Gonzales tried to hold her back, J.P. attempted to heád butt, hit and bite Ms. Gonzales” to free herself from Gonzales’ hold. MSJ No. 1 ¶ 48, at 5 (setting forth unmodified version of this fact). See Response to MSJ No. 1 ¶ 48, at 6 (not disputing this portion of the fact); Statement of Allison Gonzales at 2; Shar-key’s Gonzales Depo. at 66:24-5. 52 “J.P. was eventually able to scratch Ms. Gonzales’ hand and drew blood.” MSJ No. 1 ¶49, at 11 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 49-50, at 6 (not disputing this fact); Sharkey’s Nation Depo. at 46:9-17; Sharkey’s Gonzales Depo. at 66:24-67:5; Statement of Allison Gonzales at 2. “J.P. was able to free her *1112 self from Ms. Gonzales’ hold.” MSJ No. 1 ¶ 50, at 11 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 49-50, at 6 (not disputing this fact); Sharkey’s Gonzales Depo. at 67:10-11. “J.P. ran at the other student, hitting him once again on the head.” MSJ No. 1 ¶51, at 11 (setting forth this fact). See Sharkey’s Gonzales Dt?po. at 67:12-68:5; Statement of Allison Gonzales at 2. 53 “As the other student exited the classroom, J.P. ran out [of] the classroom in pursuit of him.” MSJ No. 1 ¶52, at 11 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact); Sharkey’s Gonzales Depo. at 68:6-8; Statement of Allison Gonzales at 2.
“Ms. Zamora grabbed J.P. by her left arm and Ms. Gonzales grabbed her right arm.” MSJ No. 1 ¶ 53, at 11 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact); Statement of Allison Gonzales at 2. “While Ms. Gonzales and Ms. Zamora were attempting to restrain her, J.P. kicked Ms. Gonzales in the leg, leaving a footprint.” MSJ No. 1 ¶ 54, at 11 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact); Sharkey’s Gonzales Depo. at 68:16-17; Statement of Allison Gonzales at 2. “The incident was a rapidly evolving situation.” MSJ No. 1 ¶ 55, at 11 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact); Sharkey’s Gonzales Depo. at 57:13-15.
“As he approached the classroom on foot, Deputy Sharkey saw Ms. Gonzales holding J.P.” MSJ No. 1 ¶ 56, at 11 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact); Sharkey Aff. ¶29, at 4. “Deputy Sharkey heard raised voices and saw J.P. kick Ms. Gonzales in the right upper leg.” MSJ No. 1 ¶ 57, at 12 (setting forth this fact). See Sharkey Aff. ¶ 31, at 4; Shar-key’s Gonzales Depo. 71:2-6; Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact). “Other school personnel had not arrived.” MSJ No. 1 ¶ 58, at 12 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact); Sharkey Aff. ¶ 32, at 4; Sharkey’s Gonzales Depo. 69:4-6. 54
“Deputy Sharkey ordered J.P. to stop.” MSJ No. 1 ¶ 59, at 12 (setting forth this fact). See Sharkey Aff. ¶33, at 4; Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact). “When J.P. saw Deputy Sharkey coming around the corner, she immediately stopped kicking.” MSJ No. 1 ¶ 60, at 12 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact); Sharkey Aff. ¶ 34, at 4; Sharkey’s Gonzales Depo. at 69:18-21. “J.P. began moving away from Deputy Sharkey, taking Ms. Gonzales and Ms. Zamora with her as they were still trying to keep a hold on J.P.” MSJ No. 1 ¶ 61, at 12 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing *1113 this fact); Sharkey Aff. ¶ 35; Sharkey’s Gonzales Depo. at ^68:20-69:3. “Deputy Sharkey removed his handcuffs from his duty belt.” MSJ No. 1 ¶ 62, at 12 (setting forth this fact). See Sharkey Aff. ¶ 36; Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact). “J.P. re-entered Ms. Gonzales’s classroom.” MSJ No. 1 ¶ 63, at 12 (setting forth this fact); Sharkey Aff. ¶ 37, at 4, ¶ 37. See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact). “Ms. Zamora let go of J.P. and escorted the other students outside the classroom and remained with them.” MSJ No. 1 ¶ 64, at 12 (setting forth this fact). See Sharkey’s Gonzales Depo. at 70:6-8; Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact). “J.P. scooted herself into a small room without a door within the classroom, sat on the floor, and locked her hands together to resist being handcuffed.” MSJ No. 1 ¶ 65, at 12 (setting forth this- fact). See Sharkey Aff. ¶ 38, at 4; Sharkey’s Gonzales Depo. at 70:16-71:1; Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact). She remained in that room on the floor crying for approximately fifteen minutes before Sharkey handcuffed her. See Response to MSJ No. 1 ¶ Q, at 12 (setting forth a similar fact); Plaintiffs’ Sharkey Depo. at 5:3-16. 55
“Shortly thereafter, the principal and head special education teacher arrived at Ms. Gonzales’s classroom.” MSJ No. 1 ¶ 66, at 12 (setting forth this fact); Shar-key Aff. ¶ 39, at 4. See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact); Sharkey’s Gonzales Depo. at 70:16-71:1. “Deputy Sharkey’s demeanor toward J.P. was very calm and professional.” MSJ No. 1 ¶ 67, at 12 (setting forth this fact). See Sharkey Aff. ¶ 40, at 4; Shar-key’s Gonzales Depo. at 71:10-72:1. 56 *1114 “When Defendant Sharkey arrested J.P. he did not ask anyone present whether she had a disability, even though she was arrested in a special education classroom.” Response to MSJ No. 1 ¶ FF, at 14 (setting forth this fact). See Reply to Response to MSJ No. 1 ¶¶ FF-GG, at 14 (not disputing this fact); Plaintiffs’ Sharkey Depo. at 76:22-77:2. 57
“Deputy Sharkey became concerned that J.P. might resist if he forcibly attempted ■ to handcuff her by himself.” MSJ No. 1 ¶ 68, at 12-13 (setting forth this fact). See Responsé to MSJ No. 1 ¶¶ 68-74, at 7 (not disputing this fact); Sharkey Aff. ¶ 41, at 4-5. “Deputy Sharkey therefore requested an additional deputy be dispatched to the scene because he believed two deputies would be better able to quickly and safely control ... J.P. if she resisted.” MSJ No. 1 ¶ 69, at 13 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 68-74, at 7 (not disputing this fact); Sharkey Aff. ¶ 44, at 5. “While waiting for an additional deputy, Ms. Gonzales advised Deputy Sharkey about the events that occurred in the classroom involving J.P. pri- or to his arrival.” MSJ No. 1 ¶ 70, at 13 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 68-74, at 7 (not disputing *1115 this fact); Sharkey Aff. ¶ 45, at 5. “Ms. Gonzales then left the room to call J.P.’s mother and inform her of the incident.” MSJ No. 1 ¶ 71, at 13 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 68-74, at 7 (not disputing this fact); Sharkey’s Gonzales Depo. at 72:23-25; Sharkey Aff. ¶ 47, at 5. “The principal also attempted to contact J.P.’s mother.” MSJ No. 1 ¶ 72, at 13 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 68-74, at 7 (not disputing this fact); Sharkey’s Nation Depo. at 42:7-18. “When the other deputy arrived, Deputy Sharkey briefed him on the situation.” MSJ No. 1 ¶ 73, at 13 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 68-74, at 7 (not disputing this fact); Sharkey Aff. ¶ 48, at 5.
“Deputy Sharkey then informed J.P. she was under arrest and directed her to stand up.” , MSJ No. 1 ¶ 74, at 13 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 68-74, at 7 (not disputing this fact); Sharkey Aff. ¶ 47:18-48:8. “Deputy Shar-key told J.P., “You will stand up and do this calmly.’ ” MSJ No. 1 ¶ 75, at 13 (setting forth this fact) (quoting Sharkey’s Nation Depo. at 48:7-8). 58 “J.P. complied and Deputy Sharkey gently handcuffed her behind her back.” MSJ No. 1 ¶ 76, at 13 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 76-78, at 7 (not disputing these facts); Sharkey’s Nation Depo. at 48:3-8; id. 50:17-51:6; Sharkey Aff. ¶ 51, at 5. “The other deputy observed but did not intervene.” MSJ No. 1 ¶ 77, at 13 (setting forth this fact); Sharkey Aff. ¶ 53, at 4. See Response to MSJ No. 1 ¶¶ 76-78, at 7 (not disputing these facts); Sharkey’s Nation Depo. at 50:9-14. “Deputy Shar-key ensured that he double locked the handcuffs to prevent them from tightening and ensured that there was a thumb-width of space, or approximately one inch, between the handcuffs and J.P.’s wrist.” MSJ No. 1 ¶ 78, at 13 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 76-78, at 7 (not disputing this fact); Sharkey Aff. ¶ 54, at 5-6. “Deputy Sharkey determined that handcuffing J.P. was appropriate because of his concern that J.P. might attempt to strike him or others, and because he needed to secure J.P. to transport her to the Bernalillo County Juvenile Detention Center.” MSJ No. 1 ¶ 79, at 14 (setting forth this fact). See Sharkey Aff. ¶ 55, at 6 59 “Defendant Sharkey did not make an evaluation of whether J.P. needed mental healthcare prior to transporting her to the Juvenile Detention Center even *1116 though he admitted that J.P.’s behavior on the subject date was something that he had never seen.” Response to MSJ No. 1 ¶ GG, at 14 (setting forth this fact). See Reply to Response to MSJ No. 1 ¶¶ FF-GG, at 14 (not disputing this fact); 60 Plaintiffs’ Sharkey Depo. at 81:8-82:15.
“Deputy Sharkey calmly explained to J.P. that he would be walking her out to his patrol car.” MSJ No. 1 ¶ 80, at 14 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 80-82, at 7 (not disputing this fact); Sharkey’s Nation Depo. at 50:17-21; Sharkey Aff. ¶ 56, at 7. “Deputy Sharkey escorted J.P. from the class while school was in session in an effort to avoid embarrassing her in front of her peers or any other individuals who might be present between passing periods.” MSJ No. 1 *1117 ¶ 81, at 13. See Sharkey’s Nation Depo. at 51:21-52:7; Response to MSJ No. 1 ¶¶ 80-82, at 7 (not disputing this fact). “The principal followed Deputy Sharkey and J.P. out to his patrol car.” MSJ No. 1 ¶ 82, at 14 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 80-82, at 7 (not disputing this fact); Sharkey’s Depo. at 51:19-20. “There was nothing that happened on September 26, 2011 that would have indicated to the principal that law enforcement was not needed.” MSJ No. 1 ¶ 83, at 14 (setting forth this fact). 61 See Sharkey’s Nation Depo. at 59:11-15. “Deputy Sharkey left the school immediately to avoid interacting with J.P.’s mother as his past interaction had been unpleasant due to her mistaken belief that a BIP takes precedence over state law when a student or teacher is assaulted or battered.” MSJ No. 1 ¶ 84, at 14. See Response to MSJ No. 1 ¶ 84, at 7 (not disputing this fact); Sharkey Aff. ¶ 58, at 14. 62
*1118 5. J.P.’s Booking at the Bernalillo County Detention Center.
“Deputy Sharkey transported J.P. to the juvenile detention center in his patrol unit.” MSJ No. 1 ¶ 85, at 14 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 60, at 6. “On the way to the juvenile detention center, Deputy Sharkey asked J.P. what would happen if she assaulted another student or teaching staff at Roosevelt Middle School, and J.P. responded that she would be handcuffed and arrested again.” MSJ No. 1 ¶86, at 14 (setting forth these facts). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 61, at 6. “J.P. then volunteered that she would not hit anyone anymore but would use words when she was upset.” MSJ No. 1 ¶ 87, at 15 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 62, at 6. “J.P. did not give Deputy Sharkey any indication that the handcuffs were causing her pain.” MSJ No. 1 ¶ 88, at 15 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 63, at 6-7. “J.P. cleared the medical examination and was booked into the juvenile detention center without incident.” MSJ No. 1 ¶ 89, at 15 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 64, at 7. “Deputy ■ Sharkey charged J.P. only with battery upon a school employee in violation of N.M.S.A. (1978), § 30-3-9(E).” MSJ No. 1 ¶ 90, at 15 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 67, at 7; Statement of Probable Cause-Juvenile (dated September 26, 2011), filed July 30, 2013 (Doc. 92-7). “Deputy Sharkey submitted the incident report to the district attorney and juvenile probation office for review, ending his participat[ion] in the incident.” MSJ No. 1 ¶ 91, at 15 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 68, at 7.
“After booking J.P. into the juvenile detention center, Deputy Sharkey left J.P.’s mother a voice message on her personal cell phone informing her that J.P. had been arrested and was in custody.” MSJ No. 1 ¶ 92, at 15 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 69, at 7. “J.P.’s mother did not return Deputy Sharkey’s call.” MSJ No. 1 ¶ 93, at 7 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 70, at 7.
“The juvenile detention center released J.P. to her mother.” MSJ No. 1 ¶ 94, at 15 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey’s Nation Depo. at 68:4-9. “Deputy Sharkey did not make the determination as to whether the juvenile detention center would accept J.P. for housing or release her to her mother.” MSJ No. 1 ¶ 95, at 15 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 71, at 7. “Deputy Sharkey was not aware that the juvenile detention center *1119 was going to release J.P. to her mother instead of accept her for housing at the facility.” MSJ No. 1 ¶ 96, at 15 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 72, at 7. “The determination to release J.P. to her mother was made by a juvenile probation and parole officer with the Children, Youth and Families Division by conducting a detention risk assessment to determine whether J.P. posed a significant threat to herself, a significant threat to others, or posed a flight risk.” MSJ No. 1 ¶ 97, at 16 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); 63 Deposition of Jeannie Masterson at 57:8-14 (taken June 10, 2018), filed July 30, 2013 (Doc. 92-8) (“Masterson Depo.”); id. at 63:25-65:13; id. at 64:7-65:13; id. at 66:22-25; id. at 72:6-20. “The risk assessment guidelines do not indicate that a law enforcement officer or a probation and parole officer should consider a child's age and mental health status in determining whether a juvenile should be transported to or housed at the juvenile detention center.” MSJ No. 1 ¶ 98, at 16 (setting forth this fact). See Masterson Depo. 91:6-62:12. 64
*1120 6. J.P. Was Not Physically Injured as a Result of the Arrest, Hand- cuffiny, or TranspoH to the Juvenile Detention Center.
*1121 “J.P. was not physically injured as a result of the arrest, handcuffing, or transport to the Juvenile Detention Center.” MSJ No. 1 ¶ 100, at 16 (setting forth this fact). See Deposition of [J.H.] at 205:1-7 (taken July 17, 2013), filed July 30, 2013 (Doc. 92-9) (“Sharkey’s J.H. Depo.”). 65 “At most, J.P. had small red marks on the inside of her wrists from the handcuffs.” MSJ No. 1 ¶ 101, at 16 (setting forth this fact). See Sharkey’s J.H. Depo. at 202:11-25. 66 “There were no indentations on JJP.’s wrists.” MSJ No. 1 ¶ 102, at 17 (setting forth this fact). See Sharkey’s J.H. Depo. at 203:13-21. 67 “The small red marks on J.P.’s wrists faded away before that evening.” MSJ No. 1 ¶ 103, at 17. See Sharkey’s J.H. Depo. at 203:13-21. 68 “J.P. did not complain about any physical effects from the handcuffs.” MSJ No. 1 ¶ 104, at 17 (setting forth this fact). See Sharkey’s J.H. Depo. at 204.T7-25. 69 *1122 “J.P.’s mother did not take J.P. to the Doctor as a result of the handcuffing.” MSJ No. 1 ¶ 105, at 17 (setting forth this fact). See Sharkey’s J.H. Depo. at 204:6-9. 70 “Being arrested by a police officer at school is a significant” event for any child, and was traumatic for J.P. Response to MSJ No. 1 ¶ C, at 9 (setting forth unmodified version of this fact). See King Depo. at 10:24-11:5. 71
7. Charges Against J.P.; J.P.’s Competency Evaluation; Dismissal of Charges Against J.P.
Juvenile Probation and Parole Officer (“JPPO”) Angela Opperman completed a Preliminary Inquiry Determination for J.P., which indicated that “[a] Preliminary Inquiry has been completed regarding the above child. It is the recommendation of the undersigned JPPO that, pursuant to the Preliminary Inquiry, it has been determined that it is in the best interest of the child and the public that a petition be filed.”
MSJ No. 1 ¶ 106, at 17 (quoting Preliminary Inquiry Determination at 1 (dated October 25, 2011), filed July 30, 2013 (Doc. 92-10)). See Response to MSJ No. 1 ¶¶ 106-115, at 8 (not disputing these facts). “On January 26, 2012, Children’s Court Attorney Alesia Cappon filed a four count Petition, charging J.P. with the following crimes: Battery on School Personnel (Count I); Battery (County II); Interference with Educational Process (Count III); and Disorderly Conduct (Count IV).” MSJ No. 1 ¶ 107, at 17 (setting forth this' fact). See Petition at 1-2, filéd in state court in JR2012-0129 January 26, 2012, filed in federal court July 30, 2013 (Doc. 92-11). See Response to MSJ No. 1 ¶¶ 106-115, at 8 (not disputing these facts). “Deputy Sharkey did not prepare the Petition.” MSJ No. 1 ¶ 108, at 17. See Response to MSJ No. 1 ¶¶ 106-115, at 8 (not disputing these facts); Sharkey Aff. ¶¶ 74-75, at 8. “Deputy Sharkey did not make the decision to or have any role in adding the charges of battery, interference with educational process or disorderly conduct which were brought for the first time against J.P. in the Petition.” MSJ No. 1 ¶ 109, at 17-18 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 106-115, at *1123 8 (not disputing these facts); 72 Sharkey Aff. ¶ 76, at 8.
“During the pendency of the charges, J.P. underwent a competency evaluation.” MSJ No. 1 ¶ 110, at 18 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 106— 115, at 8 (not disputing this fact); Report of Evaluation for Adolescent/Children Competency Evaluation from Clinton E. Rhyne, Ph. D., to The Honorable Judge Zamora (dated March 20, 2012), filed July 30, 2013 (Doe. 92-12) (“Competency Evaluation”). “The psychologist who conducted the competency evaluation could only provide his ‘provisional’ ‘impressions’ of J.P. because she did not cooperate with the evaluation.” MSJ No. 1 ¶ 111, at 18 (setting forth this fact) (quoting Competency Evaluation at 4). See Response to MSJ No. 1 ¶¶ 106-115, at 8 (not disputing this fact). “The psychologist’s provisional impressions were ‘anxiety disorder NOS’ and ‘oppositional defiant disorder.’” MSJ No. 1 ¶ 112, at 18 (setting forth this fact) (quoting Competency Evaluation at 4) (emphasis in MSJ No. 1). See Response to MSJ No. 1 ¶¶ 106-115, at 8 (not disputing this fact). “The psychologist further stated that J.P.’s ‘mute posture and complete refusal to engage the examiner is suggestive of developmental immaturity combined with underlying mental health issues that cannot be adequately assessed under the current circumstances.[’]” MSJ No. 1 ¶ 113, at 18 (setting forth this fact) (quoting Competency Evaluation at 5) (emphasis in MSJ No. 1, but not in Competency Evaluation). See Response to MSJ No. 1 ¶¶ 106-115, at 8 (not disputing this fact).
The psychologist opined the following regarding J.P.’s competency to stand trial:
The results of the current evaluation ... did not result in sufficient information to render an opinion relative to her understanding of duties and functions of the various officers of the court or her appreciation of the various options that are available to her in her defense. Her understanding of the nature of the charges pending against her and her appreciation of the range of penalties that could be [ijmposed against her in the event of a guilty finding likewise could not be assessed. Her instant ability to effectively track courtroom proceedings, to assist counsel in her[ ] own defense, to effectively challenge witnesses against her, and to testify relevantly are felt to be compromised as of the date of this evaluation. Accordingly, it is felt that [J.P.] may not have a present sufficient understanding of the nature and significance of the instant proceedings and that she is presently unable to assist her attorney in a factual and rational manner. It is my opinion that [J.P.] is likely not presently competent to proceed in the matter of the instant charges. She is further not competent to enter into a plea bargain arrangement with the court.
MSJ No. 1 ¶ 114, at 18 (quoting Competency Evaluation at 5-6). See Response to MSJ No. 1 ¶¶ 106-115, at 8 (not disputing this fact). “The charges against J.P. were dismissed because the juvenile court found her incompetent to stand trial.” MSJ No. 1 ¶ 115, at 19 (setting forth this fact). See Amended Order Finding the Child Incompetent and Dismissal of the Charges Nunc Pro Tunc to May 2, 2012 at 1, filed in JR 2012-0129 May 21, 2012, filed in federal court July 30, 2013 (Doc. 92-13); Response *1124 to MSJ No. 1 ¶¶ 106-115, at 8 (not disputing this fact). 73
*1125
PROCEDURAL BACKGROUND
J.H., acting on J.P.’s behalf, commenced this lawsuit in New Mexico state court on December 5, 2011; Sharkey’s co-Defendants removed the case to federal court on February 9, 2012. See Notice of Removal (Doc. 1). On June 28, 2013, the Plaintiffs filed the Plaintiffs’ Second Amended Complaint for Recovery of Damages due to Deprivation of Civil Rights and Rights Under the Americans with Disabilities Act ¶ 48, at 6, filed June 28, 2013 (Doc. 85) (“Second Amended Complaint”). The Second Amended Complaint alleges, among other things, that Sharkey violated J.P.’s Fourth Amendment right to be free from unlawful seizure when he arrested her and transported her to a juvenile detention facility on September 26, 2011. See Second Amended Complaint passim.
1. MSJ No. 1.
Sharkey filed the MSJ No. 1 on July 30, 2013. See MSJ No. 1 at 1. In the MSJ No. 1, Sharkey asks the Court to grant summary judgment on Count I of the Second Amended Complaint, which alleges that Sharkey violated the Fourth Amendment by unlawfully seizing J.P. See MSJ No. 1 at 1. Sharkey argues that the Court should grant summary judgment on Count I for two reasons: (i) he lawfully arrested J.P.; and (ii) even if he unlawfully arrested J.P., it was not clearly established that his actions were unlawful. See MSJ No. 1 at 1, 20.
Sharkey argues that he lawfully arrested J.P., because he had probable cause to believe that she “had committed the fourth degree felony of battery on a school employee.” MSJ No. 1 at 20. Sharkey explains that probable cause exists “where the facts and circumstances within the arresting officer’s knowledge and of which they [sic] had reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to have the belief that the offense has been or is being committed by the person to be arrested.” MSJ No. 1 at 20 (quoting United States v. Alonso, 790 F.2d 1489, 1496 (10th Cir.1986)) (internal quotation marks omitted). Sharkey states that the crime of battery upon a school employee is “ ‘the unlawful, intentional touching or application of force to fhe person of a school employee while [he or she] is in the lawful discharge of [his or her] duties, when done in a rude, insolent or angry manner.’ ” MSJ No. 1 at 21-22 (alteration in Motion but not source) (quoting N.M. Stat. Ann. § 30-3-9 ). Sharkey contends that the following facts established probable cause that J.H. had committed battery on a school employee: (i) Gonzales was a “school employee” under N.M. Stat. Ann. § 30-3-9 (A)(2), because she was a teacher with the Albuquerque Public Schools when the incident occurred; (ii) after J.P. struck one of her classmates, Gonzales and Zamora tried .to restrain J.P. to prevent her from doing it again; (iii) while trying to *1126 get away from Gonzales and Zamora, J.P. scratched Gonzales’ hand, causing Gonzales to bleed, and then kicked Gonzales in the thigh; (iv) Sharkey witnessed J.P. kick Gonzales; (v) when J.P. saw Sharkey she immediately stopped kicking Gonzales and retreated to the classroom; and (vi) all of these events occurred during school hours while Gonzales was lawfully discharging her duties as a teacher. See MSJ No. 1 at 22.
Sharkey next addresses the Plaintiffs’ argument that he should not have arrested J.P., because J.P. “lacked the mental capacity to commit a delinquent act.” MSJ No. 1 at 24 (quoting the Second Amended Complaint ¶ 48, at 6). Sharkey explains that, when he arrested J.P., he knew that she was receiving special education services, but was not aware of her diminished mental .capacity. See MSJ No. 1 at 24 (citation omitted). Sharkey states that, “[e]ven assuming for purposes of this motion only that J.P. lacked the mental capacity to commit a delinquent act, it does not negate a finding of probable cause.” MSJ No. 1 at 24 (citation omitted). In support of this contention, Sharkey cites S.A.S. ex rel. W.S. v. Hibbing Public Schools, CIV. 04-3204 JRT/RLE, 2005 WL 2230415 (D.Minn. Sept. 13, 2005). See MSJ No. l’at 23. Sharkey points out that, in that case, officers arrested two disabled students for being disruptive in class and fighting with other students. See MSJ at 23 (citing S.A.S. ex rel. W.S. v. Hibbing Pub. Sch., 2005 WL 2230415 , at *3). Quoting from the opinion, which the' Honorable John R. Tunheim, United States District Judge for the District of Minnesota authored, Sharkey states: “[W]hile it is possible that S.A.S.’s disability might be considered in attempting to fashion an appropriate sentence ... that any of the officers may have known S.A.S. was disabled is not relevant to whether they appropriately determined that probable cause existed to bring criminal charges against S.A.S.” MSJ No. 1 at 23 (quoting S.A.S. ex rel. W.S. v. Hibbing Pub. Sch., 2005 WL 2230415 , at *3) (internal quotation marks omitted). Sharkey contends that it was reasonable for him to believe that J.P. had intentionally kicked Gonzales and knew that what she had done was wrong, because she immediately stopped kicking Gonzales and retreated to the classroom when she saw Sharkey. See MSJ No. 1 at 24.
Sharkey next turns to the Plaintiffs’ argument that he unlawfully arrested J.P., because he “ ‘knew or should have known that the juvenile detention center would not accept J.P. for housing.’ ” MSJ No. 1 at 24 (quoting Second Amended Complaint ¶ 51, at 6). Sharkey argues that “Plaintiffs’ assertions are factually erroneous and immaterial to a Fourth Amendment probable cause determination.” MSJ No. 1 at 24. Sharkey points out that the CYFD probation and parole officers, and not police officers, determine whether to accept a juvenile at the juvenile detention center. See MSJ No. 1 at 24-25. Sharkey argues, however, that, even if he knew or should have known that the detention center would not house J.P., there is no legal authority indicating that a detention facility’s decision not to house a suspect negates a probable cause finding. See MSJ No. 1 at 25.
Sharkey argues that, even if he unlawfully arrested J.P., he is entitled to qualified immunity, because it was not clearly established that his actions were unlawful. See MSJ No. 1 at 20, 26. Sharkey points out that, “to be clearly established, ‘the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” MSJ No. 1 at 26 (quoting Anderson v. Creighton, 483 U.S. 635, 640 , 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987)). *1127 Sharkey contends that the Plaintiffs cannot point to a Supreme Court or Tenth Circuit case “which states that an officer would lack probable cause for an arrest for battery on a school employee in these circumstances.” MSJ No. 1 at 26. To the contrary, Sharkey states, “authority from other jurisdictions establish[es] that there was in fact probable cause in similar factual circumstances.” MSJ No. 1 at 26 (citing Allen v. Elbert County, No. CIV 09-0066(CDL), 2010 WL 1257568 (M.D.Ga. Mar. 25, 2010) (holding that deputies had arguable probable cause to arrest eleven-year-old student for battery for getting into a fight with another student and hitting a teacher as he struggled to get free from her grasp)). Sharkey concludes his qualified immunity argument by stating that, “[bjecause it was not clearly established that [he] lacked probable cause to arrest J.P. for battery on a school employee under these circumstances, [he] is entitled to qualified immunity on Plaintiffs’ Fourth Amendment illegal seizure claim (Count I).” MSJ No. 1 at 26.
2. The Plaintiffs ’ Response.
The Plaintiffs responded to the MSJ No. 1 on August 16, 2013. See Plaintiffs Response to Defendant Sharkey’s Motion for Partial Summary Judgment No. I: Plaintiffs Fourth Amendment Illegal Seizure Claim (Count I) Based on Qualified Immunity, filed August 16, 2013 (Doc. 103) (“Response”). The Plaintiffs ask the Court to deny the MSJ No. 1. See Response at 1. The Plaintiffs argue that Sharkey lacked probable cause to believe that J.P. committed battery on a school employee, because J.P.’s age and diminished mental capacity prevented her from forming the general intent necessary to commit battery. See Response at 18-22. The Plaintiffs argue that, at common law, a child between seven and fourteen was presumed to be incapable of committing a criminal act. See Response at 18-19 (citations omitted). In the Plaintiffs’ view, because J.P. was eleven years old when the incident occurred,. Sharkey should have presumed that she was incapable of committing a crime. See Response at 18-19.
The Plaintiffs argue, moreover, that J.P.’s mental disability “exacerbates her inability to commit a criminal act.” Response at 19. ■ The Plaintiffs assert that, because J.P. was ultimately found incompetent to stand trial, she could not have formed the general intent necessary to commit, battery on a school employee. See Response at 19. The Plaintiffs point out that a number of factors indicate that Sharkey knew or should have known that J.P. was mentally disabled: (i) Sharkey had previously interacted with J.P.; (ii) he arrested J.P. in a special education classroom; (iii) he was trained about the ADA and knew that students with disabilities and special needs attend the school; and (iv) he was trained and certified in deescalation techniques. See Response at 20. In the Plaintiffs’ view, “[a]n objectively reasonable school resource officer in [Sharkey’s] position would have recognized that J.P. could not form the requisite intent to commit a battery" and, therefore, would not have probable cause to arrest her for battery upon a school employee.” Response at 21. The- Plaintiffs contend that Sharkey’s failure to investigate J.P.’s mental disability before arresting her “render[s] his probable cause, determination insufficient as a matter of law.” Response at 21 (citation omitted).
The Plaintiffs argue that New Mexico’s Delinquency Act, N.M. Stat. Ann. §§ 32A-2-1 through 32A-2-33 (“NMDA”), required Sharkey to consider J.P.’s age and mental disability before arresting her. See Response at 22. According to the Plaintiffs, the NMDA
*1128 treats children accused of delinquent acts differently than it treats adults and is specifically designed “to remove from children committing delinquent acts the adult consequences of criminal behavior, but to still hold children committing delinquent acts accountable for their actions to the extent of the child’s age, education, mental and physical condition, background and all other relevant factors.”
Response 23 (quoting N.M. Stat. Ann. § 32A-2-2A). The Plaintiffs argue that Sharkey “willfully ignore[d]” N.M. Stat. Ann. § 32A-2-2A by failing to consider J.P.’s age, education, mental and physical condition before arresting her. Response at 23. The Plaintiffs further argue that Sharkey had no legitimate reason for arresting and transporting J.P. to the juvenile detention center, because she did not meet the detention criteria. See Response at 24. The Plaintiffs explain that J.P. sat on the floor of an empty room attached to the classroom while crying for fifteen minutes before Sharkey arrested her. See Response at 24. In the Plaintiffs’ view, J.P.’s actions indicated that she “posed no risk of harm to anyone and no facts indicate any- exigency which justified her detention.” Response at 24.
The Plaintiffs argue, alternatively, that genuine issues of material fact prevent the Court from granting summary judgment at this stage. See Response at 24-25. The Plaintiffs contend that the parties dispute whether Sharkey was aware of J.P.’s mental disability before he arrested her. See Response at 25. The Plaintiffs argue that Sharkey is “attempting at this juncture to claim absolute ignorance to the fact that J.P. was diagnosed with emotional disturbance when he arrested her.” Response at 25. In the Plaintiffs’ view, multiple facts contradict Sharkey’s argument: (i) Sharkey had prior interactions with J.R. regarding her BIP; (ii) Sharkey is the kind of officer who gets to know his students; and (iii) Sharkey was trained in special education and students’ rights. See Response at 25. The Plaintiffs further contend that “federal law mandates that Sharkey actually discover and transmit J.P.’s special education file to the District Attorney’s Office.” Response at 25-26. The Plaintiffs assert that, accordingly, “a jury should consider [Sharkey’s] failure to discover [J.P.’s] disability despite federal law requiring an inquiry into the reasonableness question.” Response at 26.
3. Sharkey’s Reply.
Sharkey replied to the Response on September 3, 2013. See Reply to Plaintiffs’ Response to Defendant J.M. Sharkey’s Motion for Partial Summary Judgment No. I: Dismissal of Plaintiffs’ Fourth Amendment Illegal Seizure Claim (Count I) Based on Qualified Immunity, filed September 3, 2013 (Doc. 115) (“Reply”). Sharkey first addresses the Plaintiffs’ argument that, because J.P. was eleven years old at the time of the incident, there was a rebuttable presumption that she was incapable of forming the requisite criminal intent for battery of a school employee. See Reply at 15. Sharkey argues that this presumption applies only to a prosecutor at trial and not to a police officer’s probable-cause determination. See Reply at 15. Sharkey contends that the Plaintiffs do not cite — and he could not find — a case in which a court has required an officer to consider this presumption before finding probable cause. See Reply at 15 (citation omitted).
Sharkey argues that the Plaintiffs have offered no evidence indicating that J.P. was incapable of forming the requisite intent for battery on a school employee or that Sharkey was aware of such a disability. See Reply at 15-16. Sharkey argues that J.P.’s BIP belies the Plaintiffs’ con *1129 tention, because it states that J.P. “knows how to perform the desired behavior, but does not consistently do so.” Reply at 16 & n. 1 (citation omitted). Turning to the Plaintiffs’ argument that the NMDA required Sharkey to consider J.P.’s age and mental condition in finding probable cause, Sharkey states that, even assuming that the Plaintiffs’ argument is accurate, violating state law is not a per se violation of the United States Constitution. See Reply at 16 (citing, e.g., United States v. Jones, 701 F.3d 1300, 1309-10 (10th Cir.2012)).
Sharkey next addresses the Plaintiffs’ contention that he had no legitimate reason to transport J.P. to the juvenile detention facility. See Reply at 16-17. Sharkey asserts that the Plaintiffs “ignore the undisputed fact that J.P. hit her classmate twice in the head and violently struggled with and battered” Gonzales. Reply at 16-17. Sharkey argues that these actions justified detention. See Reply at 17 (citing N.M. Stat. Ann. § 32A-2-ll(A)(2) (stating that secure detention is warranted where a child “poses substantial risk of harm to others”); id. at § 32A-2-10C (“A child under the age of eleven shall not be held in detention.”) (emphasis in Reply but not source)). Sharkey contends that the Plaintiffs’ argument also fails to acknowledge “the provision of the Delinquency Act that imposes the duty to complete a risk assessment on the CYFD probation officer, not the law enforcement officer.” Reply at 17 (citing N.M. Stat. Ann. §§ 32A-2-5(A), 32A-2-ll(C)). Sharkey contends that, even if he violated the NMDA by arresting J.P. and transporting her to the detention center, “such violation does not negate his probable cause finding.” Reply at 17 (citing United States v. Jones, 701 F.3d at 1309-10 ).
Sharkey next turns to the Plaintiffs’ argument that there are genuine issues of material fact which preclude summary judgment. See Reply at 17-18. Sharkey maintains that the Plaintiffs’ “asserted disputes are not genuine.” Reply at 17. Sharkey contends that the Plaintiffs have offered “nothing more than mere speculation and hearsay to support their contention that [he] was aware of J.P.’s emotional disturbance classification.” Reply at 17. Sharkey asserts that, even if the Court accepts the Plaintiffs’ version of the facts, his knowledge of J.P.’s emotional disturbance classification is immaterial, because the Plaintiffs have not demonstrated that it was clearly established when he arrested J.P. that a student’s classification as emotionally disturbed is relevant to his probable-cause finding. See Reply at 17-18. Sharkey contends that summary judgment is therefore warranted. See Reply at 18.
4. The September 6, 2013, Hearing.
The Court held a hearing on September 6, 2013. See Transcript of Hearing (taken September 6, 2013) (“Tr.”). 74 Sharkey began by asserting that the Plaintiffs’ illegal seizure argument, “reduced to its essence,” is that it is morally wrong for a police officer to arrest a developmentally disabled child. Tr. at 7:Il-ls (Robles). Sharkey explained that, despite the Plaintiffs’ contentions, the relevant question in deciding the MSJ No. 1 is whether J.P.’s arrest was legal. See Tr. at 7:19-21 (Robles). Sharkey argued that, although the Plaintiffs have tried to create genuine issues of material fact by focusing on Sharkey’s purported violations of standard operating procedures, such violations are inadmissible in a § 1983 case. See Tr. at 7:22-8:13 (Ro *1130 bles) (citing Solis-Marrufo v. Bd. of Comm’rs, No. CIV 11-0107 JB/KBM, 2013 WL 1658278 (D.N.M. Mar. 29, 2013) (Browning, J.)). Sharkey explained that the Supreme Court has held that an officer’s violation of a state law is insufficient to defeat the officer’s probable cause finding under the Fourth Amendment. See Tr. at 8:13-17 (Robles) (citing Virginia v. Moore, 553 U.S. 164 , 128 S.Ct. 1598 , 170 L.Ed.2d 559 (2008)). Sharkey asserted that, accordingly, even if he violated New Mexico state law when he arrested J.P., such violations would not lead to any genuine issues of material fact that would preclude summary judgment. See Tr. at 8:23-24 (Robles).
Sharkey reiterated the argument from his Response that an officer may lawfully arrest an individual so long as the officer has probable cause to believe that the individual has committed “even a very minor criminal offense in [the officer’s] presence.” Tr. at 10:3-8 (Robles) (citation omitted). Sharkey explained that “[i]t is clear and undisputed that [Sharkey] witnessed J.P. kick a teacher ... [which is] a felony violation of state law.” Tr. at 10:12-15 (Robles). Sharkey pointed out that J.P. stopped kicking the teacher and retreated to the classroom as soon as she saw Sharkey. See Tr. at 10:16-11:15 (Robles). Sharkey argued that these actions indicated that J.P. possessed the requisite mens rea to commit battery upon a school employee. See Tr. at 11:16-17 (Robles).
Sharkey stated that, although the Plaintiffs have tried to “look into Deputy Shar-key’s mind, about what his motives were” for arresting J.P., the Supreme Court has held that an officer’s subjective intent is irrelevant under the Fourth Amendment. See Tr. at 11:18-25 (Robles) (citing Whren v. United States, 522 U.S. 1119 , 118 S.Ct. 1059 , 140 L.Ed.2d 120 (1998)). Sharkey contended that, moreover, “a disability does not exempt anyone from abiding [by] the law.” Tr. at 11:25-12:2 (Robles). Sharkey asserted that the Plaintiffs have not cited a case in which a court has required an officer to have more than probable cause before arresting a developmentally disabled person. See Tr. at 12:11-15 (Robles). Sharkey alleged that, by contrast, he has cited “certain district court cases which in similar factual circumstances have found the arrest of children of this age who had disabilities to be constitutional.” Tr. at 12:16-19 (Robles). In Sharkey’s view, there is sufficient undisputed evidence for the Court to conclude that he had probable cause to arrest J.P. See Tr. at 12:21-25 (Robles).
The Court asked the Plaintiffs what disputed material facts preclude summary judgment. See Tr. at 13:5-9 (Court). The Plaintiffs stated that the parties dispute whether Sharkey was aware of sufficient facts that would have required him to investigate J.P.’s ability to form the requisite criminal intent to commit battery before arresting ■ her. See Tr. at 13:14-19 (Kennedy). The Plaintiffs argued that Sharkey had such a duty, because: (i) he had a prior interaction with J.H., J.P.’s mother, during which J.H. informed Shar-key that J.P. had a BIP; (ii) he arrested J.P. in a special education class; (iii) he knows that the school has a procedure for managing disabled children that have violent outbreaks; (iv) twenty-five percent of the students in the school were in special education programs; and (v) Congress expressed its intent in the IDEA that children with disabilities should not be excluded from school even if their disabilities cause them to commit violent actions. See Tr. at 14:7-15:2 (Kennedy); id. at 16:18-25 (Kennedy).
The Plaintiffs explained that, before arresting J.P., Sharkey did not ask her what had happened, why she hit Gonzales, or *1131 whether she intended to do so. See Tr. at 15:7-11 (Kennedy). The Plaintiffs argued that Sharkey had a duty to interview J.P. and her teachers to determine what had happened before the incident and whether J.P.’s actions were a manifestation of her disability or a criminal act. See Tr. at 16:11-17 (Kennedy). The Court asked whether the Plaintiffs would concede that there is no bright-line rule prohibiting officers from arresting developmentally disabled children. See Tr. at 17:8-12 (Court). The Plaintiffs agreed that no such rule exists. See Tr. at 17:13-14 (Kennedy). The Court asked the Plaintiffs what the narrowest holding would be under which they could prevail. See Tr. at 17:14-17 (Court). The Plaintiffs responded that the Court’s holding could turn on a combination of two legal authorities: (i) the IDEA, which recognizes that schools should not punish children when their disabilities cause them to commit violent actions; and (ii) the common-law re-buttable presumption that children cannot form the requisite intent to commit a crime, which indicates that an officer has a duty to investigate whether intent is established whenever a child in a special education class commits a violent act. See Tr. at 17:18-18:14 (Kennedy).
The Court asked the Plaintiffs for the strongest cases from the Tenth Circuit that support their position. See Tr. at 20:8-10 (Court). The Plaintiffs said that Baptiste v. J.C. Penney Co., 147 F.3d 1252 (10th Cir.1998), is the strongest case indicating that officers have a duty to investigate and review all available evidence at the scene before making an arrest. See Tr. at 20:15-18 (Kennedy). The Plaintiffs stated that, in that case, the Tenth Circuit held that police officers should have viewed a video footage that the store had taken of the shoplifter before arresting her to determine whether they had probable cause to believe she had committed a crime. See Tr. at 20:21-25 (Kennedy). The Plaintiffs said that they could not find any cases outside of the Tenth Circuit that support their argument. See Tr. at 21:5-21 (Kennedy, Court).
Sharkey argued that the Plaintiffs improperly borrow their duty-to-investigate theory from the IDEA. See Tr. at 22:2-5 (Robles). Sharkey stated that the IDEA applies only to educational establishments and not to law enforcement officers. See Tr. at 22:6-8 (Robles). Sharkey explained that the IDEA contains a provision that explicitly allows state and local law enforcement to enforce state and federal law in cases involving children with disabilities. See Tr. at 22:6-8 (Robles). Sharkey stated that, accordingly, “to the extent that the IDEA creates some sort of duty to protect ... children who have these disorders which may make them violent and disruptive from being excluded from school, it does not insulate those children from the criminal consequences of their action[s].” Tr. at 22:9-13 (Robles).
The Court inquired whether the state— through police officers, teachers, or principals — has to treat developmentally disabled children differently from others. See Tr. at 22:22-23:1 (Court). Sharkey responded that he “would like to answer [that] question with a deeper review of the facts.” Tr. at 23:2-3 (Robles). Sharkey explained that, “on the date this incident occurred!,] all that [he] knew was that [J.P.] was in special education.” Tr. at 23:3-5 (Robles). Sharkey pointed out that “it wasn’t until six months later that J.P. ■[w]as actually diagnosed with having the learning disability ADHD.” Tr. at 23:6-7. Sharkey argued that, therefore, “this whole notion that [J.P. is] developmentally disabled and [it] should have been clear to anyone that she didn’t have mens rea simply doesn’t have a factual basis.” Tr. at 8-10 (Robles). Sharkey also explained that *1132 special education programs include both children who “were once called gifted” and children with developmental disabilities. Tr. at 23:10-13 (Robles). In Sharkey’s view, therefore, to say that a child cannot form the requisite intent for a crime because he or she is in a special education class “is a bridge too far.” Tr. at 23:14-17 (Robles). Sharkey also argued that there is no evidence that anyone at the school knew on or before the date of the incident that J.P. could not form the requisite intent for battery. See Tr. at 23:17-22 (Robles). Sharkey contended that there is, therefore, no indication that any additional investigation would have revealed this information. See Tr. at 23:23-25 (Robles).
Sharkey reiterated the argument from the MSJ No. 1 and from the Reply that an average police officer who observed J.P.’s actions would have probable cause to believe that she committed a crime. See Tr. at 24:8-25 (Robles). Sharkey asserted that, as a police officer, he needed to establish only probable cause; he did not have to prove either the mens rea or the actus reus of the crime beyond a reasonable doubt. See Tr. at 24:24-25:2 (Robles). Sharkey analogized this case to Romero v. Fay, 45 F.3d 1472 (10th Cir.1995). See Tr. at 25:12-13 (Robles). According to Shar-key, in that case,
an Albuquerque Police Department detective was confronted by a murder suspect who kept demanding that he was innocent and he could prove his innocence if he only talked to certain people. But yet the other information that was available to the [detective] certainly supported [a] finding of probable cause. And despite the fact that [the suspect] was in fact factually innocent, that wasn’t enough to vitiate probable cause.
Tr. at 25:14-21 (Robles). Sharkey stated that Romero v. Fay indicates that the duty to investigate “is not a duty to investigate every possibility, to essentially prove the criminal defense ... lawyer’s case for him or her. It’s simply to prove probable cause.”. Tr. at 25:21-25 (Robles). Shar-key argued that further investigation into J.P.’s ability to form the requisite intent was unnecessary, because J.P.’s actions established probable cause. See Tr. at 26:2-11 (Gobles).
The Court asked the Plaintiffs whether — without considering Sharkey’s duty to investigate J.P.’s ability to form the requisite intent for battery — Sharkey had probable cause. See Tr. at 26:12-15 (Court). The Plaintiffs responded:
I agree that there’s probable cause to detain and investigate[,].... As far as the factual elements of the crime being fulfilled, but the criminal act is a general intent crime under the state of — and of course we’re examining state of New Mexico law as to how it interprets criminal law, so factually,- yes, probable cause. So [Sharkey] had enough evidence that there was factually probable cause.
Tr. at 26:16-27:1 (Kennedy). The Plaintiffs explained, however, that, because the government has to prove general intent at trial, an officer should have to consider whether an individual has the requisite intent to commit the crime as part of his or her probable cause analysis. See. Tr. at 27:7-14 (Kennedy). The Court asked whether, “if you have what you’re calling factual probable cause isn’t ... in a simplistic way, without getting the fact that it’s children or they’re disabled or anything like that, it becomes a question ... of [whether the officer] had a duty to investigate further?” Tr. at 27:15-21 (Court). The Plaintiffs responded that Sharkey’s knowledge of J.P.’s disability triggered his duty to further investigate whether J.P. had the requisite intent to commit battery. See Tr. at 28:5-13 (Kennedy).
*1133 The Court asked Sharkey whether he had any black-letter law indicating that an officer does not owe any special duties to developmentally disabled children when determining probable cause. See Tr. at 29:9-12 (Court). Sharkey responded that, under Tenth Circuit law, an officer has a duty to investigate only exculpatory evidence that is readily available. See Tr. at 29:13-15 (Robles). Sharkey explained that, unlike in Baptiste v. J.C. Penney Co., where the officers refused to consider a readily accessible surveillance tape that contained exculpatory material, in this case, requiring Sharkey to further investigate J.P.’s ability to form the requisite intent for battery would force him to “delve[ ] into the protected mental healthcare records of a [child].” Tr. at 29:18-20 (Robles). Sharkey contended that FER-PA prohibited him from conducting such an investigation. See Tr. at 29:20-22 (Robles). Sharkey argued that, moreover, even if he had looked at J.P.’s records, those records would not have indicated that J.P. could not form the requisite intent for battery. See Tr. at 30:5-10 (Robles).
Sharkey also asserted that, far from being clearly established law, there is not a single case in which a court has required an officer to investigate whether a developmentally disabled individual can form the requisite intent for a particular crime. See Tr. at 30:25-31:9 (Robles). Sharkey contended that, accordingly, qualified immunity bars the Plaintiffs’ claim. See Tr. at 31:11-12 (Robles). The Court asked Shar-key how he would address the Tenth Circuit’s holding in Romero v. Fay, which seems to require officers to investigate further even where the elements of a crime are met. See Tr. at 31:13-16. Shar-key contended that Romero v. Fay stands for the proposition that “someone may be factually] innocent but that doesn’t mean that the officer at the time of the arrest did not have probable cause.” Tr. at 32:15-18 (Robles). 'In Sharkey’s view, that proposition applies equally here: that J.P. is incompetent to stand trial has no bearing on whether Sharkey had probable cause to arrest her. See Tr. at 32:18-33:4 (Robles).
The Court said that it was having a difficult time trying to determine when this duty to investigate arises. See Tr. at 33:5-11 (Court); id. at 33:13-16 (Court). Sharkey responded that he could not find a case “where there was a duty imposed on an officer ... to examine the student’s special education records to determine from those records[,] interviews of the family, interviews of ... individuals with knowledge” whether the student had the requisite mens rea to commit a crime. Tr. at 33:17-24 (Robles). The Court asked: “[Y]ou think once [officers] come up to the scene, they check off [the elements of the crime], that’s it, they don’t have to do any investigation, whether- it’s in this case or any other 'case?” Tr. at 33:25-24:3 (Court). Sharkey responded that he would not extend the rule that far. See Tr. at 34:4-5 (Robles). Sharkey argued that he would distinguish this case from the Court’s hypothetical scenario, because there is no Supreme Court or Tenth Circuit precedent indicating that an officer cannot find probable cause without evidence of mens rea. See Tr. at 34:6-9 (Robles). Sharkey explained that, although prosecutors must prove mens rea during trial, there is no such duty imposed on law enforcement officers in finding probable cause. See Tr. at 34:10-13 (Robles).
Sharkey also argued that, even if there is such a requirement, J.P.’s actions — that she stopped kicking Gonzales and retreated to a classroom when Sharkey arrived— demonstrated her mens rea. See Tr. at 34:15-21 (Robles). The Court said that it was reluctant to cabin the issue to what *1134 steps an officer must take before arresting a mentally disabled child. See Tr. at 35:14-18 (Court). In the Court’s view, the better way to frame the issue — at least for qualified immunity purposes — is how far officers must go in an investigation when they already have enough evidence to establish probable cause. See Tr. at 35:19-21 (Court). The Court questioned whether Romero v. Fay was the best case to answer that question. See Tr. at 35:21-22 (Court). The Court stated that it had dealt with this issue recently and thought it had written that the duty arises in only a narrow set of circumstances. See Tr. at 35:22-36:2 (Court). The Court thought that there were Tenth Circuit cases involving search warrants in which officers had a broader duty to investigate facts which might undercut the warrant — like an informant’s reliability. See Tr. at 35:3-8 (Court). The Court said that it was inclined to think that, by contrast, when officers respond to the scene of a crime, they have a narrow duty to investigate. See Tr. at 36:8-10 (Court). The Court said that it was concerned that the Plaintiffs’ rule would require officers to investigate further in a fast-paced situation involving violent activity before arresting anyone. See Tr. at 36:13-18 (Court). The Court concluded that it was more troubled by the Plaintiffs’ approach than Sharkey’s and that it was, therefore, leaning towards granting the MSJ No. 1. See Tr. at 36:19-20 (Court).
LAW REGARDING SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “The movant bears the initial burden of ‘showing] that there is an absence of evidence to support the nonmoving party’s case.’ ” Herrera v. Santa Fe Pub. Sch., 956 F.Supp.2d 1191, 1221 (D.N.M.2013) (Browning, J.) (quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)). See Celotex Corp. v. Catrett, 477 U.S. 317, 323 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). “If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence— using any of the materials specified in Rule 56(c) — that would entitle it to a directed verdict if not controverted at trial.” Celotex Corp. v. Catrett, 477 U.S. at 331 , 106 S.Ct. 2548 (Brennan, J., dissenting) (emphasis in original). 75 Once the movant meets this burden, rule 56 requires the nonmoving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324 , 106 S.Ct. 2548 ; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986).
The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238 , 1241 (10th Cir.1990). See Vitkus v. Bea *1135 trice Co., 11 F.3d 1535, 1539 (10th Cir.1993) (“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those disposi-tive matters for which it carries the burden of proof.” (quotation marks omitted)). Rule 56(c)(1) provides: “A party asserting that a fact ... is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his pleadings.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S.Ct. 2505 . See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980) (“However, ‘once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.’ ” (citation omitted)). Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat’l Ins. Co. v. Omer, No. CIV 07-2123 JAR, 2008 WL 2309005 , at *1 (D.Kan. June 2, 2008) (citing Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006); Fed. R.Civ.P. 56(e)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.’ ” Colony Nat’l Ins. Co. v. Omer, 2008 WL 2309005 , at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988)).
To deny a motion for summary judgment, genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505 . A mere “scintilla” of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505 ). Rather, there must be sufficient evidence on which the factfinder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448 , 14 Wall. 442 , 20 L.Ed. 867 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539 . “[Tjhere is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 (citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the nonmoving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986).
When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court’s role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 . Second, the ultimate standard of proof is *1136 relevant for purposes of ruling on a summary judgment, such that, when ruling on a summary judgment motion, the court must “bear in mind the actual quantum and quality of proof necessary to support liability.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 254, 106 S.Ct. 2505 . Third, the court must resolve all reasonable inferences and doubts in favor of the nonmoving party, and construe all evidence in the light most favorable to the nonmoving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55 , 119 S.Ct. 1545 , 143 L.Ed.2d 731 (1999); Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”). Fourth, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 .
There are, however, limited circumstances in which the Court may disregard a party’s version of the facts. This doctrine developed most robustly in the qualified-immunity arena. In Scott v. Harris, 550 U.S. 372 , 127 S.Ct. 1769 , 167 L.Ed.2d 686 (2007), the Supreme Court concluded that summary judgment was appropriate where video evidence “quite clearly contradicted” the plaintiffs version of the facts. 550 U.S. at 378-81 , 127 S.Ct. 1769 . The Supreme Court explained:
At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ ” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. [at 586-87] 106 S.Ct. 1348 (footnote omitted).
“[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. [at] 247-248, 106 S.Ct. 2505 _When 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.
That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. Respondent’s version of events is so utterly discredited by the record that no reasonable jury could •have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.
Scott v. Harris, 550 U.S. at 380-81 , 127 S.Ct. 1769 (emphasis in original).
Applying this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir.2009), the Tenth Circuit explained:
[B]ecause at summary judgment we are beyond the pleading phase of the litigation, a plaintiffs version of the facts must find support in the record: more specifically, “[a]s with any motion for summary judgment, whén 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[.]” York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th *1137 Cir.2008) (quoting Scott [v. Harris], 550 U.S. at 380 , 127 S.Ct. 1769 ); see also Estate of Larsen ex. rel Sturdivan v. Murr, 511 F.3d 1255, 1258 (10th Cir.2008).
584 F.3d at 1312 . “The Tenth Circuit, in Rhoads v. Miller, [ 352 Fed.Appx. 289 (10th Cir.2009) (Tymkovieh, J.) (unpublished), 76 ] explained that the blatant contradictions of the record must be supported by more than other witnesses’ testimony!.]” Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1249 (D.N.M.2010) (Browning, J.) (citation omitted).
In evaluating a motion for summary judgment based on qualified immunity, we take the facts “in the light most favorable to the party asserting the injury.” Scott v. Harris, 550 U.S. 372, 377 , 127 S.Ct. 1769 , 167 L.Ed.2d 686 (2007). “[T]his usually means adopting ... the plaintiffs version of the facts,” id. at 378 , 127 S.Ct. 1769 , unless that version “is so utterly discredited by the record that no reasonable jury could have believed him,” id. at 380 , 127 S.Ct. 1769 . In Scott , the plaintiffs testimony was discredited by a videotape that completely contradicted his version of the events. 550 U.S. at 379 , 127 S.Ct. 1769 . Here, there is no videotape or similar evidence in the record to blatantly contradict Mr. Rhoads’ testimony. There is only other witnesses’ testimony to oppose his version of the facts, and our judicial system leaves credibility determinations to the jury. And given the undisputed fact of injury, Mr. Rhoads’ alcoholism and memory problems go to the weight of his testimony, not its admissibility. ...
Mr. Rhoads alleges that his injuries resulted from a beating rendered without resistance or provocation. If believed by'the jury, the events he describes are sufficient to support a claim of violation of clearly established law under Graham v. Connor, 490 U.S. 386, 395-96 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989), and this court’s precedent.
Rhoads v. Miller, 352 Fed.Appx. at 291-92 (internal quotation marks omitted). See Lymon v. Aramark Corp., 728 F.Supp.2d at 1249 -50 (quoting Rhoads v. Miller, 352 Fed.Appx. at 291-92 ). In a concurring opinion in Thomson v. Salt Lake County, the Honorable Jerome A. Holmes, United States Circuit Judge for the Tenth Circuit, stated that courts must focus first on the legal question of qualified immunity and “determine whether plaintiffs factual allegations are sufficiently grounded in the record such that they may permissibly comprise the universe of facts that will serve as the foundation for answering the legal question before the court” before in *1138 quiring into whether there are genuine issues of material fact for resolution by the jury. 584 F.3d at 1326-27 (Holmes, J., concurring) (citing Goddard v. Urrea, 847 F.2d 765, 770 (11th Cir.1988) (Johnson, J., dissenting)) (observing that, even if factual disputes exist, “these disputes are irrelevant to the qualified immunity analysis because that analysis assumes the validity of the plaintiffs’ facts”).
LAW REGARDING LIABILITY FOR CONSTITUTIONAL VIOLATIONS UNDER 42 U.S.C. § 1983
Section 1983 of Title 42 of the United States Code provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
42 U.S.C. § 1983 . “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 , 108 S.Ct. 2250 , 101 L.Ed.2d 40 (1988). Individual, non-supervisory defendants may be liable if they knew or reasonably should have known that their conduct would lead to the deprivation of a plaintiffs constitutional rights by others, and an unforeseeable intervening act has not terminated their liability. See Martinez v. Carson, 697 F.3d 1252, 1255 (10th Cir.2012) (“The requisite causal connection is satisfied if [the defendants] set in motion a series of events that [the defendants] knew or reasonably should have known would cause others to deprive [the plaintiffs] of [their] constitutional rights.”) (quoting Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir.2006)). The Supreme Court has made clear that there is no respondeat superior liability under 42 U.S.C. § 1983 . See Ashcroft v. Iqbal, 556 U.S. 662, 675 , 129 S.Ct. 1937 , 173 L.Ed.2d 868 (2009) (“Because vicarious liability is inapplicable to Bivens 77 and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”); Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 403 , 117 S.Ct. 1382 , 137 L.Ed.2d 626 (1997). “An entity cannot be held liable solely on the basis of the existence of an employer-employee relationship with an alleged tortfeasor.” Garcia v. Casuas, No. CIV 11-0011 JB/RHS, 2011 WL 7444745 , at *25 (D.N.M. Dec. 8, 2011) (Browning, J.) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 689 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978)). Supervisors can be held liable only for their own unconstitutional or .illegal policies, and not for the employees’ *1139 tortious acts. See Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir.1998).
1. Color of State Law.
“Under Section 1983, liability attaches only to conduct occurring ‘under color of law.’ ” Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir.1995). The under-color-of-state-law requirement is a “jurisdictional requisite for a § 1983 action, which ... furthers the fundamental goals of preserving an area of individual freedom by limiting the reach of federal law ... and avoiding imposing on the state, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.” Jojola v. Chavez, 55 F.3d 488, 492 (10th Cir.1995). “The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’ ” West v. Atkins, 487 U.S. at 49 , 108 S.Ct. 2250 (quoting United States v. Classic, 313 U.S. 299, 326 , 61 S.Ct. 1031 , 85 L.Ed. 1368 (1941)). “The authority with which the defendant is allegedly ‘clothed’ may be either actual or apparent.” Jojola v. Chavez, 55 F.3d at 493 . Accordingly, at a base level, to find that an action was taken under color of state law, the court must find that “ ‘the conduct allegedly causing the deprivation of a federal right’ must be ‘fairly attributable to the State.’ ” Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1447 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 , 102 S.Ct. 2744 , 73 L.Ed.2d 482 (1982)).
In the context of a public employee, the Tenth Circuit has directed that, while “ ‘state employment is generally sufficient to render the defendant a state actor ... [,]’ at the same time, it is Veil settled that an otherwise private tort is not committed under color of law simply because the tortfeasor is an employee of the state.’ ” Jojola v. Chavez, 55 F.3d at 493 (quoting Lugar v. Edmondson Oil Co., 457 U.S. at 935 -36 n. 18, 102 S.Ct. 2744 ; Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir.1995)). Thus, “before conduct may be fairly attributed to the state because it constitutes action ‘under color of state law,’ there must be ‘a real nexus’ between the employee’s use or misuse of their authority as a public employee, and the violation allegedly committed by the defendant.” Jojola v. Chavez, 55 F.3d at 493 . What constitutes the required real nexus, however, is not completely clear. As the Tenth Circuit has stated, whether there is a real nexus in a particular case depends on the circumstances:
The under color of law determination rarely depends on a single, easily identifiable fact, such as the officer’s attire, the location of the act, or whether or not the officer acts in accordance with his or her duty. Instead one must examine “the nature and circumstances of the officer’s conduct and the relationship of that conduct to the performance of his official duties.”
David v. City & Cnty. of Denver, 101 F.3d 1344 , 1353 (10th Cir.1996) (internal citations omitted) (quoting Martinez v. Colon, 54 F.3d 980, 986 (1st Cir.1995)).
2. Individual Liability.
Government actors may be liable for the constitutional violations that another committed, if the actors “set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights,” thus establishing the “requisite causal connection” between the government actor’s conduct and a plaintiffs constitutional deprivations. Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir.2006). The Tenth Circuit *1140 has explained that § 1983 liability should be “ ‘read against the background of tort liability that makes a man responsible for the natural consequences of his actions.’ ” Martinez v. Carson, 697 F.3d at 1255 (quoting Monroe v. Pape, 365 U.S. 167, 187 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961), overruled in part by Monell v. Dep’t of Soc. Servs., 436 U.S. at 663 , 98 S.Ct. 2018 ). “Thus, Defendants are liable for the harm proximately caused by their conduct.” Martinez v. Carson, 697 F.3d at 1255 (citing Trask v. Franco, 446 F.3d at 1046 ). As the Court has previously concluded, “a plaintiff who establishes liability for deprivations of constitutional rights actionable under 42 U.S.C. § 1983 is entitled to recover compensatory damages for all injuries suffered as a consequence of those deprivations. The recovery should be guided by common-law tort principles— including principles of causation.... ” Train v. City of Albuquerque, 629 F.Supp.2d 1243, 1251 (D.N.M.2009) (Browning, J.).
The Tenth Circuit has found liability for those. defendants who proximately caused an injury alleged under § 1983 and stated that the fact that the “conduct of other people may have concurrently caused the harm does not change the outcome as to [the defendant],” so long as there was not a superseding-intervening cause of a plaintiffs harm. Lippoldt v. Cole, 468 F.3d 1204, 1220 (10th Cir.2006).
Even if a factfinder concludes that the residential search was unlawful, the officers only “would be liable for the harm ‘proximately’ or ‘legally’ caused by their tortious conduct.” Bodine v. Warwick, 72 F.3d 393, 400 (3d Cir.1995). “They would not, however, necessarily be liable for all of the harm caused in the ‘philosophic’ or but-for sense by the illegal entry.” Id. In civil rights cases, a superseding cause, as we traditionally understand it in tort law, relieves a defendant of liability. See, e.g., Warner v. Orange Cnty. Dep’t of Prob., 115 F.3d 1068, 1071 (2d Cir.1997); Springer v. Seaman, 821 F.2d 871, 877 (1st Cir.1987), abrogated on other grounds by Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 , 109 S.Ct. 2702 , 105 L.Ed.2d 598 (1989).
Trask v. Franco, 446 F.3d at 1046. Thus, in the context of a claim under the Fourth Amendment, the Tenth Circuit has held that government actors “may be held hable if the further unlawful detention and arrest would not have occurred but for their conduct and if there were no unforeseeable intervening acts superseding their liability.” Martinez v. Carson, 697 F.3d at 1255 . The Tenth Circuit gave an example of a superseding-intervening cause, quoting the Honorable Samuel J. Alito, then-United States Circuit Judge for the United States Court of Appeals for the Third Circuit, now-Associate' Justice for the Supreme Court:
Suppose that three police officers go to a suspect’s house to execute an arrest warrant and that they improperly enter without knocking and announcing their presence. Once inside, they encounter the suspect, identify themselves, show him the warrant, and tell him that they are placing him under arrest. The suspect, however, breaks away, shoots and kills two of the officers, and is preparing to shoot the third officer when that officer disarms the suspect and in the process injures him. Is the third officer necessarily liable for the harm caused to the suspect on the theory that the illegal entry without knocking and announcing rendered any subsequent use of force unlawful? The obvious answer is “no.” The suspect’s conduct would constitute a “superseding” cause, see Restatement (Second) of Torts § 442 (1965), that *1141 would limit the officer’s liability. See id. § 440. ‘
Trask v. Franco, 446 F.3d at 1046 (quoting Bodine v. Warwick, 72 F.3d at 400 ). Additionally, “[f]oreseeable intervening forces are within the scope of the original risk, and ... will not supersede the defendant’s responsibility.” Trask v. Franco, 446 F.3d at 1047 (quoting William Lloyd Prosser et al., Prosser and Keeton on Torts § 44, at 303-04 (5th ed.1984)). If
the reasonable foreseeability of an intervening act’s occurrence is a factor in determining whether the intervening act relieves the actor from liability for his antecedent wrongful act, and under the undisputed facts there is room for reasonable difference of opinion as to whether such act was wrongful or foreseeable, the question should be left for the jury.
Trask v. Franco, 446 F.3d at 1047 (citing Restatement (Second) of Torts § 453 cmt. b (1965)).
3. Supervisory Liability.
The Tenth Circuit has held that supervisors are not liable under 42 U.S.C. § 1983 unless there is “ ‘an affirmative link ... between the constitutional deprivation and either the supervisor’s personal participation, ... exercise of control or direction, or ... failure to supervise.’ ” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir.2009) (quoting Green v. Branson, 108 F.3d 1296, 1302 (10th Cir.1997)) (internal alterations omitted). Because supervisors can be held liable only for their own constitutional or illegal policies, and not for the torts that their employees commit, supervisory liability requires a showing that such policies were a “deliberate or conscious choice.” Barney v. Pulsipher, 143 F.3d at 1307-08 (citations omitted) (internal quotation marks omitted). C f. Bd. of Cnty. Comm’rs v. Brown, 520 U.S. at 404 , 117 S.Ct. 1382 (“[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.” (emphasis in original)).
The Tenth Circuit has recognized that Ashcroft v. Iqbal limited, but did not eliminate, supervisory liability for government officials based on an employee’s or subordinate’s constitutional violations. See Garcia v. Casuas, 2011 WL 7444745 , at *25-26 (citing Dodds v. Richardson, 614 F.3d 1185 (10th Cir.2010)). The language that may have altered the landscape for supervisory liability in Ashcroft v. Iqbal is as follows: “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. at 676 , 129 S.Ct. 1937 . The Tenth Circuit in Dodds v. Richardson held:
Whatever else can be said about Iqbal , and certainly much can be said, we conclude the following basis of § 1983 liability survived it and ultimately resolves this case: § 1983 allows a plaintiff to impose liability upon a defendant-supervisor who creates, promulgates, implements, or in some other way possesses responsibility for the continued operation of a policy the enforcement (by the defendant-supervisor or her subordinates) of which “subjects, or causes to be subjected” that plaintiff “to the deprivation of any rights ... secured by the Constitution....”
614 F.3d at 1199 . The Tenth Circuit noted that Ashcroft v. Iqbal “does not purport to overrule existing Supreme Court precedent,” but stated that “Iqbal may very well have abrogated § 1983 supervisory liabili *1142 ty as we previously understood it in this circuit in ways we do not need to address to resolve this case.” Dodds v. Richardson, 614 F.3d at 1200 . It concluded that Ashcroft v. Iqbal did not alter “the Supreme Court’s previously enunciated § 1983 causation and personal involvement analysis.” Dodds v. Richardson, 614 F.3d at 1200 . The Tenth Circuit, based on this conclusion, set forth a test for supervisory liability under § 1983 after Ashcroft v. Iqbal:
A plaintiff may ... succeed in a § 1983 suit against a defendant-supervisor by demonstrating: (1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation.
Dodds v. Richardson, 614 F.3d at 1199 - 1200 (citing Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir.2002)). The Tenth Circuit noted, however: “We do not mean to imply that these are distinct analytical prongs, never to be intertwined.” Dodds v. Richardson, 614 F.3d at 1200 n. 8. Relying on the Supreme Court’s opinion in Board of County Commissioners v. Brown, the Tenth Circuit reasoned that two of the prongs often, if not always, are sufficient proof that the third prong has been met also:
Where a plaintiff claims that a particular municipal action itself violates federal law, or directs an employee to do so, resolving these issues of fault and causation is straightforward. Section 1983 itself contains no state-of-mind requirement independent of that necessary to state a violation of the underlying federal right. In any § 1983 suit, however, the plaintiff must establish the state of mind required to prove the underlying violation. Accordingly, proof that a municipality’s legislative body or authorized decisionmaker has intentionally deprived a plaintiff of a federally protected right necessarily establishes that the municipality acted culpably. Similarly, the conclusion that the action taken or directed by the municipality or its authorized decisionmaker itself violates federal law will also determine that the municipal action was the moving force behind the injury of which the plaintiff complains.
Dodds v. Richardson, 614 F.3d at 1200 n. 8 (quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S. at 404-05 , 117 S.Ct. 1382 ) (internal quotation marks omitted). The Tenth Circuit noted that “[w]e think the same logic applies when the plaintiff sues a defendant-supervisor who promulgated, created, implemented or possessed responsibility for the continued operation of a policy that itself violates federal law.” Dodds v. Richardson, 614 F.3d at 1200 n. 8. Thus, the Tenth Circuit reduced the test to what can be seen as a two-part test for supervisor liability, requiring the plaintiff to prove “an ‘affirmative’ link ... between the unconstitutional acts by their subordinates and their ‘adoption of any plan or policy ... — express or otherwise — showing their authorization or approval of such misconduct.’ ” Dodds v. Richardson, 614 F.3d at 1200 -01 (quoting Rizzo v. Goode, 423 U.S. 362, 371 , 96 S.Ct. 598 , 46 L.Ed.2d 561 (1976)).
4. Municipal Liability.
A municipality will not be held liable under § 1983 solely because its officers inflicted injury. See Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir.2006). Rather, to establish municipal liability under § 1983, a plaintiff must demonstrate: (i) that an officer committed an underlying constitutional violation; (ii) that a municipal policy or custom exists; and (iii) that *1143 there is a direct causal link between the policy or custom, and the injury alleged. See Graves v. Thomas, 450 F.3d at 1218 . When a claim is brought against a municipality for failing to train its officers adequately, the plaintiff must show that the municipality’s inaction was the result of deliberate indifference to the rights of its inhabitants. See Graves v. Thomas, 450 F.3d at 1218 .
LAW REGARDING FOURTH AMENDMENT SEIZURES
For purposes of analyzing Fourth Amendment seizures, the Tenth Circuit has divided interactions between police and citizens into three categories: (i) consensual encounters; (ii) investigative stops; and (iii) arrests. See Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir.2000). A consensual encounter occurs when a police officer approaches a person to ask questions under circumstances where a reasonable person would feel free to refuse to answer and to end the encounter. See Oliver v. Woods, 209 F.3d at 1186 . For example, officers generally may “go to a person’s home to interview him,” United States v. Daoust, 916 F.2d 757, 758 (1st Cir.1990), because “[i]t is not improper for a police officer to call at a particular house and seek admission for the purpose of investigating a complaint or conducting other official business,” 1 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.3(b), at 475 (3d ed.1996). Such encounters generally “are not seizures within the meaning of the Fourth Amendment, and need not be supported by suspicion of criminal wrongdoing.” Oliver v. Woods, 209 F.3d at 1186 .
1. Investigative Detentions and Reasonable Suspicion.
An encounter that is not consensual may nevertheless be justified as an investigative detention. An investigative detention occurs when an officer stops and briefly detains a person “in order to determine his identity or to maintain the status quo momentarily while obtaining more information.” Oliver v. Woods, 209 F.3d at 1186 (quoting Adams v. Williams, 407 U.S. 143, 146 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972)). Inasmuch as such brief investigative detentions are not consensual, they constitute a seizure and must meet two distinct requirements to be “reasonable” under the Fourth Amendment. First, the officer “must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Oliver v. Woods, 209 F.3d at 1186 (quoting United States v. Cortez, 449 U.S. 411, 417-18 , 101 S.Ct. 690 , 66 L.Ed.2d 621 (1981)). Second, the investigative detention that follows the stop must be “reasonably related in scope to the circumstances” which justified the stop in the first place, Terry v. Ohio, 392 U.S. 1, 20 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), because the Fourth Amendment imposes “limitations on both the length of the detention and the manner in which it is carried out,” United States v. Holt, 264 F.3d 1215, 1229 (10th Cir.2001) (en banc), overruled on other grounds as recognized in United States v. Stewart, 473 F.3d 1265 (10th Cir.2007).
“For reasonable suspicion to exist, an officer ‘need not rule out the possibility of innocent conduct;’ he or she simply must possess ‘some minimal level of objective justification’, for making the stop.” United States v. Winder, 557 F.3d 1129, 1134 (10th Cir.2009) (quoting United States v. Vercher, 358 F.3d 1257, 1261 (10th Cir.2004)). Information “falling ‘considerably short’ of a preponderance standard” will meet the standard for reasonable suspicion. United States v. Winder, 557 F.3d at 1134 . See Illinois v. Wardlow, 528 U.S. 119, 123 , 120 S.Ct. 673 , 145 *1144 L.Ed.2d 570 (2000) (noting that “ ‘reasonable suspicion’ is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence”). A police-citizen encounter that goes beyond the limits of a stop under Terry v. Ohio is an arrest which probable cause or consent must support to be valid. See United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir.1993) (“An encounter between police and an individual which goes beyond the limits of a Terry stop, however, may be constitutionally justified only by probable cause or consent.”).
An officer may “stop and frisk” an individual under the Fourth Amendment if a reasonably prudent person “in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry v. Ohio, 392 U.S. at 27 , 88 S.Ct. 1868 . “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry v. Ohio, 392 U.S. at 27 , 88 S.Ct. 1868 . A frisk “must ... be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Terry v. Ohio, 392 U.S. at 29 , 88 S.Ct. 1868 . In evaluating the validity of the stop-and-frisk, the totality of the circumstances must be considered. See Florida v. Bostick, 501 U.S. 429, 436 , 111 S.Ct. 2382 , 115 L.Ed.2d 389 (1991).
The Tenth Circuit has recognized the doctrine in Terry v. Ohio of an investigative detention — a “stop” — and of a protective search — a “frisk.”
Terry has come to stand for two distinct propositions — an investigative detention (“stop”) in which a police officer, for the purpose of investigation, may br

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7227960. Public record. Not legal advice.