Federal District Court Opinions
HITA v. STANSELL, (N.M. 11-2-2006) ELOY HITA, Plaintiff, v.
LYNDELL “MAX” STANSELL, Jr., TOMMY RICHBOURG, RICHARD
JOHNSON, and the CITY OF CLOVIS, NEW MEXICO, Defendants.
No. CIV 05-1088 LFG/LCS. United States District Court, D.
New Mexico. November 2, 2006
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
LORENZO GARCIA, Magistrate Judge
THIS MATTER comes before the Court on Defendants’ Motion
for Summary Judgment [Doc. 22], filed herein July 13, 2006.
Plaintiff filed his Response [Doc. 30] on September 11,
2006, and Defendants filed a Reply [Doc. 34] on September
26, 2006. The Court determines that oral argument is not
necessary. For the reasons given below, the Motion is
granted in part and denied in part.
Factual and Procedural Background
Plaintiff Eloy Hita (“Hita”) brings suit under 42 U.S.C.
§ 1983 and various causes of action under state law.
Hita’s claims against the three individual police officers
are based on allegations that he was wrongfully arrested
and subjected to excessive force during the arrest, that
his home was entered illegally and searched illegally, and
that he was maliciously prosecuted without probable cause
Page 2 and on the basis of false information supplied by
one of the officers. He also brings claims against the City
of Clovis for municipal liability with respect to the
alleged constitutional violations and for respondeat
superior liability with respect to the state law claims,
and against Defendant Richard Johnson for supervisory
liability.
Defendants deny Plaintiff’s allegations and raise various
affirmative defenses, including qualified immunity.
Procedural Background
Hita names four Defendants: Lyndell “Max” Stansell, Jr.
(“Stansell”) and Tommy Richbourg (“Richbourg”), both
patrolmen with the City of Clovis Police Department at the
time of the incident; Richard Johnson (“Johnson”), a
sergeant with the City of Clovis Police Department; and the
City of Clovis itself (“City”). All parties have consented
to proceed before the undersigned Magistrate Judge,
pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P.
73(b).
Earlier in the proceedings, Defendants Stansell, Johnson,
and the City[fn1] filed a Motion for Judgment on the
Pleadings and/or for Summary Judgment [Doc. 13] as to
Plaintiff’s cause of action for unreasonable search and
seizure, contending that a ruling by the state district
court should be afforded collateral estoppel effect. The
Court rejected Defendants’ collateral estoppel argument,
noting however that the ruling “does not preclude
Defendants from raising similar and other arguments for
dismissal of the Fourth Amendment claim on a motion for
summary judgment.” [Doc. 20, at 14].
Factual Background
The following factual summary is taken from Defendants’
Statement of Undisputed Material Page 3 Facts as set forth
in their Motion for Summary Judgment, and Plaintiff’s
position on factual matters as set forth in his Response.
On October 18, 2003, at approximately 2:20 a.m., patrolman
Stansell was dispatched to “the area just north of 813
Laurelwood” in Clovis, New Mexico to respond to a possible
domestic disturbance in progress. Stansell was advised by
the dispatch operator that the complaint involved a male
and female who were “possibly fighting.” When Stansell
arrived in the area he asked neighbors about any fighting
outside, and one of them identified 809C Laurelwood as the
apartment where the feuding couple could be found. At the
time, Hita and his wife lived at 809C Laurelwood Drive.
There is a small patio area outside the front door to the
apartment. The patio is enclosed by a split cedar wooden
fence with a gate. The only way to access the front door of
the apartment is to enter through the wooden patio gate and
proceed through the patio area to the front door. Thus, any
visitor, delivery man, guest, or neighbor who wanted to see
or speak to someone at the apartment would have to enter
the yard via the cedar slat gate.
Stansell approached the gate and saw Hita open the front
door to the apartment and step outside onto the patio area.
Stansell shone his flashlight in Hita’s direction and asked
Hita to come over and talk, telling him the police had
received a call about someone yelling outside. Hita refused
to speak to Stansell and went back into the apartment.
There is a dispute as to whether Hita yelled or cursed at
Stansell, but Defendants contend it is immaterial and, for
purposes of this Motion, they concede that Hita did not
curse.
Stansell then went to speak to the neighbor, Tiffany
Clewis, the person who had called the police about the
incident. She confirmed that she heard a male and female
yelling at each other Page 4 outside, next to a pickup
truck. Ms. Clewis told Stansell that she saw the female get
into the truck and heard the male angrily say to the
female, “you’re not going anywhere with my baby.” After
that discussion, Ms. Clewis said, the male went back into
the apartment and the female followed shortly thereafter.
The apartment was the Hita apartment.
After talking to Ms. Clewis and ascertaining that there
had been an angry encounter outside and that the male and
female had entered the Hita apartment, Stansell went back
to Hita’s apartment and entered the patio area through the
gate. The gate was unlocked. It was, however, closed and
secured by a latch located on the inside. Stansell could
not figure out how to open the gate at first. Defendants
assert that Stansell pulled on the gate and a cedar slat
broke off, while Hita asserts that Stansell broke a board
off the gate in order to gain access to the patio. However,
there is no dispute that Stansell pulled on the gate and
that a board broke off. Stansell then walked across the
patio and knocked on Hita’s front door.
Hita opened the interior wooden door to the apartment but
kept a glass storm door closed. He spoke to Stansell
through the glass door. Hita told Stansell that he did not
want to talk to him and said that Stansell was trespassing
and that he would file charges against Stansell if he did
not leave. Defendants claim that Hita was agitated and
yelling at this point; Hita denies that he ever yelled at
Stansell.
Stansell advised Hita that he was under arrest for
obstructing a police officer and ordered him to come out of
the apartment. Stansell states that Hita was extremely
agitated and that he slammed the wooden door. Hita denies
that he was agitated or that he slammed the door; it is
undisputed, however, that when Hita closed the door, one of
the door’s wood panels fell off. Hita says this particular
panel was loose and tended to fall off even with normal
opening and closing of the door. Page 5
Faced with a neighbor’s claims of an altercation and
yelling, and a dispute potentially involving a child, and
with Hita’s refusal to talk with the officer, Stansell
called for backup. Stansell asserts that he sought
assistance based on his perception of Hita’s “explosive
behavior,” on Hita’s refusal to talk to the officer even
after being informed he was under arrest, and on Stansell’s
concern for the welfare of the female in the apartment in
light of the report about possible fighting, including the
fact that an infant may have been present. Stansell
continued to knock on the door and call to Hita to open the
door in an effort to have Hita come out and talk, but Hita
refused. Stansell says that he heard yelling within the
house every few minutes and that, on a few occasions, he
heard yelling from the upstairs area of the apartment.
Richbourg and Johnson arrived in response to the backup
call. Johnson, a sergeant and the ranking officer at the
scene, turned on his belt recorded and began attempting to
speak with Hita. Thus, there is a tape of the entire
encounter with Hita following Johnson’s arrival. Although
Hita opened the wooden door and spoke to the officers
through the glass storm door, he refused to come out or
unlock the storm door. Johnson asked to speak to Hita’s
wife to ensure that she was all right. Initially Hita
refused, but after some yelling between Hita and his
spouse, Hita allowed his wife, Suzanne Hita (“Suzanne”) to
come to the door, but she did not step outside. Suzanne
appeared to the officers to be extremely scared and
agitated. Johnson noted that when he was trying to speak to
Suzanne, she looked at Hita and then at the doorknob as if
she was considering coming out of the apartment, but when
she moved close to the storm door Hita grabbed the handle
and prevented Suzanne from opening the storm door. Suzanne
looked at Hita before answering any of Johnson’s questions.
She seemed subdued and would not make eye contact with
Johnson, but was focused on Hita. Johnson felt that her
behavior was consistent with the behavior of a domestic
violence victim. Page 6 Hita acknowledges that Suzanne was
upset at the time but attributes Suzanne’s emotional
upheaval to the officers’ conduct.
After several futile attempts to get Hita to come down and
talk and to allow the officer to ensure that all was well,
the officers called Hita’s father and asked him to come to
the residence. Hita, Sr. was the owner of the apartment.
When the father arrived, Hita came to the front door to
speak to him. Hita unlocked the storm door, and Richbourg
then opened the door and stepped into the threshold of the
apartment. Richbourg states that he opened the security
door and entered the threshold in order to prevent Hita
from barricading himself inside again.
Defendants assert that, at this point, Richbourg advised
Hita that he was under arrest and told him to put his hands
behind his back, but Hita refused to cooperate. Defendants
further assert that Richbourg then took hold of Hita’s left
wrist, attempting to put him in handcuffs, but Hita
tightened his muscles, struggled and attempted to pull
away. During the struggle, Richbourg and Hita moved outside
the apartment into the yard or patio area. Hita’s
description of this sequence of events is that Richbourg
entered his apartment, grabbed him by the arm and pulled
him outside.
Stansell saw Hita and Richbourg come out of the doorway of
the apartment, struggling, and he went over to assist
Richbourg. Richbourg then used an “arm bar leverage
technique” to get Hita to the ground. Defendants state that
Hita’s father, who was standing nearby at this point,
pleaded with Hita to calm down and not to resist the
officers, and advised the officers that Hita had recently
had a shoulder injury. Hita’s description of these events
is that Richbourgh tripped him and slung him face-first to
the concrete sidewalk. Hita further contends that after he
was thrown to the ground, Richbourg and Stansell “battered
him while he was injured and restrained on the ground.” The
officers eventually were able to overcome the struggling
Hita, pull his hands behind his back and Page 7 secure
his wrists with handcuffs.
During the struggle, Johnson asked Hita’s father to tell
Hita that if he quit fighting with the officers there
wouldn’t be any problem. Hita, Sr. told Hita to “settle
down,” “don’t fight them,” and to “stop crying.”
Hita complained of shoulder pain after the arrest, and
Stansell took him to the hospital to be checked. A doctor
examined Hita and diagnosed a shoulder strain and a thumb
contusion. The doctor prescribed Ibuprofen and released
Hita. Stansell then transported Hita to the Curry County
Adult Detention Center for booking.
After Hita was arrested, Johnson interviewed Suzanne inside
the apartment. She confirmed that Hita had been arguing
with her and had grabbed her by the arm. She denied having
any marks as a result of the argument, but Johnson observed
red marks and scratches on her forearm and wrist. Suzanne
stated that, when she came to the door to speak to Johnson,
Hita was in front of her and telling her not to open the
door. She felt she “couldn’t really do much about it.” She
said that Hita would probably have been “really mad” at her
if she had opened the door. Johnson provided Suzanne with
information concerning assistance for domestic violence
victims, including information on shelters. Suzanne stated
that she was okay and asked for information on how to
assist in bonding Hita out of jail. The information
requested by Suzanne was provided.
Stansell swore out an Affidavit and Criminal Complaint
charging Hita with one count of battery on a household
member, one count of obstructing a police officer, and one
count of resisting/evading a police officer. On January 28,
2004, Hita was convicted in Curry County Magistrate Court
on one count of resisting, evading or obstructing an
officer. Hita appealed his conviction to New Mexico
District Court, Ninth Judicial District. Page 8
On September 17, 2004, Judge Joe Parker issued a letter
decision on the appeal, in which he found: (a) Stansell
initiated contact with Hita on October 18, 2003 in response
to complaints by neighbors and for the purpose of checking
on “a person’s welfare and to assist a person in need”; (b)
although Stansell entered Hita’s property, the
nonconsensual warrantless intrusion was limited to the
entry onto the patio and not the living quarters of the
home; (c) when the officers met with Suzanne in the
residence after Hita’s arrest, Suzanne did not deem the
meeting nonconsensual; and (d) the officers did not violate
Hita’s constitutional rights, nor was there an unreasonable
search and seizure.
Despite these findings, Judge Parker overturned Hita’s
conviction on grounds that the jury acquitted Hita on the
charge of resisting or abusing an officer but found Hita
guilty of obstructing an officer, and that “obstructing an
officer” as pled in the Criminal Complaint is not an
offense made punishable by state statute.
Discussion
As noted above, this Court declined to give collateral
estoppel effect to Judge Joe Parker’s finding that no
unreasonable search and seizure occurred, but noted that
Defendants were free to raise the issue anew in a Motion
for Summary Judgment. Defendants have done so and contend
as well that all of Hita’s claims are subject to summary
judgment and that the individual defendants are entitled to
qualified immunity on Hita’s constitutional claims.
Standards for Summary Judgment and Qualified Immunity
Summary judgment is appropriate when the moving party can
demonstrate that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v.
S.H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598 (1970);
Quaker State Minit-Lube, Inc. v. Fireman’s Fund Ins. Co.,
52 F.3d 1522, 1527 (10th Cir. 1995). The Page 9 party
moving for summary judgment has the initial burden of
establishing, through admissible evidence in the form of
depositions, answers to interrogatories, admissions,
affidavits or documentary evidence, that there is an
absence of evidence to support the opposing party’s case
and the moving party is entitled to judgment as a matter of
law. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.
Ct. 2548, 2554 (1986).
Once the moving party meets its burden, the party opposing
the motion must come forward with specific facts, supported
by admissible evidence, which demonstrate the presence of a
genuine issue for trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248-49, 106 S. Ct. 2505, 2510 (1986); Biester
v. Midwest Health Servs, Inc., 77 F.3d 1264, 1266 (10th
Cir. 1996). The party opposing the motion may not rest upon
the mere denials of his pleadings to avoid summary
judgment, nor will mere argument or contention of counsel
suffice. Fed.R.Civ.P. 56(e); Bacchus Indus., Inc. v. Arvin
Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991).
“The mere existence of a scintilla of evidence in support
of the nonmovant’s position is insufficient to create a
dispute of fact that is `genuine.'” Lawmaster v. Ward, 125
F.3d 1341, 1347 (10th Cir. 1997). Summary judgment can be
entered only if there is insufficient evidence for a
reasonable jury to return a verdict for the party opposing
the motion. Anderson, 477 U.S. at 249, 106 S. Ct. at 2511.
Thus, the Court’s inquiry is “whether the evidence presents
a sufficient disagreement to require submission to a jury
or whether it is so one-sided that one party must prevail
as a matter of law.” Id., at 251-52, 106 S. Ct. at 2512.
The Court in considering a motion for summary judgment
construes the factual record and the reasonable inferences
therefrom in the light most favorable to the party opposing
the motion. Foster v. Alliedsignal, Inc., 293 F.3d 1187
(10th Cir. 2002). Page 10
A summary judgment motion asserting a qualified immunity
defense is determined somewhat differently from other
summary judgment motions. When the defendant raises
qualified immunity, the burdens shift as outlined in
Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151 (2001).
First, the court must consider whether the factual record,
taken in the light most favorable to the plaintiffs,
demonstrates that the officer’s conduct violated the
constitution. If no constitutional right would be violated
if the plaintiff’s allegations are established, then there
is no necessity for further inquiries concerning qualified
immunity, and summary judgment is appropriate.
If, however, a violation could be made out, the next step
is to ask whether the right violated was “clearly
established” in a particularized sense. In determining
whether a right was clearly established at the time of the
alleged injury, the relevant inquiry is whether it would be
clear to a reasonable officer that his conduct was unlawful
in the situation he confronted. Summary judgment based on
qualified immunity is appropriate if the law did not put
the officer on notice that his conduct would be clearly
unlawful. Id., 533 U.S. at 201-02; Cortez v. McCauley, 438
F.3d 980, 988 (10th Cir. 2006).
Requiring the law to be clearly established provides
defendants with “fair warning” that their conduct is
unconstitutional. Harman v. Pollock, 446 F.3d 1069, 1077
(10th Cir. 2006). The law is “clearly established” when a
Supreme Court or Tenth Circuit decision is on point, or if
the clearly established weight of authority from other
courts shows a reasonable officer would understand that
what he is doing violates the plaintiff’s rights. Id..
If the plaintiff establishes both elements of the test
— that is, a constitutional violation and “clearly
established” law — then the defendant bears the
traditional of burden of showing that no material issues of
fact remain that would defeat the claim of qualified
immunity. Romero v. Fay, Page 11 45 F.3d 1472, 1475 (10th
Cir. 1995).
Qualified immunity “grants `officers immunity for
reasonable mistakes as to the legality of their actions. .
. . The concern of the immunity inquiry is to acknowledge
that reasonable mistakes can be made as to the legal
constraints on particular police conduct.” Holland ex rel.
Overdorff v. Harrington, 268 F.3d 1179, 1196 (10th Cir.
2001). If an officer makes a reasonable mistake as to what
the law requires, then he is entitled to the immunity
defense. However, summary judgment on qualified immunity
grounds is only appropriate in the absence of disputed
facts that are material to a determination of
reasonableness. Medina v. Cram, 252 F.3d 1124, 1131 (10th
Cir. 2001).
The Court will address the propriety of summary judgment
separately as to each of Plaintiff’s causes of action.
First Cause of Action: Unreasonable Search and Seizure
Hita alleges for his First Cause of Action that he had a
reasonable expectation of privacy in his home and in the
protected curtilage area of his home, and that the
defendant officers violated his Fourth and Fourteenth
Amendment rights against unreasonable searches and seizures
when they conducted a warrantless, non-consensual entry
into, first the patio, then the apartment itself. He claims
he “enjoyed an absolute right to engage or not engage in
communications with police officers” in these areas.
[Complaint, Doc. 1, at § 42].[fn2] Page 12
Hita contends further that his constitutional rights were
violated in that the officers arrested him without a
warrant, without probable cause and without exigent
circumstances. Finally, he asserts that the officers
unconstitutionally searched his home without justification,
consent, or a warrant, and without probable cause or
exigent circumstances. He cites Defendant Johnson, the
ranking officer at the scene, for supervisory liability and
the City for municipal liability, alleging that Johnson
failed to adequately train and supervise his subordinate
officers and that these failures reflected the customs and
policies of the Defendant City. [Complaint, Doc. 1, at
§§ 43-45].
Defendants counter that the officers’ entry into the patio
area, as well as into the apartment itself, was objectively
reasonable and did not violate Hita’s constitutional rights.
