# Dorato v. Smith

> District Court, D. New Mexico · May 26, 2015 · 108 F. Supp. 3d 1064

URL: https://www.frixlaw.com/law-library/cases/7231763

## Case

- **Full name:** Veronica DORATO, as Personal Representative of the Wrongful Death Claim of Daniel Tillison, estate of Daniel Tillison Bruce Thompson, as guardian ad litem for D.T. and J.T., minor children Maria Touchet, as guardian ad litem for I.M., a minor child and Mary Jobe v. Officer Martin SMITH, in his official and individual capacities John/Jane Doe Supervisor, in his/her official and individual capacities Albuquerque Police Department and City of Albuquerque
- **Court:** District Court, D. New Mexico
- **Decided:** May 26, 2015
- **Citations:** 108 F. Supp. 3d 1064; 2015 U.S. Dist. LEXIS 72888; 2015 WL 3540363
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Browning
- **Judges:** Browning
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7231763

## How later opinions describe it (automated extraction)

- finding that qualified immunity did not attach where plaintiff’s actions “indicate[d] that his manifest intent was to flee, not to harm [the officer]” and “a reasonable juror could conclude that [the officer] knew that [plaintiff] was holding a cellular telephone or at least k…
- noting that an officer’s own observations recorded under a duty to report are admissible under Federal Rule of Evidence 803(6)
- noting that several courts have held an officer has probable cause to arrest the driver of the vehicle for stealing the vehicle or knowingly operating a stolen vehicle if the vehicle has been reported stolen, citing cases
- discussing a video recreation of the scene

## Opinion text

MEMORANDUM OPINION AND AMENDED ORDER 1
JAMES O. BROWNING, District Judge.
THIS MATTER comes before the Court on Defendant Martin Smith’s Motion for Summary Judgment Requesting Dismissal of Plaintiffs’ Complaint on Qualified Immunity and Other Grounds, and Memorandum in Support, filed May 12, 2014 (Doc. ll)(“Motion”). The Court held a hearing on November 24, 2014. The primary is *1069 sues are: (i) whether the Court should deny the Motion or permit the Plaintiffs to conduct additional discovery pursuant to rule 56(d) of the Federal Rules of Civil Procedure; (ii) whether Plaintiffs Mary Jobe, D.T., J.T., and I.M. have standing to assert their loss of consortium claims; (iii) whether the Plaintiffs have standing to assert a seizure claim over the black Sports Utility Vehicle (“SUV”) that Daniel Tillison was driving when Defendant Martin Smith shot him; (iv) whether Smith seized Tillison before shooting him; (v) whether Smith had probable cause to arrest Tillison; (vi) whether Smith violated Tillison’s rights under the Fourth Amendment to the Constitution of the United States of America by using excessive force; (vii) whether Tillison’s rights were clearly established at the time; and (viii) whether the New Mexico Legislature waived Smith’s immunity under the New Mexico Tort Claims Act, N.M. Stat. Ann. § 41-4-1 (“NMTCA”).
Because additional discovery is not necessary for the Court to decide the Motion, the Court will deny the Plaintiffs’ rule 56(d) request. Jobe, D.T., J.T., and I.M. allege only state law claims, and, as such, they have standing. Because it is reasonable to infer that Tillison had a possessory interest in the SUV, the Plaintiffs have standing to argue that Smith seized the SUV. Smith did not, however, seize Tilli-son or the SUV before shooting Tillison, because Tillison never submitted to Smith’s authority. Additionally, Smith had probable cause to arrest Tillison. Smith used excessive force in shooting Til-lison, because it is disputed whether he could have believed that Tillison posed a threat of serious bodily harm to himself or to others. At the time of the shooting, it was clearly established that Smith could not use deadly force without a reasonable belief that Tillison posed a threat of serious bodily injury to himself or to others. Finally, because Smith had probable cause to arrest Tillison, the New Mexico Legislature has not waived his immunity under the NMTCA as far as it concerns the Plaintiffs’ false arrest and false imprisonment claims, but the Legislature has waived his immunity as it relates to the Plaintiffs’ assault and battery claims. Accordingly, the Court will grant the Motion in part and deny it in part. The Court will grant the Motion and dismiss Count I of the Complaint for Civil Rights Violations, filed in state court on March 14, 2014, filed in federal court on April 18, 2014 (Doc. 1-l)(“Complaint”), which concerns unlawful seizure. The Court will also dismiss the Plaintiffs’ false arrest and false imprisonment claims in Count III of the Complaint. The Court will deny Smith’s remaining requests in the Motion, including Smith’s request for the Court to dismiss Count II — which concerns excessive force — and to dismiss the Plaintiffs’ assault and battery claims in Count III.
FACTUAL BACKGROUND
“On or about March 19, 2012, Officer Martin Smith was wearing his uniform [and his] badge of office, and [he was] patrolling within his marked police vehicle during a day shift in the southeast area command of Albuquerque, NM.” Motion ¶ 1, at 1-2 (setting forth this fact). See Affidavit of Martin Smith ¶ 2, at 1, filed May 12, 2014 (Doc. ll-l)(“Smith Aff.”). 2 *1070 At approximately 1:08 p.m., Officer Smith was dispatched to a call which had been holding. The dispatch éntry from the call stated as follows:
31 [SUSPICIOUS] '. MALE PARKED. IN FRT [FRONT] NEAR COMM [COMMUNITY] MAILBOXES — SUBJ [SUBJECT] IN A BLK [BLACK] MITS [MITSUBISHI] MONTERO 568PTX [LICENSE PLATE # ] WAS TRYING TO SELL SOUND SYSTEM — POSS [POSSIBLY] 27-6 [STOLEN] ITEMS— REQTNG [REQUESTING] 34’S [OFFICERS] CHECK ON SUBJ [SUBJECT]
Motion ¶ 2, at 2 (setting forth this fact)(quoting Computer Aided Dispatch Detailed History of Police Call # P120790534 as of 4/9/2012 10:03:06 at 1, filed May 12, 2014 (Doc. ll-2)(“March 19, 2012, CAD’OXalterations in Motion but not in source). See Smith Aff. ¶ 3, at 1; March 19, 2012, CAD at l. 3 “According to the Computer Aided Dispatch (‘CAD’), Officer Smith was the only officer initially dispatched by the dispatcher to respond to this call.” Motion ¶ 3, at 2 (setting forth this fact). See Smith Aff. ¶ 4, at 1; March 19, 2012, CAD at l. 4
“After Officer Smith acknowledged that he was going to take the call, the dispatch *1071 er relayed to Officer Smith that there was some history with the suspect vehicle and she indicated that she would send information to him.” Motion ¶4, at 2 (setting forth this fact). See Smith Aff. ¶ 5, at 2; Real Time Recording of Dispatch Call, at 2:54-3:15, hand delivered to the Court on May 13, 2014, filed May 12, 2014 (Doc. 12)(“Real Time Recording”); Dispatch Recording Transcript at 2:16-20 (transcribed Apr. 21, 2014), filed May 12, 2014 (Doc. 11-3)(“Dispatch Tr.”); Response at 4 (not disputing this fact). “Officer Smith was then sent a CAD for call # P120730078 which was a BOLO (Be on the Lookout) for a black 2005 Mitsubishi Montero Sport with a New Mexico license plate of 568PTX which was reported stolen.” Motion ¶ 5, at 2 (setting forth this fact). See Smith Aff. ¶ 6, at 2; Computer Aided Dispatch Detañed History of Police Call # P120730078 as of 4/9/2012 10:05:23 at 1, filed May 12, 2014 (Doc. 11-4)(“March 13, 2012, CAD”). 5
The registered owner of the 2005 Mitsubishi Montero reported it stolen on March 13, 2015. See Motion ¶ 6, at 2 (setting forth unmodified fact); March 13, 2012, CAD at l. 6
*1072 The vehicle was not listed in [the National Crime Information Center, (“NCIC”),] as being stolen; however, there was no information that the vehicle had been recovered which led Officer Smith to believe that it still had not been located and returned to its owner so Officer Smith advised the dispatcher to alert other officers about this vehicle so that they could search for it as well.
Motion ¶ 7, at 3 (setting forth this fact). See Smith Aff. ¶ 7, at 2; Real Time Recording at 5:02-5:19; Dispatch Tr. at 3:11— 17. 7 “The dispatcher then broadcast over *1073 the air that the vehicle was last seen in the area of 8201 Marquette northeast; she gave a description of the vehicle and advised that it was reported stolen but was not in the system and it was unknown if it was recovered.” Motion ¶ 8, at 3 (setting forth this fact). See Smith Aff. ¶ 8, at 2; Real Time Recording at 5:21-6:01; Dispatch Tr. at 3:18-4:5. 8
“As Officer Smith approached the vicinity of Texas and Marquette, he began looking for a vehicle matching the description of the call since the dispatcher relayed that the vehicle was in the area of 8201 Marquette northeast near some community mailboxes.” Motion ¶ 9, at 3 (setting forth this fact). See Smith Aff. ¶ 9, at 2. 9 “As Officer Smith drove westbound on Marquette and approached Texas, he looked around this intersection for the vehicle and did not see it by any community mailboxes so he continued onto westbound Marquette.” Motion ¶ 10, at 3 (setting forth this fact). See Smith Aff. ¶ 10, at 2. 10
As Officer Smith continued driving westbound on Marquette, just west of Texas, he drove next to a small parking lot where he saw some community mailboxes, and as he was driving he just happened to see a vehicle which matched the description of the suspected stolen vehicle. He also observed the driver moving around inside of the vehicle.
Motion ¶ 11, at 3 (setting forth this fact). See Smith Aff. ¶¶ 10-12, at 2-3; Diagram of Parking Lot, filed May 12, 2014 (Doc. ll-l)(Exhibit A1 to the Smith Aff.) 11
*1074 Because Officer Smith had already partially driven by the parking lot as he was heading westbound, on Marquette, the driver of the Mitsubishi was in a position where he could have visibly seen Officer Smith drive by. Consequently, Officer Smith made the decision to turn into the parking lot and parked to the rear of the vehicle at a semi angle so as to block the vehicle to attempt to prevent the driver from fleeing the area.
Motion ¶ 12, at 3-4 (setting forth this fact). See Smith Aff. ¶ 13, at 3; Diagram of Parking Lot, filed May 12, 2014 (Doc. 11-l)(Exbibit A2 to Smith Aff.)(“Smith’s Diagram of the Parking Lot”). 12
Officer Smith had presumed that there would be other officers nearby in the area to assist since the dispatcher had relayed to other officers that the suspected stolen vehicle was in the area of 8201 Marquette so he informed dispatch that he would be out with the vehicle and that it was occupied.
