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

The Court recited the background of this strange case:  

“After consuming at least two doses of Xanax, an anti-anxiety prescription medication, and the better part of a pint of vodka, Robert Fisher passed out in his backyard. When he awoke, he began to hallucinate that a large animal was threatening him. Fisher ran inside, retrieved a 9 millimeter handgun, and returned to the backyard to confront the illusion. Staggering and delirious, Fisher instead accidentally shot himself in the stomach. As he fell to his knees, his gun discharged again and a second bullet struck him in the left bicep.”

Id. at 22825.  Las Cruces police department Officers Joann Schnell and Roberto Gutierrez responded to the scene, finding a bewildered Robert Fisher in the backyard, with his shirt off, nursing his wounds.

After retrieving Fisher’s gun, Officer Gutierrez ordered Fisher to lay on his bleeding stomach and spread his arms over his head. Fisher resisted this order, telling the officers that he could not comply due to his injuries. After repeating these orders, Fisher again did not comply.  Officer Schnell then proceeded to handcuff Fisher behind his back.  Because of the swelling to Fisher's bicep, she placed her knee into Fisher's back, in order to leverage his arms behind his body.

“Fisher begged not to be handcuffed in this manner. As he later reported: "I  protested the handcuffing behind my back. I told the officers that it was not necessary and to consider my wounds. . . . I begged her not to handcuff me behind my back." Aplt. App. 77. The manner in which he was handcuffed--with a knee to his back, placing pressure on his stomach wound, and with his arms brought behind his body--caused, in Fisher's words, ‘excruciating pain. It felt like my bicep was tearing.’ Id. at 78.”

Id. at 22825.  Fisher sued the officers under Section 1983, claiming the officers used excessive force, in violation of his rights under the Fourth Amendment.  The District Court ruled against Fisher at summary judgment, claiming his injuries were minor, and he had not offered enough evidence “that he suffered a non-de minimis injury.”  Id. 

          After surviving the two-part test laid out for qualified immunity explained in Martinez v. Carr, 479 F.3d 1292, 1295 (10th Cir. 2007) , the Court reviewed United States Supreme Court doctrine found in Saucier v. Katz, 533 U.S. 194, 121 (2001).  The Court requires establishment of 1) a violation of a Constitutional right and 2) that the right was clearly established.

          Following this analysis, the Court moved on to several balancing factors found in Graham v. Connor, 490 U.S. 386 (1989) to explain that a seizure’s reasonableness turns not just on why or when it is made, but also on how it is accomplished.  In some circumstances, an inquiry into objective reasonableness won’t just focus on why, but also how.  The Court cited Cortez v. McCauley, 478 F.3d 1108, 1127 (10th Cir. 2007), for the proposition that, “If the plaintiff can prove that the officers used greater force than would have been reasonably necessary to effect a lawful arrest, he is entitled to damages resulting from that excessive force."

          Applying prior doctrine, the Court analyzed, “[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396.  The Court drew extensively on Buck v. City of Albuquerque, the war protestor case from 2003, in which the city was sued for excessive force in dealing with individuals exercising their 1^st Amendment rights:

“We do not agree with the concurrence that Buck v. City of Albuquerque, 549 F.3d 1269, 1290 (10th Cir. 2008), rejected a de minimis injury requirement where the injury occurs during the course of handcuffing. The facts of the case make it clear why not. Doyon (the only person even handcuffed) did not attempt to flee, or pose a threat to any officer or individual, but nonetheless, the ‘officers grabbed him, dragged him, and pushed him face down on the pavement. One officer kneed him in the back and pinned him to the ground. An officer pushed him face forward onto the roof of a police car, and he was exposed to tear gas while handcuffed in the car.’ Id. at 1290. … Doyon was exposed to gas while handcuffed in the police car.  Buck, in short, cannot fairly be read as a case in which excessive force arises solely from the manner in which officers applied handcuffs, rather than from force independent of the handcuffing itself.”

Fisher at 22825.

Finding that discharge of a gun in the city limits of Las Cruces is only a petty misdemeanor, and therefore not a severe crime, and viewing facts in light most favorable to the Plaintiff, the Court concluded in Fisher’s favor on all three Graham factors.  The Court found that a reasonable juror could find injury, if even tiny injury.  Either way, physical injury was not required, so long as emotional injury, or dignitary injury, could also be independently found.  Remand for further proceedings and trial was appropriate.

Stating a clear rule of law, “In Cortez we explained that in a handcuffing case ‘to recover on an excessive force claim, a plaintiff must show: (1) that the officers used greater force than would have been reasonably necessary to effect a lawful seizure, and (2) some actual injury caused by the unreasonable seizure that is not de minimis, be it physical or emotional." Id. at 1129.  Fisher at 22825.

In a concurrence on the judgment by Judge Gorsuch, he took issue with a rule requiring a showing of actual injury. “[O]utside the context of a claim alleging overly tight handcuffing, proof of injury [either physical or emotional] is not essential to an excessive force claim. See [Cortez] at 1129 n.24.  “… [T]he circumstances of an encounter . . . may themselves be so outrageous as to demonstrate excessiveness’ without any evidence of a consequent injury).”   Fisher at 22825.

Obviously, this was a gratifying victory for a young girl who is still very much at risk for educational failure because of a teacher's actions. Kennedy and Oliver worked on this case for eighteen months. The highest settlement offer L.S. received was $300,000, including costs and attorney fees. This offer was made after a year of litigation.

The insurer in this matter, New Mexico Public School Insurance Authority, was the most mendacious public entity I have ever litigated against. Before our client's mother retained Kennedy & Oliver, an insurance, money grubber invited mom to a Denny's in Farmington and offered her $10,000. When she did not accept the offer, he falsely told her that there was a cap of $250,000 in damages and she shouldn't hire a lawyer because he would just take one-third of the money for doing little work.

The result would not have been possible without our expert Gilbet Kliman, M.D., a psychiatrist in San Francisco and Director of the Children's Psychological Health Center, Inc., a non-profit organization that works with traumatized children.

The claims were made under 42 U.S.C. Sec. 1983 and alleged a deprivation of Fourteenth Amendment Rights to Equal Protection and Substantive Due Process. The defendant plead guilty to criminal sexual contact and admitted liability. The guilty plea allowed us to proceed to trial without our client's testimony. We were able to tell L.S.'s story through her mom and Dr. Kliman.

Of particular note, the defendant actually testified at trial. Defense counsel apparently believed an apology would enable them to argue that no punitive damages were warranted. However, the defendant asserted his Fifth Amendment Right to refuse to testify about any previous acts of sexual molestation. He also asserted a privilege against disclosing his conversations with counselors in prison.

Ms. Oliver gave a truly beautiful rebuttal argument, which included an analgoy between his staged apology in court and his molestation of L.S. When he turned to apologize to our client's mom, she broke down weeping and turned her back to him. He continued with the apology while our client's mom's shoulders were heaving. Ms. Oliver pointed out that he continued depsite how obvious it was that he was hurting her, because he wanted to selfishly relieve himself on her. Ms. Oliver said that that was just like the molestation itself. He did not care about the damage he was causing; he wanted to continue to gratify himself.

The Tenth Circuit listed the factors it considers in determining whether a person is seized within the meaning of the Fourth Amendment:

1) the threatening presence of several officers; 2) the brandishing of a weapon by an officer; 3) some physical touching by an officer; 4) use of aggressive language or tone of voice indicating that compliance with an officer's request is compulsory; 5) prolonged retention of a person's personal effects . . . ; 6) a request to accompany the officer to the station; 7) interaction in a nonpublic place or a small, enclosed place; 8) and absence of other members of the public.

[United States v.]Hill, 199 F.3d at 1147-48. We have refused to treat any of the factors cited above as dispositive. United States v. Glass, 128 F.3d 1398, 1406 (10th Cir. 1997); United States v. Little, 18 F.3d 1499, 1503 (10th Cir. 1994) (en banc) ("only in rare instances will any one factor produce an inexorable conclusion that a seizure has occurred."). Nor are these factors exclusive. See United States v. Griffin, 7 F.3d 1512, 1518 (10th Cir. 1993) ("we have avoided hard line rules to govern this analysis, and our opinion today should not be interpreted as an exhaustive pronouncement."). Rather, we base our Fourth Amendment analysis on the "totality of the circumstances." United States v. Shareef, 100 F.3d 1491, 1505 (10th Cir. 1996) (citation omitted). When viewing the totality of the circumstances, it may be that the strong presence of two or three factors demonstrates that a reasonable person would have believed that he was not free to terminate an encounter with government officials.