In addition, they contend that they had probable cause to
arrest Hita, based on information they had from witnesses
and from their own perceptions in their encounter with Hita
on the night in question. Finally, they assert that their
post-arrest entry into and search of Hita’s apartment to
ascertain the safety of others, including a child, did not
violate his constitutional rights.
A. Initial Entry Onto Hita’s Property
The facts relevant to this claim are as follows:
Stansell was the first police officer to have contact with
Hita on the night in question. He responded to a report at
2:20 a.m. that a man and a woman in the neighborhood were
“possibly fighting.” When he arrived in the area neighbors
directed him to Hita’s apartment, the front door and patio
of which were enclosed by a fence with a gate. Stansell
approached the gate and saw Hita open his front door and
step out in to the patio area. He shined his flashlight at
Hita and asked him to come over and talk. Hita refused to
speak to Stansell, went back into the apartment, and closed
his door. Page 13
At this point, Stansell left Hita’s yard and went to speak
to the person who had reported the incident. She told him
that she had seen a man and woman fighting outside the
apartment, that the female got into a pickup truck, that
the man told the woman, “you’re not going anywhere with my
baby,” and that the male then went into the Hita apartment
and the female followed him.
With this information provided by the neighbor, and out of
concern for the safety of the parties, and potentially a
child, Stansell then went back to Hita’s apartment. The
only route to the front door of the apartment was through
the gate and across the enclosed patio area, and Stansell
took this route. The gate was latched but not locked, and
Stansell initially couldn’t figure out how to open it. In
the process of entering the patio, he broke a board off the
gate. He stepped to the front door and knocked.
Hita opened the interior wooden door but kept the glass
storm door closed and spoke to Stansell through the glass.
Hita told Stansell he didn’t want to talk to him and said
Stansell was trespassing and that he would file charges
against him if he didn’t leave. At this point, Stansell
advised Hita that he was investigating a complaint about a
fight, that he wanted to talk to the woman and that Hita
was interfering with the investigation. He told Hita that
he was under arrest for obstructing a police officer and
ordered Hita to come out of the apartment. Hita responded
by slamming the wooden door, a piece of which fell off.
Hita alleges that he had a constitutional right to refuse
to speak with a police officer, in his own home. He argues
that he was simply exercising his right to be left alone.
Defendants counter that they had information which led them
reasonably to believe that a woman had been threatened by
Hita and that she may be in danger, and their intrusion
into the curtilage of Hita’s home was therefore reasonable
and justified under the Fourth Amendment. Page 14
At this point, Stansell had information that a man had
argued with a woman on the street loudly enough that a
neighbor heard the quarrel and called the police. He knew
that a neighbor reported that the man told the woman,
“you’re not going anywhere with my baby,” and that the man
and woman thereafter entered the Hita apartment. He knew
that the man inside that apartment refused to talk to him
and told him he would press charges if Stansell didn’t
leave.
The Court finds that Stansell’s actions in entering the
patio area, which was the only route to the front door,
were reasonable as a matter of law.[fn3]
The Fourth Amendment protects “[t]he right of the people to
be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S. Const.,
amend. IV. The home is entitled to the greatest Fourth
Amendment protection. However, “the Supreme Court has
repeatedly recognized that only unreasonable searches are
proscribed.” United States v. Najar, 451 F.3d 710, 713
(10th Cir. 2006). While warrantless searches and seizures
inside a home are presumptively unreasonable, Payton v. New
York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380 (1980), “the
presumption is not absolute. `When faced with special law
enforcement needs, diminished expectations of privacy,
minimal intrusions, or the like, the [Supreme] Court has
found that certain Page 15 general, or individual,
circumstances may render a warrantless search or seizure
reasonable.'” Najar, supra, at 713, quoting from Illinois
v. McArthur, 531 U.S. 326, 330, 121 S. Ct. 946 (2001).
Hita alleges that the Defendant police officers violated
his Fourth Amendment right when they entered the patio
area. The patio area can properly be deemed part of the
“curtilage” of Hita’s residence. The curtilage of a house
is “the area so intimately tied to the home itself that it
should be placed under the home’s umbrella of Fourth
Amendment protection.” United States v. Cavely, 318 F.3d
987, 993 (10th Cir. 2003). It is protected as part of the
“area that harbors the intimate activity associated with
the sanctity of a man’s home and the privacies of life.
[Internal punctuation omitted].” Id., quoting from United
States v. Dunn, 480 U.S. 294, 300, 107 S. Ct. 1134 (1987).
The Court finds that Hita has made the requisite showing
that he maintained a legitimate expectation of privacy in
the patio area, and that it was part of the “curtilage.”
Factors to be considered include the proximity of the area
to the home, whether the area is included within an
enclosure surrounding the home, the nature of the uses to
which the area is put, and the steps taken by the resident
to protect the area from observation by people passing by.
Cavely, supra, at 993-94.
It is undisputed that the patio area was immediately
adjacent to the front door of the apartment, and that there
was a high fence around the patio which shielded the front
door from the view of passers-by. Furthermore, Hita states
in his Affidavit that throughout the time he lived at that
address, only invited guests had access to the patio area
and the front door of the apartment. No service workers
required access to the patio area or to the front door.
When the gate to the patio was closed and latched, the
patio area provided a secure play area for his child.
[Affidavit of Eloy Hita, at § 4, attachment to Doc.
22].
However, it is clear from the record that while Hita had
some expectation of privacy in the Page 16 patio area, it
was nevertheless a “plac[e] visitors could be expected to
go (e.g., walkways, driveways, porches).” United States v.
Hatfield, 333 F.3d 1189, 1194 (10th Cir. 2003). It was the
only access from the public street to Hita’s front door.
Any delivery person with a package, any neighbor that
wanted to visit, any family member coming for dinner or
friend bringing a child over to play, would, of necessity,
have to enter the gate to approach and knock on the door.
Although the gate into the area was latched, it was not
locked. There were no signs prohibiting entry or warning
visitors away. The only way to get to the front door of the
apartment was through the gate and across the patio, and
this route constituted the “principal means of access to
the dwelling,” United States v. Thomas, 120 F.3d 564, 571
(5th Cir. 1997), and thus the occupants had a diminished
expectation of privacy in that area. United States v.
Titemore, 437 F.3d 251, 252, 258-59 (10th Cir. 2006)
(“Because the trooper approached a principal entrance to
the home using a route that other visitors could be
expected to take, we hold that the trooper’s actions did
not violate the Fourth Amendment. . . . [T]he portion of
the curtilage that is used as a normal route of access for
anyone visiting the premises is only a semi-private area”
[internal punctuation omitted]).
Stansell’s initial purpose in entering the patio area was
to access the front door in order to speak to Hita and to
ensure that the woman with whom he had been arguing was not
in any danger. In addition, there was a report that a baby
was present at the scene, who may well have been the
subject of the argument which prompted the call to police.
It was eminently reasonable for Stansell to approach the
door to the apartment and ask to speak to the man and woman
who were reported to be fighting and, from a public-safety
standpoint, ensure that the woman and child were not in any
danger.
The Court finds no issue of fact as to the reasonableness
of Stansell’s actions. It was entirely Page 17 reasonable
and proper for the police to investigate and ensure no one
was in danger. The patio, even if curtilage, carried a
diminished expectation of privacy. In addition, the
intrusion was justified by exigent circumstances which
justified the warrantless entry. As Defendants point out, a
police officer has a statutory duty “to investigate all
violations of the criminal laws of the state which are
called to the attention of any such officer or of which he
is aware.” N.M.S.A. (1978) § 29-1-1. While there is
no special exception to the warrant requirement simply
because the circumstances involved a domestic disturbance
call, United States v. Davis, 290 F.3d 1239, 1244 (10th
Cir. 2002), there were sufficient exigent circumstances to
justify Stansell’s approach to the front door through the
enclosed patio area.
At this point, Stansell knew that a man and woman had been
fighting outside, that the man made a statement that could
be interpreted as a threat and which involved a baby, that
the feuding pair later entered the apartment, and that the
man whom Stansell initially encountered in the patio and
who had emerged from the apartment was angry,
uncooperative, refused to speak with him and threatened
legal action if he did not leave. After this initial
encounter, Stansell interviewed a neighbor who confirmed
the information received in the dispatch call.
Under these circumstances, a reasonable officer faced with
this information would have done exactly what Stansell did.
He had a duty to investigate the report of possible
domestic violence, and the Court finds as a matter of law
that exigent circumstances existed which justified the
warrantless intrusion into the patio.
B. Entry into Threshold of the Apartment and the Arrest
Hita argues next that the officers violated his
constitutional rights when they entered his apartment and
arrested him. The facts relevant to this claim are as
follows: Page 18
After Hita slammed the door on the officer, Stansell began
to ring the doorbell and knock on the door in an attempt to
have Hita come outside so he could complete his
investigation into the “possible domestic situation.” [Doc.
22, Ex. 1]. He also called for backup, and Defendants
Johnson and Richbourg, and other officers, thereafter
arrived on the scene. Stansell stated in his incident
report that Hita was very agitated, that every few minutes
he heard Hita curse and yell, and that at one point he saw
Hita in an upstairs window making an obscene gesture toward
the officers.
Hita denies that he yelled or cursed at the officers. It
is undisputed, however, that he refused to come out of the
apartment and continued to resist the officers’ requests
that he come out, talk to them, and allow them to speak to
his wife outside Hita’s presence. At this point, Stansell
does not know if Hita is intoxicated, armed, or posing a
clear danger to himself or others. He does know that there
has been an argument at least loud and troubling enough to
cause a neighbor to call the police. He knows that Hita is
agitated, angry and acting unreasonably. He knows that a
woman and perhaps a child could be at risk. He knows that
Hita is refusing a reasonable request that could easily
resolve the situation.
When Johnson arrived on the scene, he turned on his belt
tape and attempted numerous times, over a period of
approximately an hour, to speak to Hita and to have him
come outside. During this period, Hita would open the
wooden door and speak to officers, but he refused to come
out or to unlock the storm door. Johnson asked to speak to
Hita’s wife to ensure that she was all right. It was only
after significant prodding that Hita finally allowed
Suzanne to come to the door, but he would not let her step
outside.
The belt tape makes clear that, throughout the encounter,
Johnson’s voice was calm and firm. Johnson asked repeatedly
that Hita come out and talk to the officers. Hita alleges
that he was not Page 19 agitated, but the belt tape
belies this statement. He repeatedly refuses to speak with
the officers about the circumstances leading up to the
neighbor’s call to police; he tells his wife to come to
door but then will not allow her to go outside; and he
threatens the officers with legal action. He repeatedly
states that he knows his rights and taunts the officers.
[Doc. 22, Ex. 8].
The officers stated that when they saw and spoke with
Suzanne through the storm door, Hita was present at all
times, and that when she moved close to the door Hita
grabbed the handle and prevented her from opening the door.
She appeared to the officers to be extremely scared and
agitated and looked at Hita before answering any of their
questions. She seemed subdued and would not make eye
contact with the officer. Johnson said this behavior was
consistent with that of a domestic abuse victim. The
officers felt that Hita was preventing her from coming
outside, and Suzanne confirmed in an interview following
Hita’s arrest that Hita stood between her and the door, did
not allow her to open the door, and would have been angry
if she had gone outside.
At any point in this period of confrontation, Hita could
have defused the situation by simply going outside and
talking to the officers, and allowing them to speak with
his wife in a neutral setting. He consistently refused to
do these things. The tape reveals Johnson telling him
continually that the police just wanted to ensure that
everyone was all right and that they would leave once they
were allowed to do their jobs. Hita’s only response was
belligerent assertion of his right not to talk to them, and
threats to sue if they did not leave.
At Hita’s suggestion, the police officers called Hita’s
father. When Hita, Sr. arrived, Hita unlocked the storm
door. Richbourg, who had posted himself near the front
door, stepped onto the threshold and advised Hita that he
was under arrest. Richbourg says that he made this entry in
order to prevent Hita from barricading himself inside
again. Hita was grabbed by the wrist, but he struggled
Page 20 and sought to free himself. Hita and Richbourg
struggled in the entryway and eventually emerged from the
front door, still engaged in a scuffle. Eventually the
officers were able to subdue Hita on the ground and
handcuff him.
Hita alleges that the officers’ actions in entering his
apartment violated his constitutional right to be from
unreasonable searches, and the arrest violated his right to
be from unreasonable seizures.
1. The Entry
As noted above, searches and seizures inside a home without
a warrant are presumptively unreasonable. Payton v. New
York, supra, 445 U.S. at 586. An exception to the warrant
requirement exists, however, in the case of a “plausible
claim of specially pressing or urgent law enforcement need,
i.e., `exigent circumstances’ . . . [assuming that] the
restraint at issue was tailored to that need, being limited
in time and scope . . . and avoiding significant intrusion
into the home itself.” Illinois v. McArthur, supra, 531
U.S. at 331.
In assessing whether exigent circumstances are present
which permit a warrantless entry, the Court must “evaluate
the circumstances as they would have appeared to prudent,
cautious and trained officers. . . . [The] determination
ultimately depends on the unique facts of each
controversy.” United States v. Parra, 2 F.3d 1058, 1064
(10th Cir. 1993) (internal punctuation omitted).
At the point when Richbourg stepped into the threshold to
arrest Hita, the officers were concerned with both
restraining him, and with ensuring that a possible domestic
violence victim was unharmed and not in any danger. “[T]he
Fourth Amendment does not bar police officers from making
warrantless entries and searches when they reasonably
believe that a person within is in need of immediate aid.”
Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct. 2408, 2413
(1978).
The Court finds that the officers in this instance
reasonably believed that Suzanne Hita might Page 21 be in
danger of domestic abuse, based on the report of a loud
quarrel outdoors in the early hours of the morning, a report
of language from Hita toward his wife which could be
construed as threatening, the possible presence of a baby
at the scene, Hita’s unexplained and unreasonable refusal
to respond to the officers’ requests that he come outside
and allow them to talk to his wife in private, his refusal
to allow Suzanne to leave the apartment, and Suzanne’s
demeanor at the scene which Johnson felt was consistent
with that of a domestic abuse victim.
Hita asserts that the fact that Suzanne came to the door
on more than one occasion and told the officers that she
was all right demonstrates that the officers’ actions were
unreasonable. However, Hita would not allow Suzanne to come
out and speak to the officers on her own. Police officers
called to the scene of possible criminal activity are not
obliged to credit reassuring statements of the purported
victim and thereafter abandon the investigation without
satisfying themselves that the person is, in fact,
uninjured and safe from further harm. “That is why we give
great latitude to police officers when presented with
domestic disturbance scenarios.” Phillips v. James, 422
F.3d 1075, 1082 (10th Cir. 2005). “The Fourth Amendment does
not require police to be so credulous.” United States v.
Johnson, 364 F.3d 1185, 1192 (10th Cir. 2004).
The Court finds as a matter of law that, under all of the
circumstances, Richbourg’s entry into the apartment at the
point that Hita unlocked the door was justified under the
“exigent circumstances” exception to the warrant
requirement. Hita’s behavior throughout the encounter up to
this point was resistant and obstructive, and the entry was
necessary to prevent Hita from doing what a reasonable
officer under the circumstances would have expected him to
do, that is, to barricade himself inside again.
Furthermore, Richbourg did not intrude into the apartment
any farther than was necessary to reach Hita and attempt to
secure him. Page 22
2. The Arrest
A police officer violates an arrestee’s clearly
established Fourth Amendment right to be free of
unreasonable seizure if he makes a warrantless arrest
without probable cause. Olsen v. Layton Hills Mall, 312
F.3d 1304, 1312 (10th Cir. 2002), citing Tennessee v.
Garner, 471 U.S. 1, 7, 105 S. Ct. 1694 (1985). Probable
cause exists if facts and circumstances within the
arresting officer’s knowledge and of which he has
reasonably trustworthy information are sufficient to lead a
prudent person to believe that the arrestee has committed
or is committing an offense. Romero v. Fay, 45 F.3d 1472,
1476 (10th Cir. 1995). “The primary concern is whether a
reasonable officer would have believed that probable cause
existed to arrest the defendant based on the information
possessed by the arresting officer. [Internal punctuation
omitted].” Olsen v. Layton Hills Mall, supra, at 1312.
In an action under § 1983 involving a warrantless
arrest, the court must grant a police officer qualified
immunity if a reasonable officer could have believed that
probable cause existed to arrest the plaintiff. Romero v.
Fay, supra, at 1476. However, when there are unresolved
disputes of fact relevant to whether the officer acted
reasonably, summary judgment on qualified immunity grounds
is not appropriate. Farmer v. Perrill, 288 F.3d 1254 (10th
Cir. 2002).
Defendants contend that the officers in this case had
probable cause to believe that assault or battery against a
household member was occurring or was about to occur.
Assault against a household member is defined as “(1) an
attempt to commit a battery against a household member; or
(2) any unlawful act, threat or menacing conduct that
causes a household member to reasonably believe that he is
in danger of receiving an immediate battery.” N.M.S.A.
(1978) § 30-3-12(A). Battery against a household
member is defined as “the unlawful, intentional touching or
application of force to the person of a household member,
when done in a rude, insolent or angry manner.” Page 23
N.M.S.A. (1978) § 30-3-15(A). These statutes were in
force, in the above-quoted versions, at the time of the
incident in October 2003.
Defendants further contend that they had probable cause to
believe that Hita committed the offense of “resisting,
evading or obstructing an officer.” That crime is defined
as “intentionally fleeing, attempting to evade or evading
an officer of this state when the person committing the act
of fleeing, attempting to evade or evasion has knowledge
that the officer is attempting to apprehend or arrest him”;
or “resisting or abusing any judge, magistrate or peace
officer in the lawful discharge of his duties.” N.M.S.A.
(1978) § 30-22-1(B), (D). Again, this statute was in
force, in the above-quoted version, at the time of the
incident in October 2003.
There is no dispute that Hita refused to comply with the
reasonable requests of Stansell and Johnson. Both before
and after he was informed him that he was under arrest, he
remained inside his apartment and refused all requests and
demands that he come outside and speak with the officers.
He would not permit the officers to speak to his wife
outside of his presence, and although they were able to see
her and speak to her through the glass door, Hita grabbed
the door handle when she approached it, and the officers
felt her demeanor and behavior were consistent with that of
a battered spouse.
As was true in Phillips v. James, supra, at 1084 & n. 5:
From the beginning Mr. Phillips’ actions were
unreasonable. He had the power to defuse the situation by
coming out of his bedroom and talking to the officers to
allow them to reasonably assess the situation. . . .
Although Mr. Phillips was willing to talk to some extent
with the officers through his bedroom door, the officers
were reasonable . . . in their insistence that they
communicate face-to-face in order to appropriately assess
the situation in light of the purpose for which they were
there. See, Hiibel, 124 S. Ct. at 2458 (recognizing the
wide latitude officers have in responding to domestic
disturbance calls). Page 24
Defendants in this case were justified in their reasonable
belief that they had probable cause to arrest Hita, and the
Court finds as a matter of law that they did not violate
his constitutional rights when they initiated the arrest at
the threshold of the apartment. The fact that Hita was
later found not guilty on two counts and that his
conviction on the remaining count was overturned on appeal
does not undermine this finding. The results of later
criminal proceedings are not relevant in determining
whether police officers on the scene had probable cause to
make a warrantless arrest, as that determination is to be
made in light of the facts confronting the officer at the
time of the arrest. Summers v. Utah, 927 F.2d 1165, 1166-67
(10th Cir. 1991). “The Constitution does not guarantee that
only the guilty will be arrested. If it did, § 1983
would provide a cause of action for every defendant
acquitted — indeed, for every suspect released.”
Pino v. Higgs, 75 F.3d 1461 (10th Cir. 1996).
The first prong of the qualified immunity analysis results
in a finding that the factual record, even taken in the
light most favorable to the plaintiff, demonstrates that
the officers’ conduct in the entry and arrest did not
violate the constitution. There is thus no necessity for
further inquiries concerning qualified immunity, and
summary judgment is appropriate on this claim.
C. The Post-Arrest Search of the Apartment
Hita also claims under the First Cause of Action for
unreasonable search and seizure that following the arrest,
the officers “conducted a full-scale entry and search of
the home of Eloy Hita, entering the most intimate recesses
of his home, without justification, without consent,
without a warrant and without probable cause or exigent
circumstances.” [Complaint, Doc. 1, at § 43].
However, there is no evidence on the record that the
officers conducted a post-arrest search of any sort in
Hita’s home. After Stansell took Hita away, Richbourg and
Johnson interviewed Page 25 Suzanne inside the apartment.
She told them that Hita grabbed her by the wrist when they
were arguing earlier. The officers observed some marks and
scratches on her arm and wrist, and she confirmed that the
marks were caused when Hita grabbed her. [Doc. 22, Ex. 1].
There is nothing in any of the officers’ reports, or
anywhere else on the record, to indicate that a search of
the apartment was conducted, nor is there any allegation
or indication that the interview with Suzanne in the
apartment after the arrest was non-consensual.
Summary judgment will be granted on the claim of an
unreasonable search of the apartment.
Second Cause of Action: Municipal Liability for Civil
Rights Violations
Hita’s Second Cause of Action is directed toward the City.
He contends that:
Defendant City of Clovis, has demonstrated deliberate
indifference to the conduct of its police officers and
police officers supervisors in these sort of
circumstances, creating an environment wherein police
officers are encouraged routinely to arrest citizens for
“obstruction,’ when in fact no criminal act has taken
place. Defendant City of Clovis has demonstrated a
deliberate indifference to the inadequate training,
supervision and discipline of its police officers, and
police officers supervisors, with respect to the limits of
their authority and the Constitutional prohibitions
against warrantless entry into the homes of citizens,
warrantless arrest, and the arrest of citizens without
probable cause.
[Complaint, § 48].
It is well-settled that a municipality cannot be held
liable for constitutional violations by its employees under
a theory of respondeat superior; rather, the City’s
liability in an action under § 1983 can be based
only on its own unconstitutional or illegal policies or
customs. Monell v. Dept. of Soc. Services, 436 U.S. 658,
694, 98 S. Ct. 2018, 2037-38 (1978); Wilson v. Meeks, 98
F.3d 1247, 1255 (10th Cir. 1996).
Here, Hita alleges that the City’s policy of inadequate
training, supervision and discipline with Page 26 respect
to search and seizure techniques, and arrests for
“obstruction,” proximately caused the deprivation of his
constitutional rights. However, a municipality may not be
held liable where there was no underlying constitutional
violation by any of its officers. Hinton v. City of
Elmwood, 997 F.2d 774, 782 (10th Cir. 1993); Wilson v.
Meeks, supra, at 1255.
As discussed above, the Court finds no genuine issue of
fact regarding Hita’s allegation of constitutional
violations with respect to search and seizure or the
warrantless arrest. And, as discussed below, the Court
finds as a matter of law that no constitutional violation
occurred with respect to alleged false statements and
claims of “obstruction.” As these are the only bases
alleged by Hita in support of its municipal liability
claim, summary judgment is appropriate on the Second Cause
of Action.[fn4]
Third Cause of Action: Excessive Use of Force
In his Third Cause of Action, Hita alleges that Defendant
Richbourg forced his way into Hita’s home and forcibly
removed him outside to the patio area where Richbourg
utilized a slashing leg whip maneuver, tripping Hita and
slinging him face-first onto the concrete. Hita alleges
further that, after he was thrown to the ground, Richbourg
and Stansell continued to batter him while he was injured
and after he was restrained on the ground, despite pleas
from his father and brother-in-law to stop.
Hita further alleges that when his brother-in-law
complained to officers about the ill treatment accorded
Hita, the officers told him to shut up or he would be next.
Hita claims he sustained injuries to his head, hand, arms,
shoulders and legs as a result of the beating. This
treatment, he alleges, Page 27 constituted excessive and
unreasonable force in violation of his rights under the
Fourth and Fourteenth Amendments to the Constitution, as
well as under the New Mexico Constitution.[fn5] [Complaint,
Doc. 1, at §§ 27-30, 51-53].
Defendants Richbourg and Stansell move for summary judgment
on this claim. They assert that they reasonably believed
that Hita may have committed, or was going to commit, a
battery upon his wife. In addition, they assert that Hita
was resisting arrest and refusing their reasonable requests
to come out of the apartment and cooperate with the
officers.
They do not deny that they brought Hita to the ground and
handcuffed him, but they assert that the amount of force
used in effecting Hita’s arrest was reasonable and
commensurate with the resistance offered by Hita and that
their conduct did not violate the Fourth Amendment.
Defendants argue that there are no material issues of fact
with respect to whether their actions were objectively
reasonable. In the alternative, they assert qualified
immunity in that Hita failed to demonstrate violation of a
clearly established constitutional right.
In the discussion of the First Cause of Action, the Court
determined as a matter of law that Defendants had probable
cause to arrest Hita and did not violate his right to be
free from unreasonable search and seizure in effecting the
arrest. However, Hita may still maintain an independent
claim that he was subjected to excessive force during an
otherwise lawful arrest. Cortez v. McCauley, supra, at 996
(“Once summary judgment is granted in the officer’s favor
on the wrongful arrest claim, the plaintiff’s claim that
the officer used excessive force must be analyzed
independently” [internal punctuation omitted]).
The right to be free from police use of excessive force
arises under the Fourth Amendment’s Page 28 prohibition
against unreasonable seizures of the person. Graham v.
Connor, 490 U.S. 386, 394, 109 S. Ct. 1865, 1871 (1989).
The right to make an arrest necessarily carries with it the
right to use some degree of physical coercion or threat
thereof in order to effect it. Id., 490 U.S. at 396.
The proper application of the test of reasonableness
“requires careful attention to the facts and circumstances
of each particular case, including the severity of the
crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether
he is actively resisting arrest or attempting to evade
arrest by flight. . . . [T]he question is whether the
totality of the circumstances justifies a particular sort
of seizure.” Id. (internal punctuation omitted).
The reasonableness of a particular use of force must be
judged from the perspective of the officer on the scene,
rather than with hindsight; it is “[n]ot every push or
shove, even if it may later seem unnecessary in the peace
of a judge’s chambers,” that violates the Fourth Amendment.
Id.. “The calculus of reasonableness must embody allowance
for the fact that police officers are often forced to make
split-second judgments — in circumstances that are
tense, uncertain, and rapidly evolving — about the
amount of force that is necessary in a particular
situation.” Id., 490 U.S. at 396-97. The question is
whether the officers’ actions are “objectively reasonable”
in light of the facts and circumstances confronting them,
without regard to their underlying motivation.
As noted above, even if a defendant officer’s actions are
not objectively unreasonable, he may still be entitled to
qualified immunity on a claim of excessive force.
“Qualified immunity operates . . . to protect officers from
the sometimes `hazy border between excessive and acceptable
force,’ . . . and to ensure that before they are subjected
to suit, officers are on notice their conduct is unlawful.”
Saucier v. Katz, supra, 533 U.S. at 206.
The concern of the qualified immunity inquiry is to
acknowledge that Page 29 reasonable mistakes can be made
as to the legal constraints on particular police conduct.
It is sometimes difficult for an officer to determine how
the relevant legal doctrine, here excessive force, will
apply to the factual situation the officer confronts. An
officer might correctly perceive all of the relevant facts
but have a mistaken understanding as to whether a
particular amount of force is legal in those
circumstances. If the officer’s mistake as to what the law
requires is reasonable, however, the officer is entitled
to the immunity defense. . . . The question is what the
officer reasonably understood his powers and
responsibilities to be, when he acted, under clearly
established standards.
Id., 533 U.S. at 205, 208.
Thus, qualified immunity can apply in excessive force cases
if an officer operates under a mistaken belief as to the
legality of his actions, so long as the belief was
reasonable. Id., 533 U.S. at 205; Holland ex rel Overdorff
v. Harrington, supra, at 1196.
As noted above, the burden of proof shifts when a
defendant raises qualified immunity on a summary judgment
motion. The plaintiff must show that the facts indicate
that defendants violated his constitutional rights, and
that the right was clearly established. If plaintiff
establishes both elements, then defendant bears the
traditional burden of demonstrating that no material issues
of fact remain that would defeat the claim of qualified
immunity. “Specifically, the public official must show that
no material issues of fact remain as to whether his or her
actions were `objectively reasonable in light of the law and
the information he or she possessed at the time.'” Hinton
v. City of Elwood, supra, at 779.
While plaintiff bears a heavy burden in resisting a
qualified immunity defense, qualified immunity is not
equivalent to absolute immunity. In excessive force cases,
summary judgment is not appropriate when there are facts in
dispute that are material to a determination of
reasonableness. “[A] contested issue of fact that is
material to the qualified immunity analysis gives rise to a
jury Page 30 question.” Maestas v. Lujan, 351 F.3d 1001,
1008 (10th Cir. 2003). While stating that the question
“[w]hether officers acted reasonably . . . is a legal
determination in the absence of disputed material facts
[emphasis in original],” the Tenth Circuit noted
nevertheless that “the reasonableness standard is
inevitably fact dependent” and that if the facts are in
dispute, the dispute cannot be resolved by the Court at the
summary judgment stage; rather, it must be resolved by a
jury. Medina v. Cram, supra, at 1131.
[T]his court will not approve summary judgment in
excessive force cases — based on qualified immunity
or otherwise — if the moving party has not quieted
all disputed issues of material fact. . . . [S]ummary
judgment motions may not be granted on any excessive force
claims under — 1983 for which any genuine issue of
material fact remains — regardless of whether the
potential grant would arise from qualified immunity or
from a showing that the officer merely had not committed a
constitutional violation. . . . [M]aterial factual
disputes involving the immediate connection of an
officer’s use of force in response to a suspect’s threat
of force prevent a court from granting summary judgment. .
. . Where a disputed issue of material fact remains, that
ends the matter for summary judgment. [Emphasis in
original; internal punctuation omitted].
Olsen v. Layton Hills Mall, supra, at 1314-15.
In the present case, there are factual disputes as to
exactly what occurred at the point that Hita was removed
from the doorway, brought to the ground and placed in
handcuffs, and as to what happened after he was subdued.
These disputes are material to the determination of
reasonableness. The Court therefore finds that summary
judgment is not appropriate on Hita’s claim of excessive
force.
As noted above, Hita’s erratic and resistant behavior on
the night of the arrest, together with the information the
officers obtained from neighbors who witnessed the argument
between Hita and his wife, constituted sufficient grounds
for the entry and arrest. It is not clear, however, exactly
what Page 31 occurred after Hita’s father appeared on the
scene and Hita finally opened his front door.
Hita claims that Richbourg was hiding in the bushes near
the door, and as soon as he opened it, Richbourg came
forward, stepped inside his apartment, grabbed him by the
arm and pulled him outside. Defendants do not dispute that
Richbourg entered at least the threshold of the apartment
and that he and Hita emerged together out to the patio
area.
Hita portrays the arrest procedure in much more violent
terms than do the Defendants. He says that Richbourg came
into his house and pulled him out, tripped and “slammed”
him face down onto the concrete patio. He alleges that
several other officers, including defendant Stansell
“joined in” and, while he was still on the ground,
“continued to batter me.” He says that one officer dug his
thumb into the fleshy part of Hita’s left hand and pulled
his hands up behind his back to handcuff him. He says he
sustained abrasions on his knees, elbows and forehead,
scratches and bruises on his arms and a fingernail wound
and swelling on his left hand between the thumb and index
finger. [Affidavit of Eloy Hita, attachment to Doc. 30, at
3].
In his deposition, Hita states that the officers made no
effort to handcuff him while he was standing up; rather,
they “threw” him to the floor before attempting to handcuff
him, and wrenched his arm behind him in spite of his pleas
to stop. He states that he wasn’t fighting with the
officers but was just telling them his arm was hurting.
[Doc. 22, Ex. 3].
Defendants’ version of the incident is somewhat different.
In his Supplemental Report of the incident, Richbourg
states that Hita demanded that the police officers call his
father and refused to come out until his father got there.
Richbourg says further that he remained positioned at the
front door until Hita’s father arrived and, when Hita
unlocked the security door, Richbourg immediately opened
the door and entered the threshold to prevent Hita’s
barricading himself inside again. He told Page 32 Hita he
was under arrest and ordered him to put his hands behind
his back, but instead Hita began backing up. As he was
attempting to handcuff Hita, Hita “tightened his muscles,”
refusing to put his hands behind his back. At this point,
Richbourg says, he pulled Hita outside and the struggle
continued. [Doc. 22, Ex. 7]
Richbourg says that he told Hita several times to stop
resisting. Richbourg says he used an “arm bar leverage
technique” to get Hita on the ground. Stansell and another
officer began to assist Richbourg, who says that Hita’s
father was pleading with Hita not to resist. At this point,
Hita’s father told the officer that Hita recently had a
shoulder injury. Once Hita was on the ground, the officers
secured his right wrist in a handcuff; however, Hita
continued to resist by keeping his left arm underneath his
body. Eventually, Richbourg says, the officers were able to
secure both of Hita’s hands behind his back in handcuffs.
[Id.].
Stansell’s Incident Report confirms Richbourg’s account.
He apparently did not see what happened inside the
apartment, but he says that Richbourg told him that when he
stepped into the apartment, Hita stepped back and attempted
to shut the door again, that Richbourg grabbed Hita’s arm,
and that Hita “bowed up” and would not allow Richbourg to
handcuff him. Once the two were outside, Stansell observed
Richbourg struggling to detain Hita, and he went to assist.
He states that he gave Hita verbal commands to get down on
the ground but Hita continued to resist. He does not
describe the maneuver which finally brought Hita to the
ground but states that once Hita was down, he kept his left
arm underneath his body and did not comply with commands to
get his hands behind his back. Hita was lying on his
stomach, and Stansell says he feared Hita might have a
weapon in his front waist band, so he grabbed Hita’s thumb
and forced his arm from underneath him. This allowed the
officers to get both of Hita’s hands behind his back so
that they could apply the handcuffs. [Doc. Page 33 22,
Ex. 1].
Officer T. Marshall, who is not named as a Defendant in
this case, was also present at the time of Hita’s arrest
and submitted a Supplemental Report of the incident.
Marshall says that he observed the door open and Hita stand
in the doorway. He saw Richbourg enter the doorway, say
something to Hita and place his hand on one of Hita’s arms
as if trying to handcuff Hita. He says that Hita pulled
away, and then a struggle began between Richbourg and Hita.
Marshall then rushed to the front door to assist, trailing
behind Stansell. Marshall says that Richbourg struggled
with Hita until they were both on the ground. The officers
were trying to get Hita’s hands behind his back as he was
lying stomach-down on the ground. Marshall states that, as
Stansell was assisting Richbourg, he grabbed Hita’s left arm
and pulled it behind his back so that Richbourg could
secure Hita in handcuffs. [Doc. 22, Ex. 9].
Johnson wore a belt tape during the encounter with Hita
and during the arrest. The recording of the actual moment
of the arrest is garbled, with much scuffling and shouting
apparent on the tape. At one point, Johnson asks Hita’s
father to tell Hita to quit fighting with the officers, and
tells the father that Hita needs to cooperate with the
officers, that Hita is making things worse. Hita’s father
can be heard saying, “Mijo [my son], go in the house now,”
and telling Hita to “settle down,” “don’t fight them,” and
“quit crying.” Later on the tape, Hita, Sr. asks the
officers, “Why do you have to treat him like that?” and
even later says to the police, “I’m just very disappointed
in the way you treated him, that’s all. . . . I came in and
he came out and you threw him on the ground and break his
arm, that’s just not right.” [Doc. 22, Ex. 8].
Because Hita was complaining of pain in his shoulder,
Stansell drove him to the hospital after the arrest.
Medical records indicate that Hita sustained a sprain or
strain to his arm. He was directed Page 34 to apply ice
to the area for three days and to take Ibuprofen for pain,
and to return for a recheck in one week. [Doc. 22, Ex. 10].
There is no documentation of any other medical treatment.
None of the officers explicitly denies Hita’s allegation
that the police continued to batter and beat him even after
he was subdued. There is certainly nothing in the incident
reports to this effect, although there are many statements
from the officers that the struggle with Hita continued
even after he was down on the ground. The officers state
that Hita refused to comply with their requests to put his
hand behind him, and that it would be justifiable for an
officer to use reasonable force to pull an arrestee’s arm
out from under his body if the officer believed the
arrestee might have a weapon concealed in his clothing.
The issue remains, however, whether the amount of force
used was reasonably necessary to secure the scene. A jury
could find that it was not reasonable for the officers to
pull Hita outside and throw him forcefully to the ground,
on his face, if he weren’t resisting arrest. So, too, no
reasonable jury would find that it was appropriate for
police to beat a subdued subject. This is what Hita alleges
occurred, and it creates a factual dispute which this Court
cannot resolve on summary judgment.
The jury must determine whether Hita resisted reasonable
efforts to handcuff him while he was still standing, and
whether the officers acted reasonably in taking Hita to the
ground and in the manner in which they performed this
action, and whether, as Hita contends, they continued to
beat him after he was subdued and posed no further threat
to them or to his wife or other persons in the vicinity.
Summary judgment cannot be granted in this circumstance. As
one commentator noted:
[F]actual disputes may preclude resolution of even the
merits question. It may often be the case that the
plaintiff and defendant have substantially different
accounts of what happened. If that is the case, that
factual dispute is just as likely to preclude the court
from determining whether the plaintiff has properly
asserted the violation Page 35 of a constitutional right
as it is to preclude the resolution of whether that right
was clearly established. . . . [And] the second part of
the immunity inquiry — whether the defendant
violated a constitutional right that was clearly
established at the time of [his conduct] . . . may be
impossible to answer if there are substantially disputed
facts. . . . [In determining the “clearly established
law” question], the court cannot assess whether the
precedent gave fair warning to the defendant until it
determines whose version of the facts to believe.
Alan K. Chen, The Facts About Qualified Immunity, 55 Emory
L.J. 229, 258-59, 261 (2006).
The Court denies summary judgment on the claim of
excessive force by Stansell and Richbourg.
In addition, the Court will deny summary judgment as to
Hita’s claim of battery under state law against these two
Defendants. Battery by a law enforcement officer acting
with the scope of his duty is among the actions for which
sovereign immunity is waived under the New Mexico Tort
Claims Act. N.M.S.A. (1978) § 41-4-12. In New
Mexico, “[t]he elements of civil and criminal assault and
battery are essentially identical.” State v. Ortega, 113
N.M. 437, 440, 827 P.2d 152, 155 (Ct.App. 1992). The crime
of battery is defined as “the unlawful, intentional
touching or application of force to the person of another,
when done in a rude, insolent or angry manner.” N.M.S.A.
(1978) § 30-3-4. Thus, if the officers’ touching of
Hita was “unlawful,” then civil liability will attach. As
discussed above, there are factual disputes as to whether,
inter alia, the officers continued to beat Hita after he
was subdued, and these factual disputes preclude a finding,
as a matter of law, that the touching was lawful.
However, this ruling does not preserve Hita’s claim of
municipal liability, because he did not allege such
liability in the complaint with respect to excessive force.
Hita’s Second Cause of Action is directed solely toward
municipal liability for: (1) “creating an environment
wherein police officers Page 36 are encouraged routinely
to arrest citizens for `obstruction,’ when in fact no
criminal act has taken place”; and (2) “inadequate
training, supervision and discipline of its police
officers, and police officers supervisors, with respect to
the limits of their authority and the Constitutional
prohibitions against warrantless entry into the homes of
citizens, warrantless arrest, and the arrest of citizens
without probable cause.” [Complaint, § 48]. Hita
does not claim that any inadequate training or supervision
occurred with respect to police brutality, nor does he not
allege any municipal policy which encouraged officers to
apply excessive force. Thus, the fact that summary judgment
is denied with respect to the excessive force claims
against the two individual officers does not preserve
Hita’s claim of municipal or supervisory liability, as that
claim is worded in the Complaint.
Fourth Cause of Action: Violation of Due Process Based on
False Statements and Prosecution Without Probable Cause
In this claim, Hita alleges that Defendant Stansell
initiated and pursued the criminal prosecution against him
without probable cause, and knowingly made false statements
of fact in the affidavit he executed in connection with the
Criminal Complaint “in an attempt to embellish the facts in
favor of a prosecution.” [Complaint, Doc. 1 at §
54]. He also alleges that Stansell gave false testimony at
trial consistent with the false statements in the
affidavit, in aid of securing a conviction for crimes Hita
did not commit. Hita asserts that these actions violated his
due process rights.
Stansell denies that he made any false statements and
contends that there was probable cause to support the
criminal prosecution.
The Court has already determined that probable cause
existed for the arrest. The Court now finds, as a matter of
law, that the conduct of the prosecution was supported by
probable cause. The officers were justified in their belief
that there was probable cause to charge Hita with battery
on his Page 37 wife. As noted above, the crime of battery
on a household member is defined in part as “the unlawful,
intentional touching or application of force to the person
of a household member, when done in a rude, insolent or
angry manner.” The statements of the neighbor as to the
argument occurring outside and the apparent threats made by
Hita toward his wife, coupled with her subdued and
apparently cowed manner at the door and the fact that Hita
would not allow her to speak to the officers on her own, as
well as her statement that he grabbed her arm and the
officers’ perception that she had injuries on her arm and
hand, taken together provide a strong basis to believe that
Hita violated N.M.S.A. (1978) § 30-3-15.
Hita, however, points to the fact that the neighbor who
reported the incident told the police that she witnessed
the argument between the couple outside in the parking lot,
and then saw the male go back into the house first,
followed shortly thereafter by the female. Hita argues that
this information should have put Stansell on notice that
the female had not been physically forced back into the
house. He further points out that no neighbor reported
witnessing any assault or battery.
However, it was not the neighbor’s statements alone that
led Stansell to conclude there was probable cause to
believe a battery had taken place. Rather, the totality of
the circumstances including, crucially, Hita’s obstinately
resistant behavior in the face of police requests that he
allow them to see and speak to his wife, and her subdued
demeanor and apparent inability to open the door and leave
the house of her own free will, gave them ample cause to
believe she was the victim of domestic abuse. The marks on
her arm and hand, and her statement that Hita grabbed her,
were confirming evidence of the battery.
Hita contends that Johnson’s statement that a neighbor told
him the male shouted to the female that she could not leave
with his baby, “were a complete fabrication.” [Doc. 30, at
9]. Page 38 However, arguments of counsel do not suffice
to raise an issue of fact. Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 671-72 (10th Cir. 1998). Hita has not
supplied an affidavit of the neighbor, or any other
evidence, to counter Defendants’ statement that the
information they had at the scene included reports of
possible threats by Hita against his wife.
The Court finds that, as a matter of law, a reasonable
officer considering the totality of the circumstances would
have believed there was probable cause to charge Hita with
battery upon a household member.
The evidence is also sufficient to establish probable
cause that Hita violated N.M.S.A. (1978) § 30-22-1,
which section is titled, “Resisting, evading or obstructing
an officer.” The Criminal Complaint under which Hita was
charged lists two separate offenses under this statute,
“Obstructing a Police Officer” and “Resisting/Evading a
Police Officer.” [Doc. 22, Ex. 12]. Although the record
that has been supplied to this Court of the trial
proceedings in the state Magistrate Court and that of the
appeal in the state District Court is somewhat unclear, it
appears that both parties agree that the Magistrate Court
jury found Hita guilty of “Obstructing a Police Officer,”
and not guilty of “Resisting/Evading a Police Officer.”
[See, Doc. 16, Exs. 2,3]. The District Court later reversed
Hita’s conviction on “obstructing,” on ground he had been
acquitted of “resisting/evading”; however, as noted above,
the fact that a charge is dismissed or a conviction
reversed on appeal is not determinative on the issue of
whether a reasonable law enforcement officer would have
thought there was probable cause to bring the charges in
the first place. Summers v. Utah, supra.
Hita contends that Stansell made false statements in the
affidavit, and later testified falsely at trial. He says
that Stansell’s statement that Hita used profanity toward
him and the other officers was a “total fabrication.” [Doc.
30, at 10]. The belt tape does not cover the entire period
of the Page 39 encounter and is inaudible in portions, but
the tape does not establish any use of profanity by Hita.
The Court finds, however, that the question of profanity is
not material to the issue of whether the officers had
probable cause to charge Hita with “resisting, evading or
obstructing an officer.”
The totality of the circumstances which the officers
confronted at Hita’s apartment, even if no profanity was
used, would have led a reasonable officer to believe there
was probable cause to charge Hita with a violation of
§ 30-22-1. It is undisputed that Hita refused to
permit the officers to speak with his wife, outside of his
presence. It is undisputed that, for a period of one to two
hours, he refused all requests and commands that he come
outside and talk to police officers, who informed him
they’d had a report of an argument outside and were
concerned for the welfare of a woman inside the apartment.
Hita could have defused the situation at any point during
the standoff by simply coming outside, answering the
officers’ questions, and allowing them to see and speak to
Suzanne in a way which would have enabled the officers to
ensure that she was safe and unhurt. Although he claims he
did not yell at the officers or use profanity, the belt
tape reveals an agitated, angry and destructive Hita
refusing to comply with the reasonable demands of the
police officers.
The Court finds, as a matter of law, that Hita’s behavior
would have led a reasonable officer to believe there was
probable cause to charge Hita with the crime of “resisting,
evading or obstructing an officer,” as defined in N.M.S.A.
(1978) § 30-22-1. The Court further finds no genuine
issue of fact with respect to the claim of false statements
by Stansell, on matters that are material to resolution of
this Cause of Action. Summary judgment is therefore
appropriate as to the due process claim.
In his municipal liability cause of action, Hita alleges
that the City “creat[ed] an environment wherein police
officers are encouraged routinely to arrest citizens for
`obstruction,’ when in fact no Page 40 criminal act has
taken place”; and further alleges that the City failed to
adequately train, supervise and discipline its officers
“with respect to the limits of their authority and the
Constitutional prohibitions against . . . the arrest of
citizens without probable cause.” [Complaint, Doc. 1, at
§ 48]. He alleges in his First Cause of Action that
Defendant Johnson failed to stop his subordinates from
violating Hita’s constitutional rights, when he knew or
should have known that the subordinates “were acting
without a warrant, without probable cause or even
reasonable suspicion, and that their conduct violated the
Constitutional rights of Eloy Hita.” [Complaint, Doc. 1, at
§ 45].
To the extent these allegations of municipal and
supervisory liability can be seen to cover the claim that
Stansell violated Hita’s due process rights by securing a
criminal complaint without probable cause, they too are
subject to summary judgment based on the finding that
probable cause existed, as a matter of law. Hinton v. City
of Elmwood, supra, at 782 (without an underlying
constitutional violation, there can be no municipal
liability).
Fifth Cause of Action: Malicious Abuse of Process under
State Law
Hita alleges in his Fifth Cause of Action that Defendant
Stansell initiated criminal proceedings against him without
probable cause, with a motive to punish Hita for exercising
his constitutional rights and in order to cover up
wrongdoing by the police officers, and that these actions
constitute “malicious abuse of process” as defined by state
law.
Under New Mexico law, the tort of malicious abuse of
process is designed to offer redress to a plaintiff who has
been made the subject of legal process improperly, where
the action was wrongfully brought by a defendant merely for
the purpose of vexing or injuring the plaintiff, and
resulting in damage to the plaintiff’s personal rights.
DeVaney v. Thiftway Mktg. Corp., 124 N.M. 512, 517, 953 P.
2d 277, 282 (1997). Malicious prosecution and abuse of
process are torts for which Page 41 immunity has been
waived under N.M.S.A. (1978) § 41-4-12, when
committed by law enforcement officers while acting within
the scope of their duties.[fn6]
The cause of action for malicious abuse of process under
New Mexico law consists of the following elements: (1) the
initiation of judicial proceedings against the plaintiff by
the defendant; (2) “an act by the defendant in the use of
process other than such as would be proper in the regular
prosecution of the claim”; (3) a primary motive by the
defendant in misusing the process to accomplish an
illegitimate end; and (4) damages. “In short, there must be
both a misuse of the power of the judiciary by a litigant
and a malicious motive.” DeVaney, supra, 124 N.M. at 518.
The tort of malicious abuse of process is not favored in
the law and is construed narrowly. Id., at 519.
As discussed above, Defendants had probable cause to bring
criminal charges against Hita for violations of two
criminal statutes. Aside from his allegation of lack of
probable cause, Hita does not allege any other “act by the
defendant in the use of process other than such as would be
proper,” and the record does not reveal any. There is not
material issue of fact as to false statements. Thus,
plaintiff cannot establish this element of the cause of
action, and “[i]n pursuing a tort claim of malicious abuse
of process, a plaintiff’s failure to prove any one of its
elements would be fatal to his or her claim.” Weststar
Mortgage Corp. v. Jackson, 133 N.M. 114, 125, 61 P.3d 823,
834 (2002).
Summary judgment is appropriate as to this Cause of Action.
Sixth Cause of Action: False Arrest/Imprisonment under
State Law
Hita asserts a state law claim for false arrest and false
imprisonment against Defendants Stansell, Richbourg and
Johnson. False arrest and false imprisonment are torts for
which immunity Page 42 is waived under N.M.S.A. (1978)
§ 41-4-12, if committed by law enforcement officers
while acting within the scope of their duties.
New Mexico law is sparse with regard to civil liability
for false arrest and false imprisonment. However, there can
obviously be no “false arrest” if there was probable cause
to make the arrest. The Court having found as a matter of
law that there was probable cause for Hita’s arrest, both
with respect to battery upon a household member and as to
resisting, evading or obstructing an officer, summary
judgment is granted with respect to the claim of false
arrest.
Under New Mexico law, the tort of false imprisonment
requires that there be evidence or a reasonable inference
of unlawful interference with the personal liberty or
freedom of locomotion of another. Martinez v. Sears,
Roebuck & Co., 81 N.M. 371, 373, 467 P.2d 37, 39 (Ct.App.
1970). “The act of confining or restraining another against
his will constitutes false imprisonment when done with a
knowledge of an absence of authority.” State v. Muise, 103
N.M. 382, 388, 707 P.2d 1192, 1198 (Ct.App. 1985). And “a
common-law defense to a civil wrongful arrest or a false
imprisonment suit . . . requires only that the officer
prove that he or she acted in good faith and with probable
cause and therefore lawfully under the circumstances.”
State v. Johnson, 122 N.M. 696, 701-02, 930 P.2d 1148,
1153-54 (1996).
There is no allegation that the Defendant police officers
were without authority to arrest and detain Hita, and the
Court has already found that the officers reasonably
believed they had probable cause to detain Hita, both in
light of information indicating he had committed criminal
offenses, and also in order to complete their task of
ensuring that Suzanne Hita was safe and unharmed. Probable
cause supplies the defense to these state law claims.
Summary judgment is therefore appropriate as to Plaintiff’s
Sixth Cause of Action. Page 43
Seventh Cause of Action: Battery under State Law
As discussed above under the Fourth Cause of Action, the
Court finds that factual disputes preclude summary judgment
on the state law claim against Stansell and Richbourg for
battery.
In addition, Hita asserts a claim that the City is liable
under the doctrine of respondeat superior for any torts
established against the individual officers. [Complaint,
Doc. 1, at § 9]. This claims also survives summary
judgment, with respect to the allegation of battery.
Eighth Cause of Action: Breaking, Entering and Trespass
under State Law
In the final claim of his Complaint, Hita alleges that
Defendants Stansell and Richbourg invaded his privacy and
committed the torts of trespass and breaking and entering
when they entered the patio area of his apartment and
damaged the fence, and when they broke the handle to his
front door. [Complaint, Doc. 1, at § 66].
Property damage resulting from “violation of property
rights” is one of the acts for which immunity is waived
when committed by law enforcement officers while acting
within the scope of their duties. N.M.S.A. (1978) §
41-4-12.
Defendants’ position is that they had a right to be on
Hita’s property because they were dispatched to the scene
of a domestic dispute and had a duty to investigate a
report of possible criminal activity. Further, they assert
they had a right to remain there, because upon their
arrival Hita unreasonably refused to speak to them and
refused to allow them to speak to his wife outside his
presence. The Court agrees. The officers’ entry was not
unlawful, as discussed above in the section on unreasonable
search and seizure. As the New Mexico Supreme Court noted
in Romero v. Sanchez, 119 N.M. 690, 693, 895 P.2d 212, 215
(1995):
The trial court properly dismissed the trespass, assault,
false Page 44 imprisonment, unlawful detention, and
burglary and larceny claims because Sanchez did not
violate the law. The facts demonstrate that Officer
Sanchez had a right to be on Romero’s property. As a
police officer, Sanchez had a duty to be a “conservator[]
of the peace.” NMSA 1978, § 29-2-18(A) (Repl.Pamp.
1994). Officer Sanchez was dispatched to the scene of a
private dispute . . . Based upon [the facts confronting
him at the scene], Officer Sanchez had a duty to
investigate further, see NMSA 1978, § 29-1-1
(Repl.Pamp. 1994) (stating that every peace officer has a
duty to investigate all criminal violations), as well as a
continuing duty to preserve the peace. Hence summary
judgment as to Romero’s criminal trespass claim was
appropriate as a matter of law.
Summary judgment will be granted with respect to Hita’s
Eighth Cause of Action.
Order
IT IS THEREFORE ORDERED that Defendants’ Motion for
Summary Judgment is denied in part, with respect to
Plaintiff’s Fourth Cause of Action (excessive force in
violation of his federal constitutional rights) and
Plaintiff’s Seventh Cause of Action (battery under state
law), as well as the claim for respondeat superior
liability against the City of Clovis as the employer of
Stansell and Richbourg with respect to the state law claim
for battery.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary
