New Mexico Civil Rights Law Blog : New Mexico Civil Rights Lawyer & Attorney : Kennedy Law Firm : Albuquerque NM Excessive Force & Police Misconduct

          In Zia Trust Company v. Montoya,  2010 U.S. App. Lexis 5016 (March 9, 2010), the child of a victim of police use of deadly force brought a lawsuit against the police officer and Dona Ana County.  In this police shooting case, the police officer filed a motion for summary judgment in district court.  The district court denied the motion holding that the law related to excessive use of deadly force was clearly established.  The Officer appealed and the Tenth Circuit affirmed that a reasonable jury could find that the officer's use of force deprived the child's father of his fourth amendment right to be free of excessive force. The opinion can be read here:  ca10.washburnlaw.edu/cases/2010/03/09-2006.pdf.

          In this case, police were called to a home where a father and an adult son were having a dispute.  The son was reported to have mental health problems.  When police arrived, the son was in a car lodged on a pile of rocks.  The car lurched forward about a foot and Officer Montoya fired a single shot into the car killing the son.  The Tenth Circuit found that a reasonable jury could conclude that Officer Montoya used excessive force in shooting the adult son.

          For practitioners, the Tenth Circuit explained, in greater detail, the factors a jury may consider when deciding whether deadly police force is unlawful:

We may also consider a number of factors, including: "(1) whether the officers ordered the suspect to drop his weapon, and the suspect's compliance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions of the suspect." Estate of Larsen, 511 F.3d at 1260. "The use of deadly force is justified under the Fourth Amendment if a reasonable officer in the Defendant's position would have had probable cause to believe that there was a threat of serious physical harm to themselves or others." Walker, 451 F.3d at 1159 (internal quotations omitted).

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 In Shroff v. Spellman, 2010 U.S. App. Lexis 6018, Amy Shroff vindicated her right to privacy when she and her attorneys successfully defended the appeal of Officer Spellman's denial of his qualified immunity defense to his arrest of Ms. Shroff after he ignored the clear terms of a restraining order she had obtained against the physically abusive father of her child.  The full opinion can be read here:  ca10.washburnlaw.edu/cases/2010/03/09-1084.pdf.

Officer Frank Spellman of the Denver Police Department arrested Amy Shroff.  She had obtained a restraining order against the father of her child after several acts of physical abuse.  The restraining order prevented her ex from coming within one hundred feet of her, but it was not a mutual restraining order.

One day while driving to drop her daughter off for supervised visitation, she noticed her ex's truck parked outside the local bar.  Amy got out of her car and took a picture of the truck in front of the bar.  Unknown to her, her ex was simultaneously taking a picture of her.  The ex complained to Officer Spellman, who ignored the clear language of the restraining order and arrested Ms. Shroff for coming within 100 feet of her ex.   The Tenth Circuit ruled that the arrest lacked probable cause of a crime.

At the police station, Amy pleaded not to be arrested because of her child's aversion to formula.  When that appeal was denied, she pleaded for a chance to pump her breasts.  Officer Spellman placed Amy in a conference room with a female cadet where Amy pumped her breasts.  The Tenth Circuit held that Amy did not voluntarily expose her breasts and held that her claim was analogous to prohibited strip searches of misdemeanants in police custody.

Of note for the practitioner is further explanation of the qualified immunity defense and the need for an action to have been held unconstitutional in a previous decision.  The Tenth Circuit wrote:  

In Fogarty v.Gallegos, 523 F.3d 1147 (10th Cir. 2008), this Court held that 

“our circuit uses a sliding scale to determine when a law is clearly established. 

Under this approach, ‘[t]he 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.’”  Id. at 1161 (quoting Pierce v. Gilchrist, 

359 F.3d 1279, 1298 (10th Cir. 2004)) (alteration in original).

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What makes a seizure unreasonable when interpreting the Fourth Amendment to the United States Constitution?  How should reasonable be interpreted at the summary judgment stage, for the purposes of determining whether a police officer is entitled to qualified immunity? Recently, the United States Court of Appeals for the Tenth Circuit significantly clarified competing doctrines in this area, releasing an opinion authored by Judge Tymkovich in the case of Robert and Mary Fisher v. The City of Las Cruces, 2009 U.S. App. LEXIS 22825 (10th Cir. N.M. Oct. 19, 2009).

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     In a come-from-behind, but dubious victory for the Fourth Amendment, Justices Stevens and Scalia teamed up to deliver a surprise concurrence in the recent case of Arizona v. Gant, 129 S. Ct. 1710, 2009 U.S. LEXIS 3120 (2009).  After thoroughly reviewing the Court’s previous holdings in N.Y. v. Belton, 453 U.S. 454 (1981); Thornton v. United States, 541 U.S. 615 (2004); and Chimel v. California, 395 U.S. 752 (1969), commentators were shocked to learn there is actually something on which the liberal and conservative wings of the Court agree:
    Police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.
    Continued ....

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     In a remarkable victory for the rights of citizens whose family members are suspected of criminal activity, the United States Court of Appeals for the Tenth Circuit decided that family relationships alone do not justify searches of homes, even when officers can convince a state district court judge to issue a warrant. Poolaw v. Marcantel, 2009 U.S. App. LEXIS 9483 (10^th Cir. N.M. May 4, 2009).

     The owners of the home illegally searched (in this case mere in-laws of the primary suspect), were related by nothing more than marriage. The criminal suspect was wanted for the tragic homicide of a sheriff’s deputy, with the innocent family members caught in the middle of the ongoing dragnet. The ruling is a victory for the cause of civil rights, the Constitution, and the rule of law.

     Continued . . .

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