The Tenth Circuit then proceeded to explain that it views the detention "through the eyes of a reasonable sixteen year old". The Court concluded that viewed through a juvenile's eyes the encounter was a detention.

The Court rejected the district court's finding of no seizure, which was premised upon a finding that the social worker and the uniformed police officer who accompanied the social worker were merely discussing custody. The Court found that, based on the threats, the teen could reasonably believe that her leaving the encounter in the counselor's office would result in her arrest.

Finally, the Court rejected the defendant's argument that seizures in schools face a less rigorous standard of reasonableness. The Court noted that the cases easing the reasonableness standard for school administrators were based on a recognition that schools must be able to perform their educational function. The seizure of Ms. Jones had nothing to do with the administrative function of the school.

Officer Tom Sholtis was on his way home after his shift at about 2:30 a.m. on a fine, early October morning. Tom Sholtis stopped at his local park to check for people because he noticed two cars parked nearby. Sholtis spotlighted the park and ordered the two plaintiffs to his car. The plaintiffs walked away. Sholtis pulled his car around to the area toward where the women were walking. Plaintiff Tanberg walked past Sholtis. Sholtis proceeded to "arm-bar" Ms. Tanberg and placed both plaintiffs under arrest for being in the park after its close and for "contempt of cop" (resisitng, refusal to obey a lawful order).

The Tenth Circuit upheld the trial court's dismissal of both the state law and federal law false arrest claims despite the existence of disputed facts about whether the plaintiffs complied with the orders of Sholtis.

The Court's analysis was simple. The park was closed; it is a misdemeanor to be in the park after its close even if you can't read the sign; thus, the arrest was supported by probable cause to believe plaintiffs were committing a misdemeanor. The Court held that an arrest in violation of department procedures (SOP's) did not support a false arrest claim under state law.

In addition, the Tenth Circuit upheld the trial court's exclusion of department SOP's on plaintiffs' claims of battery and excessive force.
The Court found that in deciding whether to admit department procedures on use of force, the trial court was correct to be concerned about confusing the jury with a standard different than the Graham objective reasonableness test.

In federal district court in New Mexico, the City of Albuquerque is largely successful in excluding SOP's from evidence. However, their attorneys often open the door to its admission when they solicit whether the officer's conduct was in compliance with the officer's training (as happened in this trial). Once training is discussed, SOP's become admissible; as SOP's are part of training.

As a side not, Officer Sholtis is no longer one of Albuquerque's finest. This blogger successfully sued Officer Sholtis twice to judgment. After the Tanberg incident, Officer Sholtis apparently decided that he would try some other line of work. This was a case of a bad cop who got away with one.

The Mimics' business was computer software. The owners ran the business out of a condominium. The business was not open to the public. Shortly after arriving in Angel Fire, the Mimics' owners became embroiled in a local political dispute. The building inspector was on the other side of the dispute. The building inspector entered twice into the condominium in search of building code violations. The building inspector trumped up violations. The business and its owners sued.

The decision is notable for its recognition that a plaintiff can state a claim for an equal protection violation when he alleges that the government's action was motivated by an animus against the plaintiff as an individual rather than the plaintiff as a member of a protected class. The plaintiff must prove that he was targeted because of some animosity and that others, similarly situated, were treated differently.

The Court also rejected a defense claim that the actions of the building inspection in "just looking around" was a de minimis violation of the Fourth Amendment. The Court distinguished Artes-Roy v. City of Aspen, 31 F.3d 958, 962-63 (10th Cir. 1994)by noting that the entry into the Mimics was intentional and purposeful and not inadvertent.

The Court allowed the plaintiff's First Amendment claim to proceed as well. The Court placed the burden on defendants to show that their conduct was reasonable:

"[P]roof of an official's retaliatory intent rarely will be supported by direct evidence of such intent." Poole v. County of Otero, 271 F.3d 955, 962 (10th Cir. 2001) (quotation omitted). In the context of a summary judgment motion on a qualified immunity defense to a claim involving the defendant's state of mind, the defendant must first show that the challenged conduct was objectively reasonable. Gehl Group v. Koby, 63 F.3d 1528, 1535 (10th Cir. 1995), implicitly overruled on another issue by Currier v. Doran, 242 F.3d 905, 916 (10th Cir. 2001). Because this court has determined that there is evidence Hasford's entries into MIMICS on December 20, 1996 and January 16, 1997 were not objectively reasonable, we need not conduct any further analysis.(6) Construing the evidence in the Wildgrubes' favor, as we must do on summary judgment, Hasford has failed, at least at this point in the proceedings, to establish that he is entitled to qualified immunity on the Wildgrubes' First Amendment claim.

The case has settled on remand.

Judge Molzen, in a forty page opinion, dismissed the parents' claim that the Children Youth and Family Division (CYFD) social workers and law enforcement officers deprived them of their Fourteenth Amendment due process rights when they took their eleven month old daughter and their five year old daughter from their home without court order.

The opinion applies Rosca ex rel. Roska v. Peterson, 328 F.3d 1230 (10th CIr. 2003). In Roska, the Tenth Circuit held that the state may not remove chidren from a home without a court order unless there is an "immediate threat" to the safety of the child. The Court stated that the mere possibility of danger was not sufficient for the removal of children.

In Arrendo, the mother had brought the eleven month old into the emergency room twice in one week. One visit was for a broken arm and the other visit was for some type of hip injury(as it turned out, the emergency room doctor misdiagnosed the hip injury as a fracture). Medical personnel contacted CYFD, who in turn contacted law enforcement, and reported suspicions of physical abuse. After some investigation and disagreement about whetheh the children were in danger, CYFD removed the children from the home. Judge Molzen found that all state actors enjoyed qualified immunity for their decision to remove the children without court order.

The two critical legal aspects of the case are Judge Molzen's interpretation of Rosca to the effect that no court order is required for removal, even if time permits, when CYFD reasonably decides an emergency exists and Judge Molzen's decision that the question of whether an emergency existed is a legal question for the court.

Judge Molzen's decision is loaded with case cites from across the country. The opinion contains a wealth of knowledge and is a must read for the lawyer contemplating such a claim.

Inmate Simkins was housed in Hutchison, Kansas. While in Hutchison, Inmate Simkins had a pending federal civil suit concerning the conditions of a jail in Saline County, Kansas. In March, 2000, Mr. Simkins was transferred temporarily to Boulder, Colorado for legal proceedings there. In April, 2000 The Saline County Defendants mailed a motion for summary judgment to his address at the Hutchison jail. The mailroom supervisor at the Hutchison jail simply placed Mr. Simkins mail to the side awaiting his return. The problem was that Mr. Simkins did not return to Hutchison until March, 2001. In the interim, his suit against Saline County was dismissed for his failure to respond to the summary judgment motion. This lawsuit followed.

The district court found that the holding of the mail was merely negligent conduct and granted summary judgment to the defendants. The Tenth Circuit disagreed. First, the Tenth Circuit distinguished the Simkins matter from cases in which mail was inadvertently lost or misplaced:

In the present case, plaintiff's claim that a right of access to the courts has been impeded requires him to allege intentional conduct interfering with his legal mail, and does not require an additional showing of malicious motive.(3) See Treff v. Galetka, 74 F.3d 191, 195 (10th Cir. 1996); Jackson v. Procunier, 789 F.2d 307, 311 (5th Cir. 1986); Washington v. James, 782 F.2d 1134, 1139 (2d Cir. 1986). By contrast, when access to courts is impeded by mere negligence, as when legal mail is inadvertently lost or misdirected, no constitutional violation occurs. See Pink v. Lester, 52 F.3d 73, 77 (4th Cir. 1995) (discussing cases from several circuits). In its Memorandum and Order, the district court relied on cases involving inadvertently lost, not intentionally held mail. See, e.g., Richardson v. McDonnell, 841 F.2d 120, 122 (5th Cir. 1988) (holding that unintentional loss of mail does not support access-to-courts claims and distinguishing situations involving intentional withholding of mail).

The Court found that the mailroom supervisor's intentional failure to forward the mail to Simkins was sufficient to support a claim for denial of right of access to courts. The Tenth Circuit reversed the entry of summary judgment in favor of the jail defendants.

For the lawyer confronting defenses of "mere negligence" in the failure to provide due process, you may wish to read Summers v. State of Utah, 927 F.2d 1165 (10th Cir. 1991) and Soubeer v. Robinson, 791 F.2d 1094 (3rd Cir. 1986). Both stand for the general proposition that the negligent failure to provide due process is actionable when the taking of the property or liberty right was intentional.

When the operative law is clearly established, a police officer's reliance upon legal advice will do him little, if any, good. This decision rests upon a number of legal fictions. First, the qualified immunity doctrine itself is a court created doctrine that is contrary to the language and intent of 42 U.S.C. Sec. 1983. Second, the concept that police officers are deemed to know "clearly established" law is a fiction, but it is the only way to limit the judicially created qualified immunity doctrine. Finally, holding a cop liable for the stupidity of a lawyer ultimately makes little sense , but it is an effective method for holding the government accountable for civil rights violations that our Supreme Court wrongly restricted with the qualified immunity doctrine.

On the key issue at hand, "extraordinary circumstances" is claimed when a public official reasonably acts upon the legal advice of an attorney. The Tenth Circuit applied this doctrine in V-1 Oil Co. v. State of Wyo., Dept. of Environmental Quality, 902 F.2d 1482 (10th Cir. 1990). In V-1 Oil, a police officer relied upon a government attorney who told him he needed no warrant for a search of gas tanks of a regulated business based on a state statute. The Tenth Circuit distinguished V-1 Oil from the Ms. Lawrence's claims, because the unconstitutionality of the statute at issue was a "close call". The Tenth Circuit found that the statute at issue in the current case was clearly unconstitutional. Thus, the police chief's reliance upon the city attorney's advice was unreasonable.

The Tenth Circuit's conclusion that the police chief should have known his actions were illegal is remarkably refreshing:

The constitutional inquiry in Mr. Reed's case, by contrast, is markedly simpler. Does the statute deprive an individual of a protected property interest? If so, does the statute provide a hearing? In the context of the Rawlins derelict vehicle ordinance, these are not difficult questions and they yield a clear result. It is therefore not too much to expect Mr. Reed to know that the ordinance was unconstitutional. In spite of the layers of complexity built up around the doctrine of qualified immunity, the fundamental inquiry is fairly simple: should the officer have known that his conduct was unlawful? For the reasons set forth above, we find that Mr. Reed should have known that his conduct was unlawful.

What are we to take from this? Again, if the officer consults with an attorney about whether he needs a search warrant, for instance, the attorney's advice will do the officer no good if the law itself is clearly established. The qualified immunity doctrine imposes upon officers a requirement that they know the clearly established law. Officers cannot avoid their responsibilty to know clearly establiched law by consulting with an attorney.

This opinion also provides a good outline of the due process responsibilities of municipalties when they tow vehicles and provides a good read for that issue alone.

The decision is doubly disappointing for this blogger as he was co-counsel for the plaintiff. Mr. Gutierrez was inebriated and lost on a cold morning. He saw a car that he thought he recognized and decided to sleep in the car. Albuquerque police were called to the scene. After a five minute investigation, the dog handler ordered the dog into the car and ordered the dog to attack. The two most bothersome facts were that the police came in close proximity to Mr. Gutierrez when an officer opened a car door and the dog was ordered to bite rather than to bark when it entered the car. Luckily, Mr. Gutierrez was not severely injured.

The Tenth Circuit simply sided with the jury on this one:

When viewed from the perspective of a reasonable officer on the scene, and in the light most favorable to Officer Hackett, the situation presented a man who had broken into an automobile in the middle of the night, who would not respond to any of the officers' repeated demands to emerge, and who kept his hands hidden in such a manner as to conceal a weapon. As soon as he revealed his hands to the officers, the police dog was called off. The jury determined that under these circumstances, Officer Hackett did not use constitutionally unreasonable force, and we determine that the record contains substantial evidence to support the verdict.

This was the second of two cases Brad Hall (Albuquerque) and I litigated against APD for dog attacks. The first case was successful in vindicating our client's rights and in changing APD policy. Smith v. City of Albuquerque, 01cv416 (United States District Court New Mexico) However, the Gutierrez result was and is a bitter pill.

There are no published Tenth Circuit decisions dealing with the use of police dogs to arrest persons. Perhaps, the decision to issue an unpublished opinion signals that the Tenth Circuit is not quite ready to weigh in on the issue. Thankfully, the opinion establishes no rule of law against plaintiffs. We were hopeful of achieving some rule of law that protected non-violent offenders from dog attacks.

A "Plea in Abeyance" allows a criminal defendant to escape a conviction, if he admits guilt and completes a period of probation. In New Mexico, we have deferred sentences, conditional discharges and pre-prosecution probation. All have the advantage of allowing a criminal defendant to escape a legal conviction. However, all require that a defendant factually acknowledge some guilt. The import of the Johnson decision for New Mexico civil rights lawyers is that a client will be bound to his factual agreement of guilt or responsibility even if the criminal charges result, eventually, in a dismissal of the charges.

Heck v. Humphries, 512 U.S. 477 (1994), stands for the broad proposition that an adjudication of guilt will bar a civil rights claim for wrongful arrest when a plaintiff sues upon the same set of facts. In applying the doctrine of judicial estoppel, the Tenth Circuit has excluded an additional class of potential plaintiffs from filing civil rights suits. The Court described the doctrine as follows:

"[W]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him." Davis v. Wakelee, 156 U.S. 680, 689 (1895). Although noting that this rule, known as judicial estoppel, is "'probably not reducible to any general formulation of principle,'" New Hampshire, 532 U.S. at 750 (citation omitted), the Court noted several factors which other courts have typically used to determine when to apply judicial estoppel. "First, a party's later position must be 'clearly inconsistent' with its earlier position." Id. (citation omitted). Moreover, the position to be estopped must generally be one of fact rather than of law or legal theory. Lowery v. Stovall, 92 F.3d 219, 224 (4th Cir. 1996). Second, "whether the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create 'the perception that either the first or the second court was misled.'" New Hampshire, 532 U.S. at 750 (citation omitted). The requirement that a previous court has accepted the prior inconsistent factual position "ensures that judicial estoppel is applied in the narrowest of circumstances." Lowery, 92 F.3d at 224. Third, "whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped." New Hampshire, 532 U.S. at 751.

The lesson for civil rights plaintiffs is to consult with a civil rights attorney as soon as possible. Kennedy & Oliver does both criminal defense and civil rights. Your freedom is of paramount importance. Thus, your interest in achieving success in the criminal matter is always our primary concern. However, as a general rule, if we cannot be confident of an acquital in a criminal matter, we must acknowledge that there are probably difficulties with any civil rights case. If we are confident of success, we will pursue your criminal defense through trial. An acquital is the surest method of preserving your rights.

The DJPC shares office space with "the Quaker run American Friends Service Committee (AFSC)". The Golden Police Department sought and received a search warrant to search the offices of the two organizations pursuant to a vandalism investigation. The facts of the case are worth reading to enlighten us of the precarious position of our First Amendment rights. The litigation presents important First Amendment issues, as the search warrant sought, among other items, membership lists.

Mr. Espinosa's claim came before the Tenth Circuit upon an officer's appeal of his motion to dismiss Mr. Espinosa's claim that the pat-down frisk was unreasonable. Mr. Espinosa was the office administrator for DJPC and his wife worked for AFSC. Mr. Espinosa arrived at the shared office after the execution of the search warrant had begun. When he arrived, a police officer asked for his identification, which he provided, and proceeded to pat-down Mr. Espinosa. The police conducted a frisk of Mr. Espinosa only. Mr. Espinosa brought suit for nominal damges and attorney fees.

In deciding that the frisk deprived Mr. Espinosa of his Fourth Amendment rights, the Tenth Circuit focused on the "nature of the search warrant being executed." The police were searching for items subject to First Amendment protection and Mr. Espinosa was not implicated in the alleged act of vandalism. The Tenth Circuit rejected an argument that officers should be allowed to frisk anyone present at the execution of a search warrant.

Kennedy & Oliver will no doubt be citing the Espinosa decision for years to come. We are preparing a suit on behalf of an African American male in Clovis who was searched in a restaurant, while eating with his son. A Clovis police officer claimed to smell marijuana on him. The Espinosa case gives us a legal precedent and a "give a darn" precedent, which sometimes is more important for our judiciary. We congratulate Mr. Espinosa and his attorneys - Mark Silverstein and Lino S. Lipinsky of Denver.

While the case involves an Eighth Amendment claim, the holding has broad application in Section 1983 for supervisory claims and municipal claims. (Claims of prison assault analyzed under Eighth and Fourteenth Amendments. Farmer v. Brennan, 511 U.S. 825, 847 (1994); Lopez v. LeMaster, 172 F.3d 756, 761 (10th Cir. 1999); Hovater v. Robinson, 1 F.3d 1063, 1068 (10th Cir. 1993)).

The factual details of the evidence considered and the Court's handling of the evidence are difficult to summarize. The case is an obvious must read for the practitioner with a similar claim. However, there are aspects of the opinion worth noting:

1) The Court inferred that post-incident misconduct may be used to show a supervisory defendant's mental state or policy.

To meet the Farmer test . . . Ms. Gonzales presented a series of incidents both preceding and following her assault to establish a genuine issue of material fact that the sheriff [possessed facts from which an inference can be drawn that the sheriff was aware of a "substantial risk of serious harm"].

2) The Court considered evidence of how the sheriff handled the investigation of the sexual assaults at issue.

Finally, and most astonishing, when first advised . . . he not only left the prisoners unprotected in the jail, but also in the custody and control of the very men accused of the assaults.

3) The Court considered acts of guard-on-inmate violence other than sexual assaults, other guard misconduct and the failure to provide security for the area where the assault occurred.

NOTE FOR NEW MEXICO PRACTIONERS:

While this case is of monumental importance in prosecuting supervisory liability claims, the New Mexico Tort Claims Act provides coverage for state employees who commit criminal acts while engaged in the service of their employers. Risk Management Division v. McBrayer, 129 N.M. 778, 2000 NMCA 104, 14 P.3d 43 (Ct. App. 2000). Thus, the importance of supervisory liability claims is not as great as in other jurisdictions. In New Mexico, a county's carrier would likely pay a judgment against a guard who sexually assaults an inmate.

Ralph Robbins was in jail for aggravated assault on a law enforcement officer. While in jail, he decided to sue the police officer he tried to run over with his car. He apparently sued the officer for pumping two bullets into his chest and one in his side. The court appointed an attorney for Mr. Robbins. While the magistrate judge found that Mr. Robbins had the three bullets coming to him, the judge took exception to the officer's decision to attempt to extract Mr. Robbins from his car by smashing his car window with a baton. It should be noted that the smash and attempted grab technique occurred before Mr. Robbins assaulted the officer with his car. The court found excessive force and awarded $1.00 to Mr. Robbins.

Having pressed lawyers into service, the magistrate judge balked at awarding the erstwhile lawyers $1.50 for their time. The magistrate awarded ten thousand dollars to the attorneys and, we hope, removed them from the pro bono panel for a year. The defendant appealed. The United States of America successfully intervened.

Judge Seymour wrote that the application of the PLRA fee cap to cases arising out of pre-incarceration deprivation of civil rights would be an absurd result. The PLRA, she wrote, was designed to curb frivolous litigation related to prison conditions. Judge Seymour marshalls a stirring defense of Section 1988. She writes quite powerfully:

the damages a plaintiff recovers contributes significantly to the deterrence of civil rights violations in the future. This deterrent effect is particularly evident in the area of individual police misconduct, where injunctive relief generally is unavailable. Congress expressly recognized that a plaintiff who obtains relief in a civil rights lawsuit does not do so for himself alone but is also a private attorney general, vindicating a policy that Congress considered of the highest importance. . . . Congress did not intend for fees in civil rights cases . . . to depend on obtaining substantial monetary relief.

Right on Judge Seymour! Judge Hartz files a stingy dissenting opinion in which he expresses sympathy for "an attorney appointed by the court who is not compensated for the services rendered." Judge Hartz would have the attorney paid from "court funds", leaving us to wonder his planet of origin.