Motion ¶ 13, at 4 (setting forth this fact). See Smith Aff. ¶ 15, at 3; Real Time Re *1075 cording at 9:44-9:48; Dispatch Tr. at SAT-IS. 13 “According to the CAD and the radio transmissions, the dispatcher did not actually dispatch another officer [A-325] to this location until after Officer Smith had already called out that he was with the vehicle and reported that it was occupied.” Motion ¶ 14, at 4 (setting forth this fact). See March 19, 2012, CAD at 1; Real Time Recording at 9:53-9:58; Dispatch Tr. at 5:20-22. 14 “After Officer Smith relayed to the dispatcher that he was with the suspect vehicle, he exited his marked police vehicle and approached the” driver’s side of the SUV. Motion ¶ 15, at 4 (setting forth unmodified fact). See Smith Aff. ¶ 17, at 4; Smith’s Diagram of the Parking Lot at l. 15
*1076 When Officer Smith approached the car, he had his firearm drawn in the low ready position since he was investigating a felony crime given that the vehicle in question had been reported as stolen. The vehicle was also located in a high crime area. The initial call also reported that there was a male who was trying to sell a sound system which was possibly stolen. It also concerned Officer Smith that the driver was moving around inside of the vehicle.
Motion ¶ 16, at 4-5 (setting forth this fact). See Smith Aff. ¶ 19, at 4; March 19, 2012, CAD at 1; Real Time Recording at 5:31-6:01; Dispatch Tr. at 3:22-5:5. 16 “Officer Smith identified himself as a police officer by announcing ‘Albuquerque Police’ and he then said: Let me see your hands; put your hands out the window.” Motion ¶ 17, at 5 (setting forth this fact). See Smith Aff. ¶ 20, at 4; Response at 6 (not disputing this fact). 17 The driver said something to Smith, but Smith does not recall what he said. See Response at 6 (setting forth this fact); Smith Aff. ¶ 20, at 4. 18
*1077 “Officer Smith told the driver to put his hands out of the window so that he could see both hands in order to ensure that he was not holding a weapon.” Motion ¶ 18, at 5 (setting forth unmodified fact). See Smith Aff. ¶ 21, at 4. 19
Instead of obeying Officer Smith’s commands, the driver of the vehicle continued moving around inside of the SUV and at one point looked back at Officer Smith and then reached down and then reached into the back of the vehicle. The driver’s actions in disobeying Officer Smith’s commands and in moving around the vehicle in this manner caused Officer Smith to have extreme concern that he was reaching for a weapon.
Motion ¶ 19, at 5 (setting forth this fact). See Smith Aff. ¶ 22, at 4-5. 20 “Based upon *1078 what Officer Smith had observed, he yelled at the driver: ‘Let me see your hands, let me see your hands. Put them out the window now/ The driver did not comply with these directives.” Motion ¶ 20, at 5 (setting forth this fact). See Smith Aff. ¶ 23, at 5. 21
At one point as the driver was moving around, the driver reached with his left hand and started opening the door so Officer Smith immediately pushed the door frame closed because he was concerned that the driver was going to come out of the vehicle with a weapon since the driver was moving and reaching around inside the vehicle and disobeying Officer Smith’s commands to show his hands.
Motion ¶ 21, at 5 (setting forth this fact). See Smith Aff. ¶ 24, at 5. 22
*1079 “After Officer Smith pushed the door closed, the driver ... put the vehicle into reverse so Officer Smith moved out of the way to avoid getting hit since he was standing just a few feet away from the driver’s side of the SUV.” Motion ¶ 22. At 6 (setting forth unmodified fact). See Smith Aff. ¶26, at 5. 23 “As the driver reversed the vehicle, the driver ... slammed the SUV into Officer Smith’s marked patrol car .... His actions in driving in this manner led Officer Smith to believe that he was attempting to flee the area.” Motion ¶ 23, at 6 (setting forth unmodified fact). See Smith Aff. ¶ 26, at 5; Diagram of Parking Lot During the Incident, filed May 12, 2014 (Doc. ll-l)(Exhibit A4 to Smith Aff.)(“Smith’s Diagram of the Parking Lot During the Incident”). 24 *1080 “When Officer Smith was attempting to move out of the way of the vehicle’s path, he started heading towards his vehi-cle____” Motion ¶24, at 6 (setting forth unmodified fact). See Smith Aff. ¶ 28, at 6; Smith’s Diagram of the Parking Lot During the Incident at l. 25
*1081 “Officer Smith fired a shot into the left rear tire of the Mitsubishi in an attempt to disable the vehicle....” Motion ¶25, at 6 (setting forth unmodified fact). See Smith Aff. ¶ 29, at 6; Diagram of Parking Lot After the Incident, filed May 12, 2014 (Doc. ll-l)(Exhibit A5 to ^ Smith Af£-)( Smith s Diagram of the Parking Lot After the' Incident”). 26 “The shot to the *1082 tire did not disable the vehicle____[Smith] then observed the driver move the vehicle forward.... ” Motion ¶ 27, at 7 (setting forth unmodified fact). See Smith Aff. ¶ 30, at 6. 27 “After the vehicle had moved forward, Officer Smith saw the vehicle reversing ... so he moved further west and to the north to back away from the vehicle .... ” Motion ¶ 28, at 7, (setting forth unmodified fact). See Smith Aff. ¶ 32, at 6-7; Smith’s Diagram of the Parking Lot After the Incident at l. 28 While the SUV *1083 was in motion, “Officer Smith saw that the driver had his left arm extended holding onto the steering wheel while he moved his right hand over his left arm.” Motion ¶ 29, at 7. See Smith Aff. ¶ 33, at 7. 29 “The driver had a black object in his right hand which he pointed at Officer Smith through the open window.” Motion ¶ 30, at 7 (setting forth this fact). See Smith Aff. ¶ 34, at 7. 30 “According to Officer Smith, the *1084 driver pointed this object in a ‘gangster style’ manner of aiming a gun.” Motion ¶ 31, at 7 (setting forth this fact). See Smith Aff. ¶ 34, at 7. 31
Given the following: (1) Officer Smith was dispatched to investigate a felony crime; (2) Officer Smith observed the driver moving around in the vehicle reaching down and into the back of the vehicle; (3) the driver disobeyed Officer Smith’s commands to show his hands; ... (5) the driver deliberately struck Officer Smith’s police vehicle ... in an effort to flee; (6) the driver continued to move the vehicle forward and back even after Officer Smith shot the rear tire; (7) the manner in which driver held the black object in his right hand and pointed it at Officer Smith through the open window, Officer Smith believed this black object was a gun so he fired a round at him.
Response at 7-8 (setting forth unmodified fact). See Smith Aff. ¶ 35, at 7. 32 Later investigation revealed that the object was a cellular telephone. See March 26, 2012, Interview at 6:2-5 (Smith).
“After firing the round, Officer Smith observed the driver fall back into his seat as the SUV continued reversing and pushing the truck over until it was hung up on the bumper and then came to a final rest.” Motion ¶ 33, at 8 (setting forth this fact). See Smith Aff. ¶ 38, at 8; Response at 8 (not disputing this fact). “Detective Michael Kleinfeld was dispatched as the lead criminalistics detective to process and document the scene of the shooting.” Motion ¶ 34, at 8 (setting forth this fact). See Affidavit of Michael Kleinfeld ¶3, at 1, filed May 12, 2014 (Doc. ll-6)(“Kleinfeld Aff.”). 33 “As part of his investigation, Detective Kleinfeld prepared diagrams labeled Al, A2, and A3 to Detective Klein- *1085 feld’s affidavit.” Motion ¶ 35, at 8 (setting forth this fact). See Kleinfeld Aff. ¶¶ 5, 6, & 8, at 2; Overhead Diagram of Apartments and Parking Lot, filed May 12, 2014 (Doc. ll-6)(Exhibit Al to Kleinfeld Afif.)(“Kleinfeld’s Overhead Diagram of Apartments and Parking Lot”); Diagram of Parking Lot During at Beginning of the Encounter, filed May 12, 2014 (Doc. 11-6)(Exhibit A2 to Kleinfeld Aff.)(“Klein-feld’s Diagram of Parking Lot During Initial Encounter”); Diagram of Parking Lot, filed May 12, 2014 (Doc. ll-6)(Exhibit A3 to Kleinfeld Aff.)(“Kleinfeld’s Diagram of Parking Lot After the Incident”). 34 “The diagram marked as Exhibit Al is a depiction of the overall overhead area of Pine Park Apartments in relation to where these apartments are situated on Marquette in between Texas and Tennessee streets. This diagram is not to scale.” Motion ¶ 36, at 8 (setting forth this fact). See Kleinfeld Aff. ¶ 5, at 2; Kleinfeld’s Overhead Diagram of Apartments and Parking Lot at l. 35
The diagram marked Exhibit A2[, Klein-feld’s Diagram of Parking Lot During Initial Encounter,] is a depiction of the overhead view of the parking lot area located on the south side of the apartment building. The vehicles depicted in the parking lot are general representations of where vehicles were parked in parking spaces at the time Officer Smith first arrived on scene. This' diagram is not to scale.
Motion ¶ 37, at 8-9 (setting forth this fact). See Kleinfeld Aff. ¶6, at 2; Kleinfeld’s Diagram of Parking Lot During Initial Encounter at l. 36
The diagram marked Exhibit A3[, Klein-feld’s Diagram of Parking Lot After the *1086 Incident,] is a depiction of the overhead view of the parking lot area located on the south side of the apartment building which documents the final resting place of the black Mitsubishi SUV, Officer Smith’s vehicle (Nil), a 2008 Dodge pickup truck which was parked just east of the black Mitsubishi, the position of Daniel Tillison’s body after he was removed from the Mitsubishi SUV and attended to by rescue personnel, the position of Officer George Trujillo’s police vehicle when he first pulled up on scene after the shooting, physical evidence located on scene, and a depiction of an estimation of where Officer Smith was positioned when he fired shots. This diagram is not to scale.
Motion ¶ 38, at 9 (setting forth this fact). See Kleinfeld Aff. ¶ 8, at 2; Kleinfeld’s Diagram of Parking Lot After the Incident at l. 37
“Officer Smith.has indicated on Exhibits A5, A6, and A7. to his affidavit of where he believes his approximate position was when he fired the shot a decedent Daniel Tillison.” Motion ¶ 39, at 9 (setting forth this fact). See Smith Aff. ¶¶ 36-37, at 7-8; Smith’s Diagram of the Parking Lot After the Incident at 1; Picture of Parking Lot from Smith’s Shooting Position Facing the SUV, filed May 12, 2014 (Doc. ll-l)(Exhibit A6 to Smith Aff.)(“Smith’s Picture From His Shooting Position”); Picture of Parking Lot from behind the SUV’s Open Door, filed May 12, 2014 (Doc. ll-l)(Exhibit A7 to Smith Aff.); Response at 8 (not disputing this fact). “The photographs labeled as Exhibit A8, Exhibit A9, Exhibit A10, Exhibit All, and Exhibit A12 [to Smith’s affidavit] depict damage to the Mitsubishi SUV, Officer Smith’s vehicle and to the silver 2008 Dodge pickup truck which was caused by the driver of the Mitsubishi SUV.” Motion ¶ 40, at 9 (setting forth this fact). See Kleinfeld Aff. ¶¶ 5, 6, & 8, at 2; Picture of Rear Right Tire of Vehicle, filed May 12, 2014 (Doc. ll-6)(Ex-híbit A8 to Kleinfeld Aff.); Picture of Patrol Car’s Front and SUV’s Back, filed May 12, 2014 (Doc. ll-6)(Exhibit A9 to Kleinfeld Aff.); Pictures of Front Left Side of the SUV, filed May 12, 2014 (Doc. ll-6)(Exhibit A10 to Kleinfeld Aff.)(“Kle-infeld’s Pictures of the Front Left Side of the SUV”); Pictures of the Trucks Rear Left Side, filed May 12, 2014 (Doc. 11-6)(Exhibit All to Kleinfeld Aff.); Pictures of the Truck’s Back, filed May 12, 2014 (Doc. ll-6)(Exhibit A12 to Kleinfeld Aff.); Response at 8 (not disputing this fact). 38 *1087 “From Detective Kleinfeld’s review of the autopsy report based upon his training and experience as a crime scene investigator, Mr. Tillisoris left arm was up and extended forward as though he was holding onto the steering wheel when he was shot.” Motion ¶ 42, at 10 (setting forth this fact). See Kleinfeld Aff. ¶20, at 4; Portion of Daniel Tillisoris Autopsy Report, filed May 12, 2014 (Doc. 11-6). 39
PROCEDURAL BACKGROUND
The Plaintiffs filed suit in state Court on March 14, 2014, see Complaint at 1, and the Defendants removed the case to federal court on April 18, 2014, see Notice of Removal, filed April 18, 2014 (Doc. 1). The Plaintiffs allege nine counts. Count I alleges that Smith violated Tillisoris Fourth Amendment right to be free from unreasonable seizure of himself and his black SUV. See Complaint ¶¶ 105-114, at 14-15. Count II alleges that Smith used excessive force in shooting Tillison. See Complaint ¶¶ 115-119, at 15-16. Count III alleges state-law tort claims against Smith, including assault, battery, false arrest, and false imprisonment. See Complaint ¶¶ 120-128, at 16. Count IV alleges that Defendant City of Albuquerque was negligent in hiring, training, supervising, and retaining Smith. See Complaint ¶¶ 129-132, at 17-18. Count V alleges a negligent assault and battery claim against the City of Albuquerque under a responde-at superior theory. See Complaint ¶¶ 133-137, at 18. Count VI alleges loss of consortium for I.M., the child of Plaintiff Mary Jobe, Tillisoris girlfriend/fiancé at the time of his death. See Complaint ¶ 5, at 2; id. ¶¶ 138-143 , at 18-19. Counts VII and VIII allege loss of consortium for D.T. and J.T., Jobe and Tillisoris children. See Complaint ¶¶ 4-5, at 2; id. ¶¶ 144-155 , at 19-20. Count IX alleges loss of consor *1088 tium for Jobe. See Complaint ¶¶ 156-161, at 20-21.
1. The Motion.
Smith filed the Motion on May 12, 2014. See Motion at 1. Smith argues that Jobe, D.T., J.T., and I.M. lack standing to bring federal claims on their own behalf and that, if they are bringing federal claims, the Court should dismiss them. See Motion at 10. He also argues that Tillison’s estate lacks standing to assert an unlawful seizure claim for the SUV, because Tillison had no possessory interest in it. See Motion at 10. Smith maintains that a plaintiff must assert his or her own legal rights and cannot rely on third parties’ rights. See Motion at 11 (citing Warth v. Seldin, 422 U.S. 490, 499 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975)). He contends that, to have standing in a 42 U.S.C. § 1983 action, a plaintiff must assert that he or she suffered a constitutional violation, and not that someone else suffered the wrong. See Motion at 11 (citing Archuleta v. McShan, 897 F.2d 495, 497 (10th Cir.1990); Dohaish v. Tooley, 670 F.2d 934, 936 (10th Cir.1982)). Smith argues that the Plaintiffs must show that he deprived their constitutional rights and not third parties’ rights. See Motion at 11 (citing Traujillo v. Board of Cnty. Comm’rs, 768 F.2d 1186 , 1190 (10th Cir.1985)).
Smith maintains that the Complaint does not contain any allegations showing that Jobe, D.T., J.T., or I.M. can assert a cause of action on their own behalf. See Motion at 12. He argues that Tillison was the only person involved in the incident. See Motion at 12. Smith also argues that Tillison was not the registered owner of the Mitsubishi Montero that was reported stolen six days before the shooting. See Motion at 12. Smith contends that, because Tillison did not lawfully possess the SUV, he lacked a privacy interest in it and, therefore, has no standing ■ to assert his seizure claim. See Motion at 12 (citing United States v. Worthon, 520 F.3d 1173, 1183 (10th Cir.2008)).
Smith contends that he is entitled to qualified immunity on Counts I and II. See Motion at 12. He asserts that, because he raised the issue of qualified immunity, the record must contain sufficient facts to rebut the presumption that he is entitled to immunity. See Motion at 12-13 (citing Medina v. Cram, 252 F.3d 1124, 1130 (10th Cir.2001)). Smith maintains that he did not seize Tillison until he shot him. See Motion at 14. Smith contends that, “ ‘[u]n-less an officer’s show of authority succeeds in restraining the person, the person has not been seized within the meaning of the Fourth Amendment.’ ” Motion at 14 (quoting Latta v. Keryte, 118 F.3d 693, 698 (10th Cir.1997)). Smith asserts that, when he ordered Tillison to show his hands and put them out the window, Tillison refused to comply with his instructions and attempted to flee. See Motion at 14-15. Smith contends that, even when he shot the SUV’s rear tire, he did not seize Tillison, because the shot did not cause Tillison to stop. See Motion at 15 (citing Bella v. Chamberlain, 24 F.3d 1251, 1256 (10th Cir.1994)).
Smith argues that, even if he seized Tillison, he had reasonable suspicion and probable cause to do so. See Motion at 15. He contends that he received information through the CAD that a male in a black Mitsubishi Montero was possibly attempting to sell a stolen sound system. See Motion at 17. Smith also contends that he had information that the vehicle had been reported stolen and that it was in a high crime area. See Motion at 17 (citing Gallegos v. City of Colorado Springs, 114 F.3d 1024 (10th Cir.1997)). He maintains that, based on the totality of the circumstances, he had reasonable suspicion to stop and detain the SUV’s driver. See Motion at 17.
*1089 Smith contends that he acted reasonable in approaching the SUV with his firearm drawn and in the low-ready position as he made contact with the driver. See Motion at 17. He asserts that, because police officers are not required to take unnecessary risks in performing their duties, they may take reasonably necessary steps to protect their personal safety and to maintain the status quo during the course of an investigatory stop. See Motion at 17 (citing United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir.1993)). Smith states that the use of firearms, handcuffs, and other forceful techniques during an investigatory stop does not transform the stop into a custodial arrest, if the circumstances reasonably warrant such measures. See Motion at 17 (citing United States v. Melendez-Garcia, 28 F.3d 1046, 1052 (10th Cir.1994)). He contends that, because he was investigating a felony crime in a high crime area, and because he observed Tillison moving around inside the SUV, Tillison posed an immediate threat that warranted Smith partially blocking the SUV with his patrol vehicle and drawing his firearm. See Motion at 18. Smith asserts that, in Henry v. Storey, 658 F.3d 1235, 1239 (10th Cir.2011), the United States Court of Appeals for the Tenth Circuit held that an officer did not use excessive force by pointing his weapon at a person whom the officer had probable cause to believe stole a vehicle. See Motion at 18. Smith also asserts that, in Thomas v. Durastanti, 607 F.3d 655, 668 (10th Cir.2010), the Tenth Circuit held that a reasonable officer could believe that it was necessary to display weapons when an undercover agent observed the occupants of a vehicle drive away from a high crime area, in a stolen vehicle, and in a reckless manner. See Motion at 18-19.
Smith argues that he had an objectively reasonable basis to seize and arrest Tilli-son. See Motion at 19. Smith contends that the dispatcher told him that the vehicle was stolen and that there was no information that it had been recovered. See' Motion at 19. He also contends that he observed an occupant inside the vehicle. See Motion at 19. Smith maintains that he had probable cause to believe that the vehicle was stolen. See Motion at 19. He argues that, when Tillison backed up the vehicle and nearly hit him with it, and when Tillison crashed the vehicle into Smith’s patrol vehicle and into the truck, there was probable cause to arrest Tillison for a number of crimes, including Aggravated Assault against a Police Officer, Assault against a Police Officer, Attempted Aggravated Assault against a Police Officer, Aggravated Assault, Attempted Aggravated Assault, Assault, Criminal Damage to Property, Resisting and Evading Arrest, and Refusing to Obey. See Motion at 19-20.
Concerning the Plaintiffs’ excessive force claim, Smith asserts that excessive' force is judged from the perspective of a reasonable officer and that the Court should consider a number of factors, including (i) the severity of the crime; (ii) whether the suspect posed an immediate threat to the safety of the officer or others; and (iii) whether the suspect was actively resisting arrest or attempting to evade arrest. See Motion at 20 (citing Graham v. Connor, 490 U.S. 386, 396-97 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989)). He asserts that deadly force is justified if a reasonable officer in his position would have probable cause to believe that there was a threat of serious physical harm to himself or to others. See Motion at 20 (citing Sevier v. City of Lawrence, 60 F.3d 695, 699 (10th Cir.1995)). Smith contends that his assessment of danger did not have to be correct, but only reasonable. See Motion at 20-21. .He states that an officer’s conduct preceding the use of force is relevant, because an officer’s own recklessness or deliberate conduct may create the need *1090 for the force. See Motion at 21-22. Smith contends that the Tenth Circuit uses a non-exclusive list of factors to assess the threat facing an officer: (i) whether the officer ordered the suspect to drop a weapon and whether the suspect complied; (ii) whether the suspect made any hostile motions with a weapon towards the officer; (iii) the distance separating the officer and the suspect; and (iv) the suspect’s intentions. See Motion at 22 (citing Estate of Larsen ex rel Sturdivan v. Murr, 511 F.3d 1255, 1260 (10th Cir.2008)).
Smith argues that, based on the totality of the circumstances — which include Tilli-son moving around in the vehicle, nearly hitting Smith with the vehicle, moving the vehicle back and forward, and pointing a black object at Smith — his actions in shooting Tillison were objectively reasonable. See Motion at 22-23. Smith contends that a reasonable officer in his position would have had probable cause to believe that Tillison posed a serious threat of physical harm. See Motion at 23. Smith asserts that, even though the vehicle was found to be in reverse after the shooting, the vehicle’s threat was still present, because Tillison could have easily put the vehicle in drive and drove it into Smith within a split second. See Motion at 23 (citing Thomas v. Durastanti, 607 F.3d at 665 ; Waterman v. Batton, 393 F.3d 471, 479 (4th Cir.2005)).
Smith asserts that his conduct immediately preceding the shooting did not rise to the level of recklessness. See Motion at 24. He contends that he parked his patrol vehicle in a manner that partially blocked the SUV, because he was looking for a stolen vehicle that he saw in the parking lot, and because he could not conceal his presence in the area. See Motion at 24. Smith maintains that he informed the dispatcher where the vehicle had last been seen, even though the dispatcher did not send another officer to assist him until after he parked behind the Mitsubishi. See Motion at 24. Smith states that, as he approached the vehicle, he stayed to its side and that he “did not jump out in front of the car.” Motion at 24. He asserts that he moved into the adjacent parking space as Tillison reversed the SUV and almost hit him. See Motion at 24. Smith argues that Tillison’s deliberate and reckless conduct created the danger. See Motion at 24.
Smith contends that the clearly established law on March 19, 2012, would not have put him on notice that his conduct amounted to a constitutional violation. See Motion at 25. He argues that Thomas v. Durastanti demonstrates that his behavior was reasonable under the totality of the circumstances. See Motion at 25 (citing Thomas v. Durastanti, 607 F.3d at 655 ). Smith maintains that there was no clearly established law that would have put him on notice that Tillison was seized when he did not submit to Smith’s authority. .See Motion at 26 (citing California v. Hodari D., 499 U.S. 621, 625-26 , 111 S.Ct. 1547 , 113 L.Ed.2d 690 (1991)). He also maintains that there was no clearly established law that would have put him on notice that approaching a stolen vehicle, with his weapon drawn in low-ready position, and shooting the vehicle’s tire was unreasonable. See Motion at 26 (citing Henry v. Storey, 658 F.3d at 1239 ; Bella v. Chamberlain, 24 F.3d at 1256 ).
Smith argues that the New Mexico Legislature has not waived his immunity under the NMTCA. See Motion at 26. He asserts that § 41-4-12 sets forth specific torts for which law enforcement officers’ immunity is waived. See Motion at 26 (citing N.M. Stat. Ann. § 41-4-12 ). Smith argues that his immunity has not been waived, because his actions were lawful, and because he had reasonable suspicion and probable cause to detain and arrest *1091 Tillison. See Motion at 26-27 (citing Santillo v. N.M. Dep’t of Pub. Safety, 2007-NMCA-159, ¶¶ 12-14 , 143 N.M. 84 , 173 P.3d 6 ; Romero v. Sanchez, 1995-NMSC-028 , 119 N.M. 690 , 895 P.2d 212 ; Mead v. O’Connor, 1959-NMSC-077 , ¶ 4, 66 N.M. 170 , 344 P.2d 478 ).
2. The Response.
The Plaintiffs responded to the Motion on July 9, 2014. See Motion at 1. The Plaintiffs argue that the Smith Aff. contradicts many statements he made in the March 20, 2012, Interview, and in the March 26, 2012, Interview. See Response at 1-2. They contend that Smith had a better recollection of the shooting the day afterwards than two years later. See Response at 2. The Plaintiffs state that Smith drafted the Smith Aff. with counsel’s help and after conferring with other officers to “elaborately compose a story which would benefit them in the litigation of this matter.” Response at 2. The Plaintiffs assert that Smith’s contradictions matter, because they give the Court the ability to sanction Smith for providing false statements, and because they show that the Court should allow the Plaintiffs to conduct discovery. See Response at 2 (citing Chavez v. City of Albuquerque, 402 F.3d 1039 (10th Cir.2005); Conder v. A.L. Williams & Assocs., 739 P.2d 634 , 641 n. 1 (Utah Ct.App.1987)). The Plaintiffs argue that Smith’s contradictory statements create credibility issues that a jury, and not a judge, should resolve. See Response at 3 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986)). They contend that the Supreme Court of the United States of America and the Tenth Circuit have reversed a district court’s granting of summary judgment when the district court relied on affidavits from witnesses whom the nonmovant did not have an opportunity to cross examine. See Response at 3-4 (citing Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 472-74 , 82 S.Ct. 486 , 7 L.Ed.2d 458 (1962); Adams v. Campbell Cnty. Sch. Diet, 483 F.2d 1351, 1353 (10th Cir.1973)).
The Plaintiffs argue that summary judgment is inappropriate if more discovery is needed. See Response at 9. They contend that they should have the opportunity to cross examine Smith and to obtain mental-health evaluations about Smith’s disability rating from the Veteran’s Administration (“VA”), because of his post-traumatic stress disorder (“PTSD”). Response at 9. The Plaintiffs assert that, under rule 56(d) of the Federal Rules of Civil Procedure, they should be permitted to conduct discovery. See Response at 10. They contend that, pursuant to rule 56(d), the Court should deny the Motion, defer ruling on it, allow time for discovery, or grant other appropriate relief. See Response at 10.
The Plaintiffs maintain that Jobe, D.T., J.T., and I.M. have standing, because they have brought loss of consortium claims. See Response at 11. They contend that, because D.T. and J.T. are Tillison’s biological children, they are Tillison’s only statutory beneficiaries, and, thus, they have standing to bring claims on behalf of Tilli-son’s estate. See Response at 11. The Plaintiffs maintain that a person’s estate has standing to bring a § 1983 claim on his or her behalf. See Response at 11-12 (citing Berry v. City of Muskogee, 900 F.2d 1489, 1506-07 (10th Cir.1990)). The Plaintiffs also assert that it is disputed whether Tillison was driving a stolen vehicle or whether he had permission to drive the vehicle. See Response at 12.
The Plaintiffs argue that the Supreme Court, the Tenth Circuit, and New Mexico law make clear that a reasonable officer would have known that it was unconstitutional for Smith to shoot Tillison when he posed no threat to Smith or to the public. See Response at 13. They first argue that *1092 Smith seized Tillison. See Response at 13. They contend that Smith lacked reasonable suspicion or probable cause to seize Tillison. See Response at 13. The Plaintiffs assert that Smith was dispatched to investigate a suspicious person and that there was no report that anything was stolen, including the vehicle, because the NCIC showed that it was not stolen. See Response at 13. They contend that Smith had no probable cause that Tillison committed a crime, and that Tillison was merely sitting in his car in a parking lot and talking on the telephone, when Smith approached with his gun drawn and began yelling commands at Tillison. See Response at 13. The Plaintiffs assert that Smith’s stop was a felony stop, which is more serious than an investigatory stop, because it involves aggressively extracting a vehicle’s occupant at gunpoint, and handcuffing him or her on the ground. See Response at 13 (citing Albuquerque Police Department Procedural Orders at 2 (dated Nov. 4, 2011), filed July 9, 2014 (Doc. 31-5)(“APD Motor Vehicle SOP”)).
The Plaintiffs argue that, by pulling his patrol car against Tillison’s bumper, Smith’s conduct was excessive in light of what Smith knew at the time of the stop and that Smith escalated the situation before making contact with Tillison. See Response at 14. The Plaintiffs state that, if Smith was so afraid that he needed to conduct a felony stop by blocking Tillison’s vehicle and approach with his gun drawn, he should have called for backup rather than escalating the situation. See Response at 14 (citing Sevier v. City of Lawrence, 60 F.3d at 699-701 ). They contend that, in Zia Trust Co. ex rel. Causey v. Montoya, the defendant-officer rushed up to a van with his gun drawn and without backup, because the defendant-officer believed that a domestic violence suspect was driving the van. See Response at 14. The Plaintiffs assert that, there, the Tenth Circuit held that the defendant-officer’s use of deadly force was unreasonable when he shot the van’s driver as the driver tried to drive the van at the officer, but it was stuck on a pile of rocks and could only move about one foot. See Response at 14.
The Plaintiffs maintain that Smith seized Tillison when he blocked his vehicle and approached the vehicle with his weapon drawn. See Response at 14-15. They contend that, if a police-citizen encounter exceeds the limits of an investigatory detention, the encounter becomes an arrest for which the officer needs probable cause. See Response at 15 (citing United States v. Rodriguez-Rodriguez, 550 F.3d 1223, 1227 (10th Cir.2008)). The Plaintiffs maintain that, when Smith approached Tillison, he posed no threat to Smith and did not attempt to communicate with Smith. See Response at 15. They contend that the test for determining whether a person is seized is whether, considering all the circumstances, the police’s conduct would have communicated to a reasonable person that he or she was not free to decline the officer’s requests to terminate the encounter. See Response at 16 (citing Lund-strom v. Romero, 616 F.3d 1108, 1119 (10th Cir.2010)). The Plaintiffs contend that, because Tillison did not pose a threat, and because Smith escalated the situation, Smith’s actions were not reasonable to justify Tillison’s seizure, and that Smith’s de facto arrest of Tillison violated his Fourth Amendment rights. See Response at 16.
The Plaintiffs argue that Smith’s reliance on United States v. Albert and United States v. Holt is misplaced, because both cases involve traffic stops, which did not occur here. See Response at 16. They contend that a traffic stop presumably involves a subject first committing a traffic violation, which satisfies the probable cause standard; here, however, Tillison was merely sitting in a parked ear and had allegedly offered to sell stereo equipment, *1093 which was later determined to not be stolen. See Response at 16. The Plaintiffs argue that, at most, Smith should have done an investigatory detention, which he did not do. See Response at 16. They contend that Smith’s subjective belief whether there was probable cause is irrelevant, because the test is an objective one. See Response at 17 & n. 2. They also contend that it is irrelevant whether Tilli-son would have been charged with a crime, because the analysis focuses on what Smith knew at the time of the initial seizure. See Response at 17.
The Plaintiffs argue that Smith’s failure to warn Tillison that he intended to use deadly force was presumptively unreasonable. See Response at 17. They assert that the man who was talking with Tillison on the telephone heard Smith yell “show me your hands,” and heard Tillison reply, “why? I didn’t do nothing wrong.” Response at 17 n. 3 (alterations omitted). The Plaintiffs contend that they should be able to cross examine Smith about this statement. See Response at 17. They state that Smith did not give Tillison any reason why he blocked his car, why he pointed a gun at him, or why he ordered him to put his hands up. See Response at 17-18. The Plaintiffs argue that Smith could see Tillison’s hands during various times of the encounter, and that Smith was between five and ten feet away from Tilli-son when he shot him. See Response at 18. They state that Smith did not know what was in Tillison’s right hand and argue that, “[i]f we allow officers to believe that they are justified in shooting someone without any basis that the person is actually armed we are living in a country that no longer acknowledges the foundations upon which the Fourth Amendment was founded.” Response at 18. The Plaintiffs maintain that, when Smith shot Tillison, he was not an immediate threat to Smith or to the public. See Response at 18.
The Plaintiffs contend that, in Tennessee v. Garner, 471 U.S. 1 , 105 S.Ct. 1694 ; 85 L.Ed.2d 1 (1985), the Supreme Court held that, if a fleeing suspect does not pose an immediate threat to the officer or to others, the harm of failing to apprehend the suspect does not justify the use of deadly force. See Response at 18. They argue that deadly force is not justified unless, where feasible, a warning is given. See Response at 18 (citing Harris v. Roderick, 126 F.3d 1189, 1201 (9th Cir.1997)). The Plaintiffs argue that, before shooting Tillison, Smith did not warn Tillison that he would use deadly force, even though it was feasible for him to give a warning. See Response at 18. They contend that, while Tillison may have been trying to flee, Stewart’s report shows that Tillison’s vehicle never made any attempt to drive toward Smith. See Response at 18.
The Plaintiffs maintain that Smith’s shooting of Tillison was objectively unreasonable. See Response at 19 (citing Graham v. Connor, 490 U.S. at 397 , 109 S.Ct. 1865 ). They assert that Smith’s subjective and speculative fear about what might occur cannot justify his use of deadly force. See Response at 19 (citing Curley v. Klem, 298 F.3d 271, 280 (3d Cir.2002)). The Plaintiffs contend that Smith killed Tillison either out of an anticipated or accidental response to a PTSD flashback. See Response at 19. They argue that it was unreasonable for Smith to so quickly use deadly force before backup had an opportunity to arrive. See Response at 19. The Plaintiffs contend that Smith was not in immediate danger of being hit and that he did not know what Tillison had in his hand. See Response at 19. They assert that Smith’s only remaining justification for shooting Tillison was that Tillison was trying to leave the parking lot. See Response at 19-20.
The Plaintiffs argue that, in Cordova v. Aragon, 569 F.3d 1183 (10th Cir.2009), the *1094 Tenth Circuit held that a motorist’s fleeing from police, without more, is insufficient to justify the use of deadly force. See Response at 20. They argue that, there, the suspect was driving in the wrong direction on a highway and struck various objects before a police officer got in front of the suspect and shot him as he passed. See Response at 20. The Plaintiffs assert that the Tenth Circuit held that the officer was not justified in shooting the driver merely because there was a remote and speculative possibility that the driver may put someone else in danger. See Response at 20.
The Plaintiffs argue that a state court found that a different Albuquerque Police Department (“APD”) officer used unreasonable force in shooting a fleeing suspect and found that APD’s deadly force training is not reasonably designed. See Response at 21 (citing Higgins v. City of Albuquerque, No. CIV 2009-0915 (N.M.2d Jud. Dist.)). They attempt to distinguish Estate of Larsen ex rel Sturdivan v. Murr by arguing that Tillison was not armed, that the SUV rolled backwards after Smith shot Tillison, that Tillison’s cellular telephone is less than five inches long, and that Smith was never in Tillison’s path. See Response at 21. The Plaintiffs argue that, immediately after Smith shot Tillison, he called dispatch and told them that he shot Tillison because Tillison tried to run over him. See Response at 21. They state that Smith did not mention that he believed that Tillison had a gun until the March 20, 2012, interview. See Response at 21.
The Plaintiffs argue that Smith violated APD’s standard operating procedures (“SOPs”). See Response at 22 (citing Albuquerque Police Department Procedural Orders, Use of Force (dated Apr. 20, 2009), filed April 18, 2014 (Doc. 1-2)(“APD Use of Force SOP”)). They contend that APD’s SOPs require officers, where feasible, to give a warning before using deadly force and state that, if a motor vehicle is bearing down on an officer, the officer should not fire at the vehicle, but should attempt to move out of its path. See Response at 22. The Plaintiffs quote the conclusions of their police procedures expert, Melvin Tucker, where he opines that Smith’s use of force was unreasonable. See Response at 22-23 (citing Expert Report of Melvin L. Tucker at 4-7, filed July 9, 2014 (Doc. 31-6)(“Tucker Report”)). The Plaintiffs argue that Smith’s reckless conduct caused Tillison’s death and the need to use deadly force. Response at 23. The Plaintiffs also assert that the Department of Justice found that Smith was not justified in shooting Tillison. See Response at 23 (citing Letter to Mayor Richard J. Berry from Jocelyn Samuels, Acting Assistant Attorney General, DOJ Civil Rights Division, and Damon P. Martinez, Acting United States Attorney, District of New Mexico (dated April 10, 2014) (“DOJ Letter”)). 40
*1095 The Plaintiffs argue that, even if the Court dismisses their federal claims, the New Mexico Legislature has waived Smith’s NMTCA immunity. 41 They assert that New Mexico courts can interpret the New Mexico Constitution more broadly than the Constitution of the United States, but that New Mexico courts do not analyze a case under state constitutional law if the federal Constitution provides full protection. See Response at 24 (citing State v. Wagoner, 2001-NMCA-014 , 130 N.M. 274 , 24 P.3d 306 ). The Plaintiffs maintain that Smith’s conduct violated both the New Mexico and United States constitutions. See Response at 24. They contend that the New Mexico Constitution provides greater protection than the United States Constitution.- See Response at 24 (citing *1096 State v. Gomez, 1997-NMSC-006 , 122 N.M. 777 , 932 P.2d 1 ). The Plaintiffs argue that, because Smith’s seizure of Tilli-son was illegal, he does not have immunity under the NMTCA. See Response at 24 (citing N.M. Stat. Ann. § 41-4-12 ).
3. The Reply.
Smith replied to the Response on August 20, 2014. See Reply at 1. Smith argues that his March 20, 2012, and March 26, 2012, interviews do not contradict the Smith Aff. See Reply at 1. Smith asserts that homicide detectives, and not Internal Affairs officers, conducted the interviews and that his statements during the interviews were not sworn. See Reply at 1 n. 1. He contends that the Plaintiffs are not entitled to cross examine affiants and that the Supreme Court regularly permits summary judgment based on affidavits when qualified immunity is raised. See Reply at 1-2 (citing Mitchell v. Forsyth, 472 U.S. 511, 526 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985); Siegert v. Gilley, 500 U.S. 226, 231 , 111 S.Ct. 1789 , 114 L.Ed.2d 277 (1991)).
Smith argues that his mental health is not at issue in the case, because he is not relying on a physical, mental, or emotional condition as a defense. See Reply at 10. He argues that, in Estate of Turnbow v. Ogden City, 254 F.R.D. 434 (D.Utah 2008) (Warner, M.J.), the Honorable Paul M. Warner, United States Magistrate Judge for the District of Utah, reiterated that the Supreme Court has recognized a psychotherapist-patient privilege and that mental health records are normally protected from discovery. See Reply at 10. Smith contends that the Plaintiffs have not shown how his mental health records are relevant or essential to responding to the Motion. See Reply at 10-11. He maintains that, when a defendant raises qualified immunity, the Court should stay discovery until it resolves the qualified-immunity issue and that the Court should narrowly tailor any discovery it allows. See Reply at 10-11.
Smith argues that Jobe’s, D.T.’s, J.T.’s, and I.M.’s loss of consortium claims are individual claims, and not claims that Tilli-son’s estate is bringing on its behalf. See Reply at 11. He argues that, while Jobe, D.T., J.T., and I.M. may be beneficiaries of Tillison’s estate, they cannot assert claims on their own behalf by asserting that the claims are brought on the estate’s behalf. See Reply at 11 (citing Warth v. Seldin, 422 U.S. at 499 , 95 S.Ct. 2197 ; Dohaish v. Tooley, 670 F.2d at 936 ). Concerning the SUV, Smith argues that the Plaintiffs have not submitted any evidence showing that Tillison owns the SUV or that he had permission to drive it. See Reply at 11. Smith maintains that Tillison lacks standing to assert a constitutional violation with respect to the SUV. See Reply at 11 (citing United States v. Worthon, 520 F.3d 1173, 1183 (10th Cir.2008)).
Smith maintains that the Plaintiffs fail to present any facts showing that Tillison submitted to his authority before being shot, which would establish that Smith seized Tillison. See Reply at-12. Smith contends that the Plaintiffs must show that he actually restrained Tillison. See Reply at 12. Smith states that the Plaintiffs’ own expert, Stewart, opines that the vehicle did not come to a stop until after Smith shot Tillison. See Reply at 12. Smith argues that, without a showing that Tilli-son submitted to authority, there was no seizure. See Reply at 12.
Smith argues that the Plaintiffs ignore the facts which the dispatcher told him, including that the person in a black Mitsubishi Montero was possibly trying to sell stolen goods, that the vehicle had been reported stolen, and that it was not listed as being recovered. See Reply at 13. He contends that this information gave him reasonable suspicion to investigate further. See Reply at 13. Smith argues that the Court cannot rely on the Plaintiffs’ argu *1097 ment that he violated an SOP to establish a constitutional violation. See Reply at 13 (citing Tanberg v. Sholtis, 401 F.3d 1151, 1159 (10th Cir.2005)). He contends that the Plaintiffs’ statement that he parked his patrol car against the SUV’s bumper lacks support in the record and is contrary to evidence which the Plaintiffs provided. See Reply at 13.
Smith argues that he did not have to conduct an investigation before approaching the vehicle, because he did not need to take unnecessary risks, and because he faces a real threat each time he approaches an occupied vehicle. See Reply at 14. Smith argues that Zia Trust Co. ex rel. Causey v. Montoya is distinguishable, because that incident occurred at night, and because the officer in that case was not investigating a felony. See Reply at 14. Smith also argues that the officer in Zia Trust Co. ex rel. Causey v. Montoya did not announce that he was a police officer, the officer walked directly in front of the van with his gun drawn as he first approached the. vehicle, and the van moved forward less than one foot. See Reply at 14-15. Smith contends that, here, he was investigating a felony, he announced that he was a police officer, and Tillison’s vehicle continuously moved. See Reply at 14-15. Smith asserts that he had probable cause, because Tillison disobeyed his orders, because Tillison tried to hit him with the SUV, and because Tillison rammed other vehicles with the SUV. See Reply at 15.
In addressing the 'Plaintiffs’ reference to the DOJ Letter, Smith argues that the letter does not have preclusive effect. See Reply at 15 n. 4 (citing Shaffer v. R.J. Reynolds Tobacco Co., 860 F.Supp.2d 991, 999 (D.Ariz.2012) (Zapata, J.); Pooshs v. Philip Morris USA, Inc., 904 F.Supp.2d 1009, 1034 (N.D.Cal.2012) (Hamilton, J.); In re Light Cigarettes Mktg. Sales Practices Litig., 691 F.Supp.2d 239 (D.Me.2010) (Woodcock, Jr., C.J.)). Smith argues that he had no duty to warn Tillison before using deadly force. See Reply at 15 (citing Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1321 (10th Cir.2009)). He contends that the amount of force he used was not excessive, even though he learned after-wards that Tillison was not armed. See Reply at 15-16 (citing Blossom v. Yar-brough, 429 F.3d 963, 968 (10th Cir.2005)).
Smith asserts that Tucker’s report contains material omissions and improper conclusions. See Reply at 16. He contends that Tucker fails to mention that Tillison was moving around inside the vehicle, reaching into the back of the vehicle, disobeying multiple commands to put his hands out the window, and attempting to flee by colliding with Smith’s patrol car and the truck. See Reply at 16-17. Smith argues that Tucker fails to state that the reason Smith shot the vehicle’s tire was because Tillison almost ran over Smith with the vehicle, and because Smith was directly in the vehicle’s path. See Reply at 17. Smith contends that Tucker makes conclusory statements and inferences that are irrelevant, and the requisite legal standards do not support them. See Reply at 17. For those reasons, Smith maintains that the Court should disregard Tucker’s report. See Reply at 17 (citing Medina v. Cram, 252 F.3d at 1133 ).
4. The November 24, 2014, Hearing.
The Court held a hearing on November 24, 2014. See Transcript of Hearing (taken Nov. 24, 2014)(“Tr.”). 42 Smith largely repeated his arguments from the briefing in regards to the standing and seizure *1098 issues. See Tr. at 4:2-5:24 (Griffin). Smith asserted that it is undisputed that Tillison drove the SUV backwards and forwards. See Tr. at 5:25-6:17 (Griffin). He stated that “the only time that [he is] contending that the vehicle itself was the deadly threat to officer Smith was when [Tillison] backed it up the first time and collided into officer Smith’s police vehicle, and almost hit officer Smith.” Tr. at 6:17-22 (Griffin). Smith stated that, when he “did end up using deadly force at Mr. Till[ison], it was the black object in which Mr. Tillfison] held out in ... a gangster style type manner of holding a firearm, that caused him to ... reasonably believe that it was a firearm and that he was about to get shot.” Tr. at 7:1-7 (Griffin). Smith contended that the vehicle was still a component of the deadly threat, because he had to make a split-second decision. See Tr. at 7:10-17 (Griffin). Smith repeated his arguments from the briefing concerning whether he had probable cause or reasonable suspicion. See Tr. at 7:17-8:20 (Griffin). He asserted that this case is more similar to Thomas v. Durastanti than Zia Trust Co. ex rel. Causey v. Montoya, because he identified himself as an officer, he did not jump in front of the SUV, the SUV was not disabled, the situation was rapidly evolving, and he perceived a threat that he thought was a firearm. See Tr. at 8:21-9:9 (Griffin).
The Court said that, when Smith called into dispatch and reported that there were shots fired, he stated that Tillison had attempted to run him over, suggesting that threat was the reason Smith shot Tillison. See Tr. at 9:19-24 (Court). The Court asked Smith if he was still asserting that he shot Tillison because Tillison tried to run over him. See Tr. at 9:23-24 (Court). Smith responded by stating that, during the dispatch call, he was trying to give a description of what happened, which included Tillison nearly running him over, but that the reason he used deadly force was because Tillison was holding a black object that could have reasonably been perceived to be a firearm. See Tr. at 9:25-10:9 (Griffin). Smith argued that the vehicle presented a secondary threat and that, while the vehicle was going in reverse when he shot Tillison, had Smith not shot Tillison, there is nothing that would have prevented Tillison from quickly changing direction. See Tr. at 10:10-19 (Griffin). Smith maintained, however, that “the actual deadly threat was the black object at the moment that the deadly force was” used. Tr. at 10:19-21 (Griffin).
The' Court asked Smith if there is a factual dispute why he shot Tillison, because he told the dispatcher that Tillison nearly ran him over, but now he is arguing that it was because of the cellular telephone. See Tr. at 11:2-9 (Court). Smith maintained that the dispatch call was merely a description of what happened, and not the reason for why he fired his gun, and that the reason he shot Tillison was because Tillison had a black object in his hand. See Tr. at 11:10-21 (Griffin). Smith stated that, at the time, he did not know which direction the vehicle was traveling, but that, for the Motion, the Court can assume that it was traveling in reverse. See Tr. at 11:21-12:6 (Griffin). Smith contended that he mentioned the black object during his interview with the homicide detectives, but that he is not sure if he mentioned it during his interview with internal affairs, because his counsel had not reviewed the transcript of the internal affairs interview. See Tr. at 12:22-13:11 (Griffin). Smith clarified that, when he stated that Tillison held the black object “gangster style,” he means that, if the object were a gun, Tillison would have been holding in a manner so that it was turned sideways. Tr. at 14:12-15:12 (Carpenter, Griffin, Court).
*1099 The Plaintiffs responded by stating that Jobe, D.T., J.T., and I.M. have brought loss-of-consortium claims, which they have standing to bring. See Tr. at 16:14-25 (Carpenter). The Plaintiffs clarified that Jobe’s, D.T.’s, J.T.’s, and I.M.’s claims are all state law claims, and not federal ones. See Tr. at 17:4-19 (Carpenter, Court). The Plaintiffs argued that Smith has made a number of contradictory statements, including that he initially told the dispatcher that he shot Tillison because Tillison almost ran him over, but now he is arguing that he shot him because of the black object. See Tr. at 18:14-19:20 (Carpenter). The Plaintiffs maintained that this contradiction creates a genuine issue of material fact. See Tr. at 20:13-21:1 (Carpenter, Court). The Court asked the Plaintiffs whether both statements could be true-that Smith shot Tillison because Tilli-son tried to run him over and because Tillison had a black object in his hand. See Tr. at 21:3-18 (Court). The Plaintiffs responded by stating that, when there are contradicting statements or credibility issues, the Court should let a jury decide the issues and not a judge. See Tr. at 21:19-23:2 (Carpenter). When the Court said that, because both statements can be true without having to make a credibility determination, the Plaintiffs argued that the two statements still create a factual issue that precludes summary judgment and that they should have the opportunity to cross examine Smith about them. See Tr. at 23:2-24:3 (Carpenter, Court). The Plaintiffs argued that, even though Smith told the homicide detectives about the black object the day after the shooting, he said that he did not know what was in Tillison’s hand. See Tr. at 24:25-25:22 (Carpenter, Court).
They contended that a police officer cannot use deadly force, based on an object in someone’s hand, before definitively determining what is in the person’s hand. See Tr. at 25:23-26:4 (Carpenter, Court). The Court said that it agrees that a police officer is not justified in using deadly force just because a person has a cellular telephone in his or her hand, but that the context may matter, which was that Tilli-son was violently hitting two other vehicles. See Tr. at 28:3-29:2 (Court). The Plaintiffs responded by arguing that the stereo equipment and SUV were not stolen, which means that Smith lacked any justification to conducting a felony stop. See Tr. at 29:11-30:9 (Carpenter, Court). The Plaintiffs asserted that their expert’s conclusions show that Tillison did not almost run over Smith. See Tr. at 26:5-20 (Carpenter). They argued that, because Smith asserted that the vehicle almost ran over him, there is a genuine dispute whether the vehicle almost hit him, and what his justifications in shooting the tire and Tillison were and are. See Tr. at 26:20-28:1 (Carpenter).
The Court asked the Plaintiffs how Tilli-son was seized if he never surrendered. See Tr. at 30:9-31:3 (Carpenter, Court). The Plaintiffs responded by arguing that Tillison was seized the moment Smith stopped him. See Tr. at 32:13-19 (Carpenter). They contended that, in United States v. Maez, 872 F.2d 1444, 1450-51 (10th Cir.1989), the Tenth Circuit held that a person can be seized while he is inside his own house and disobeying officers’ orders to exit. See Tr. at 32:19-33:2 (Carpenter). The Court said that case is different, because the defendant eventually complied by coming outside, whereas here, Tillison continued to try to escape. See Tr. at 33:16-24 (Court). The Plaintiffs responded by stating that the SUV’s movements are disputed. See Tr. at 33:25-34:4 (Carpenter). They also argued that Smith relies on cases concerning traffic stops and that this case does not involve a traffic stop. See Tr. at 34:11-24 (Carpenter).
*1100 The Plaintiffs conceded that Smith had reasonable suspicion to conduct an investigatory stop, but argued that Smith conducted a felony stop, which amounted to an arrest. See Tr. at 34:25-35:17 (Carpenter, Court). They contended that Smith’s actions in blocking Tillison’s vehicle and approaching with his gun drawn constituted an arrest, and that Smith lacked probable cause. See Tr. at 35:15-37:9 (Carpenter, Court). The Plaintiffs argued that the bullet’s trajectory indicates that Tillison’s left hand was holding the SUV’s steering wheel and that, because Tillison was putting the car into reverse, his right hand was probably holding onto the gear panel. See Tr. at 39:6-16 (Carpenter). They asserted that Smith shot Tillison because he was fleeing, which is unlawful. See Tr. at 40:1-41:24 (Carpenter, Court).
Smith stated that, because Jobe, D.T., J.T., and I.M. are not bringing federal claims, there is no standing issue for the Court to resolve concerning their claims. See Tr. at 17:19-18:11 (Griffin, Court). Smith asserted that there were no witnesses who observed the incident from beginning to end. See Tr. at 19:22-20:12 (Griffin, Court). He contended that, during his interview with the homicide detectives, he told them that he could not tell what Tillison was holding in his right hand, but that it looked like a weapon. See Tr. at 42:17-43:11 (Griffin). Smith clarified that Tillison tried to run over him when he was standing next to the vehicle, at which point Tillison put the vehicle into reverse and ran it into the patrol car. See Tr. at 44:1-5 (Griffin). Smith stated that Tillison turned the vehicle toward the patrol car in a maneuver that Smith described as “a button hook.” Tr. at 44:5-6 (Griffin). Smith argued that it was at this point that Tillison came at him with the SUV. See Tr. at 44:7-15 (Griffin).
The Court asked Smith what occurred when he first arrived at the scene, and he said that he could not see Tillison’s hands, that Tillison was reaching around inside the vehicle, and that he was afraid that Tillison would exit the vehicle with a weapon drawn or to attack him. See Tr. at 44:18-45:6 (Griffin, Court). The Plaintiffs responded by saying that, from Smith’s statements, they were confused what happened when Smith first approached the vehicle, because Smith said at one point that the window was open and at another that it was down, and because Smith said he closed the door, but it is not clear whether Tillison tried to open the door or whether Smith did. See Tr. at 45:9-46:1 (Carpenter). The Court said it was concerned about granting summary judgment when there was no statement by Smith that he was apprehensive or fearful of the black object, and Smith responded by stating that in the Smith Aff. he said that he thought the black object was a gun. See Tr. at 46:6-47:9 (Griffin, 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 non-moving 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 *1101 verdict if not controverted at trial.” Celo-tex Corp. v. Catrett, 477 U.S. at 331, 106 S.Ct. 2548 (Brennan, J., dissenting) (emphasis in original). 43 Once the movant meets this burden, rule 56 requires the no'nmoving 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. Beatrice 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 dispositive matters for which it carries the burden of proof.” (internal 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)(internal quotation marks omitted)). Nor can a party “avoid summary judgment by repeating eonclusory 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) (Robinson, J.) (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 *1102 fact finder 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 . “[T]here 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 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 nonmov-ing 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 corut 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] 586-587, 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.
*1103 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).
The Tenth Circuit applied this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir.2009), and explained:
[Bjecause 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, 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.” York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th 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).
Thomson v. Salt Lake Cnty., 584 F.3d at 1312 (brackets omitted). “The Tenth Circuit, in Rhoads v. Miller, [ 352 Fed.Appx. 289 (10th Cir.2009) (Tymkovich, J.)(unpublished), 44 ] 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 *1104 “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 inquiring 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 RULE 56(d)
Rule 56(d) of the Federal Rules of Civil Procedure provides:
(d) When Facts Are Unavailable to the Nonmovant.
If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order. Fed.R.Civ.P. 56(d). Before 2010, this rule was rule 56(f); rule 56(d) “carries forward without substantial change the provisions of former subdivision (f).” Fed.R.Civ.P. 56(d) advisory committee’s notes to the 2010 amendments. “A party who seeks relief under subdivision (d) may seek an order deferring the time to respond to the summary-judgment motion.” Fed.R.Civ.P. 56(d) advisory committee’s notes to the 2010 amendments. The rule permits a nonmovant to show by affidavit or declaration the need for additional discovery; a formal affidavit is thus not required. See Fed.R.Civ.P. 56(d). The rule permits a “written unsworn declaration, certificate, verification, or statement subscribed in proper form as true under penalty of perjury to substitute for an affidavit.” Fed.R.Civ.P. 56(c) advisory committee’s notes to the 2010 amendments.
When a party files an affidavit or declaration, and moves for additional discovery time under rule 56(d), the party invokes the court’s discretion. See Jensen v. Rede *1105 velopment Agency of Sandy City, 998 F.2d 1550, 1553-54 (10th Cir.1993). “‘Unless dilatory or lacking in merit,’” a party’s 56[(d)] application “‘should be liberally treated.’ ” Jensen v. Redevelopment Agency of Sandy City, 998 F.2d at 1554 (quoting Comm. for 1st Amend. v. Campbell, 962 F.2d 1517 , 1522 (10th Cir.1992)). “The general principle of Rule 56(d) is that summary judgment should be refused where the nonmoving party has not had the opportunity to discover information that is essential to [its] opposition.” Price ex rel. Price v. W. Res., Inc., 232 F.3d 779, 783 (10th Cir.2000). Rule 56(d) does not require, however, that summary judgment not be entered until discovery is complete. See Price ex rel. Price v. W. Res., Inc., 232 F.3d at 784 .
“Rule 56[ (d) ] is not a license for a fishing expedition.... ” Lewis v. Ft. Collins, 903 F.2d 752 , 758 (10th Cir.1990). To invoke rule 56(d), the party filing the affidavit or declaration must state with specificity how the desired time would allow it to meet its burden in opposing summary judgment. See Jensen v. Redevelopment Agency of Sandy City, 998 F.2d at 1554 . Rule 56(d) may not be invoked based solely upon the assertion that discovery is incomplete or that specific facts necessary to oppose summary judgment are unavailable. See Jensen v. Redevelopment Agency of Sandy City, 998 F.2d at 1554 . Moreover, while the summary-judgment movant’s exclusive control of information weighs heavily in favor of relief under 56(d), see Price ex rel. Price v. W. Res., Inc., 232 F.3d at 783 , merely asserting that the movant has the evidence is insufficient to justify denial of summary judgment, see Jensen v. Redevelopment Agency of Sandy City, 998 F.2d at 1554 . Furthermore, “if the party filing the Rule 56[ (d) ] affidavit has been dilatory, or the information sought is either irrelevant to the summary judgment motion or merely cumulative, no extension will be granted.” Jensen v. Redevelopment Agency of Sandy City, 998 F.2d at 1554 (denying a 56(d) request stating “the record reflected] that plaintiffs were dilatory in pursuing discovery prior to the filing of their 56[ (d) ] affidavit”). See Johnson v. Holmes, 377 F.Supp.2d 1039, 1044-45 (D.N.M.2004) (Browning, J.)(denying a 56(d) request where plaintiff did not explain why, during the discovery period that the court allowed, he did not obtain the discovery sought in his motion), aff'd, 455 F.3d 1133 (10th Cir.2006). The Tenth Circuit has summarized rule 56(d)’s requirements as follows:
A prerequisite to granting relief pursuant to Rule 56[ (d) ] is an affidavit furnished by the nonmovant. Although the affidavit need not contain evidentiary facts, it must explain why facts precluding summary judgment cannot be presented. This includes identifying the probable facts not available and what steps have been taken to obtain these facts. In this circuit, the nonmovant also must explain[, with specificity,] how additional time will enable him to rebut movant’s allegations of no genuine issue of fact.
Price ex rel. Price v. W. Res., Inc., 232 F.3d at 783 (quoting Comm. for 1st Amend. v. Campbell, 962 F.2d at 1522). See Padlock v. Lahood, 550 Fed.Appx. 541, 547 (10th Cir.2013) (citing Price ex rel. Price v. W. Res., Inc. for the requirements of rule 56(d) after the 2010 amendment); Douglass v. United Auto Workers Local Union 31, 188 Fed.Appx. 656, 658 (10th Cir.2006) (unpublished)(stating that the affidavit must state “with specificity” how the additional time would enable the party to meet its burden). A rule 56(d) affidavit or declaration must state, with specificity, what additional discovery is believed necessary. See Burke v. Utah Transit Auth. & Local 382, 462 F.3d 1253, 1264 (10th Cir.2006); Chavez v. Perry, 142 Fed.Appx. *1106 325, 334 (10th Cir.2005) (unpublished) (“To resist summary judgment on this basis, a party must specifically identify what facts it seeks to discover and show how those facts would materially aid its case on the dispositive issues.”). If a party does not file an affidavit or declaration, a district court does not abuse its discretion in denying discovery. See Tadlock v. Lahood, 550 Fed.Appx. at 547 .
In determining whether a party has been dilatory in pursuing discovery, courts should consider: (i) “the length of the pendency of the case- prior to the Rule 56[ (d) ] request”; (ii) “whether and when plaintiff could have anticipated its need for the requested discovery”; (iii) “the previous efforts, if any, made by plaintiff to obtain the needed information either through Rule discovery or otherwise”; (iv) “the degree and nature of discovery already undertaken”; (v) “any limitations placed upon discovery previously by the trial court”; (vi) “any prior solicitations of or provisions for discovery by the trial court”; (vii) “any warning which plaintiff might have had that, absent a speedier request, discovery might be denied and his claim be dismissed”; and (viii) “whether the requested information was inaccessible to plaintiff, e.g. as when within defendant’s exclusive control, or whether alternative, accessible sources existed but were foregone.” Paul Kadair, Inc. v. Sony Corp. of Am., 694 F.2d 1017, 1031 (5th Cir.1983). See Jensen v. Redevelopment Agency of Sandy City, 998 F.2d at 1555 n. 7 (noting that the “Fifth Circuit enumerates eight factors to be considered in determining whether a party has been dilatory in seeking discovery” (citing Paul Kadair, Inc. v. Sony Corp. of Am., 694 F.2d at 1031 )); Klick v. Hercules, Inc., 5 F.3d 546 , at *4 n. 3 (10th Cir. Aug. 19, 1993) (table opinion) (unpublished)(stating that Paul Kadair, Inc. v. Sony Corp. of America enumerates “eight factors which should be considered by the court before determining whether a party has been dilatory in conducting discovery”); Patty Precision v. Brown & Sharpe Mfg. Co., 742 F.2d 1260 , 1264 n. 4 (10th Cir.1984) (stating that the Fifth Circuit, in Paul Kadair, Inc. v. Sony Corp of America, “enumerates eight factors to be considered in determining whether a party has been dilatory in seeking discovery”).
LAW REGARDING LIABILITY FOR CONSTITUTIONAL VIOLATIONS UNDER 42 U.S.C. § 1983
Section 1983 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 *1107 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 [ 45 ] 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’ 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 “well 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. *1108 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 at 1046 . The Tenth Circuit 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.). 46
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 su *1109 perseding 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 liable 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 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, “[foreseeable 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 § 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)) (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). Cf. 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 *1110 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 liability 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 *1111 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 (in) that 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 QUALIFIED IMMUNITY
Qualified immunity recognizes the “need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.” Harlow v. Fitzgerald, 457 U.S. 800, 807 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). “Qualified immunity protects federal and state officials from liability for discretionary functions, and from ‘the unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.’ ” Roybal v. City of Albuquerque, No. CIV 08-0181 JB/ LFG, 2009 WL 1329834 , at *10 (D.N.M. Apr. 28, 2009) (Browning, J.)(quoting Sie-gert v. Gilley, 500 U.S. 226, 232 , 111 S.Ct. 1789 , 114 L.Ed.2d 277 (1991)). The Supreme Court deems it “untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials.” Butz v. Economou, 438 U.S. 478, 504 , 98 S.Ct. 2894 , 57 L.Ed.2d 895 (1978). “The qualified immunity analysis is the same whether the claims are brought under Bivens or pursuant to the post-Civil War Civil Rights Acts.” Breid-enbach v. Bolish, 126 F.3d 1288 , 1291 (10th Cir.1997), overruled on other grounds as recognized in Currier v. Doran, 242 F.3d 905 (10th Cir.2001).
Under § 1983 (invoked in this case) and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 ... (1971), a plaintiff may seek money damages from government officials who have violated her constitu *1112 tional or statutory rights. But to ensure that fear of liability will not “unduly inhibit officials in the discharge of then-duties,” Anderson v. Creighton, 483 U.S. 635, 638 , 107 S.Ct. 3034 , 97 L.Ed.2d 523 ... (1987), the officials may claim qualified immunity; so long as they have not violated a “clearly established” right, they are shielded from personal liability, Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 ... (1982). That means a court can often avoid ruling on the plaintiffs claim that a particular right exists. If prior case law has not clearly settled the right, and so given officials fair notice of it, the court can simply dismiss the claim for money damages. The court need never decide whether the plaintiffs claim, even though novel or otherwise unsettled, in fact has merit.
Camreta v. Greene, 563 U.S. 692 , 131 S.Ct. 2020, 2030-31 , 179 L.Ed.2d 1118 (2011).
Issues of qualified immunity are best resolved at the “earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S. 223, 232 , 129 S.Ct. 808 , 172 L.Ed.2d 565 (2009) (quoting Hunter v. Bryant, 502 U.S. 224, 227 , 112 S.Ct. 534 , 116 L.Ed.2d 589 (1991) (per curiam)). “If qualified immunity is to mean anything, it must mean that public employees who are just doing then-jobs are generally immune from suit.” Lewis v. Tripp, 604 F.3d 1221, 1230 (10th Cir.2010).
Qualified immunity shields government officials from liability where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. at 231 , 129 S.Ct. 808 (quoting Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. 2727 ). Qualified immunity also shields officers who have “reasonable, but mistaken beliefs,” and operates to protect officers from the sometimes “hazy border[s]” of the law. Saucier v. Katz, 533 U.S. 194 , 205, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001). When a defendant asserts qualified immunity, the plaintiff must demonstrate: (i) that the defendant’s actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged misconduct. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.2009).
1. Procedural Approach to Qualifíed Immunity.
The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand.” 555 U.S. at 236 , 129 S.Ct. 808 . The Supreme Court also noted that, while no longer mandatory, the protocol outlined in Saucier v. Katz — by which a court first decides if the defendant’s actions violated the Constitution and then determines if the right violated was clearly established — will often be beneficial. See Pearson v. Callahan, 555 U.S. at 241 , 129 S.Ct. 808 . In rejecting the prior mandatory approach, the Supreme Court recognized that “[tjhere are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right,” and that such an approach burdens district court and courts of appeals with “what may seem to be an essentially academic exercise.” 555 U.S. at 237 , 129 S.Ct. 808 . The Supreme Court also recognized that the .prior mandatory approach “departs from the general rule of constitutional avoidance and runs counter to the older, wiser judicial counsel not to pass on questions of constitutionality un *1113 less such adjudication is unavoidable.” 555 U.S. at 241 , 129 S.Ct. 808 (alterations omitted)(internal quotation marks omitted). See Reichle v. Howards, — U.S. —, 132 S.Ct. 2088, 2093 , 182 L.Ed.2d 985 (2012) (affirming Pearson v. Callahan’s procedure and noting that deciding qualified immunity issues on the basis of a right being not “clearly established” by prior case law “comports with our usual reluctance to decide constitutional questions unnecessarily”). Once the plaintiff establishes an inference that the defendant’s conduct violated a clearly established constitutional right, a qualified immunity defense generally fails. See Cannon v. City & Cnty. of Denver, 998 F.2d 867 , 870-71 (10th Cir.1993).
The Supreme Court recognizes seven circumstances where district courts should proceed directly to and “should address only” the clearly established prong of the qualified immunity analysis: when (i) the first, constitutional violation question “is so factbound that the decision provides little guidance for future cases”; (ii) “it appears that the question will soon be decided by a higher court”; (iii) deciding the constitutional question requires “an uncertain interpretation of state law”; (iv) “qualified immunity is asserted at the pleading stage,” and “the precise factual basis for the ... claim ... may be hard to identify”; (v) tackling the first element “may create a risk of bad decisionmaking,” because of inadequate briefing; (vi) discussing both elements risks “bad decision-making,” because the court is firmly convinced the law is not clearly established and is thus inclined to give little thought to the existence of the constitutional right; or (vii) the doctrine of “constitutional avoidance” suggests the wisdom of passing on the first constitutional question when “it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right.” Kerns v. Bader, 663 F.3d 1173, 1180-81 (10th Cir.2011) (quoting Pearson v. Callahan, 555 U.S. at 236-42 , 129 S.Ct. 808 ). 47 *1114 Regarding the last of these seven circumstances, the Supreme Court has clarified that courts may “avoid avoidance” and address the first prong before the second prong in cases involving a recurring fact pattern, where guidance on the constitutionality of the challenged conduct is necessary, and the conduct is likely only to face challenges in the qualified immunity context. Camreta v. Greene, 131 S.Ct. at 2031-32 . See Kerns v. Bader, 663 F.3d at 1181 . 48 “Courts should think carefully be *1115 fore expending ‘scarce judicial resources’ to resolve difficult and novel questions of constitutional or statutory interpretation that will ‘have no effect on the outcome of the case.’ ” Ashcroft v. al-Kidd, 563 U.S. 731 , 131 S.Ct. 2074, 2080 , 179 L.Ed.2d 1149 (2011) (quoting Pearson v. Callahan, 555 U.S. at 236-37 , 129 S.Ct. 808 ). See Camreta v. Greene, 131 S.Ct. at 2032 (“In general, courts should think hard, and then think hard again, before turning small cases into large ones.”). 49 The Tenth Cir *1116 cuit will remand a ease to the district court for further consideration when the district court has given cursory treatment to the clearly established prong of the qualified immunity analysis. See Kerns v. Bader, 663 F.3d at 1182 .
2. Clearly Established Rights in the
Qualified Immunity Analysis.
To determine whether a right was clearly established, a court must consider whether the right was sufficiently clear that a reasonable government employee in the defendant’s shoes would understand that what he or she did violated that right. *1117 See Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir.2007). “A clearly established right is generally defined as a right so thoroughly developed and consistently recognized under the law of the jurisdiction as to be ‘indisputable’ and ‘unquestioned.’ ” Lobozzo v. Colo. Dep’t of Corr., 429 Fed.Appx. 707, 710 (10th Cir.2011) (unpublished) (quoting Zweibon v. Mitchell, 720 F.2d 162, 172-73 (D.C.Cir.1983)).
“Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Currier v. Doran, 242 F.3d at 923 . On the other hand, the Supreme Court has observed that it is generally not necessary to -find a controlling decision declaring the “very action in question ... unlawful.” Anderson v. Creighton, 483 U.S. 635, 640 , 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987). “In determining whether the right was ‘clearly established,’ the court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether ‘the contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir.2001) (alteration in original) (quoting Saucier v. Katz, 533 U.S. at 202, 121 S.Ct. 2151 ). A court should inquire “whether the law put officials on fair notice that the described conduct was unconstitutional” rather than engage in “a scavenger hunt for cases with precisely the same facts.” Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir.2004).
The Supreme Court has clarified that the clearly established prong of the qualified immunity test is a very high burden for the plaintiff: “A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 131 S.Ct. at 2083. “In other words, ‘existing precedent must have placed the statutory or constitutional question beyond debate.’ ” Reichle v. Howards, 132 S.Ct. at 2093 (quoting Ashcroft v. al-Kidd, 131 S.Ct. at 2083). “The operation of this standard, however, depends substantially upon the level of generality at which the relevant ‘legal rule’ is to be identified.” Anderson v. Creighton, 483 U.S. at 639 , 107 S.Ct. 3034 . “The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.” Ashcroft v. al-Kidd, 131 S.Ct. at 2084. The level of generality at which the legal rule is defined is important, because qualified immunity shields officers who have “reasonable, but mistaken beliefs” as to the application of law to facts and operates to protect officers from the sometimes “hazy border[s]” of the law. Saucier v. Katz, 533 U.S. at 205, 121 S.Ct. 2151 .
The Tenth Circuit held in Kerns v. Bader that, although “a case on point isn’t required if the impropriety of the defendant’s conduct is clear from existing case law,” the law is not clearly established where “a distinction might make a constitutional difference.” 663 F.3d at 1188 (emphasis in original). In Kerns v. Bader, dealing with the search of a home, the Tenth Circuit explained that the relevant question “wasn’t whether we all have some general privacy interest in our home,” but “whether it was beyond debate in 2005 that the officers’ entry and search lacked legal justification.” 663 F.3d at 1183 (emphasis added). Earlier Tenth *1118 Circuit cases, clarifying the level of generality at which a legal rule must be defined, applied a sliding scale to determine when the law is clearly established. See Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir.2007) (“The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation.”). “[W]hen an officer’s violation ... is particularly clear ..., [the Tenth Circuit] does not require a second decision with greater specificity to clearly establish the law.” Casey v. City of Fed. Heights, 509 F.3d at 1284 . Furthermore, “general statements of the law are not inherently incapable of giving fair and clear warning....” Hope v. Pelzer, 536 U.S. 730, 741 , 122 S.Ct. 2508 , 153 L.Ed.2d 666 (2002).
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 *1119 Cir.2009) (quoting United States v. Vercher, 358 F.3d 1257, 1261 (10th Cir.2004)). Information “falling ‘considerably short’ of a preponder

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7231763. Public record. Not legal advice.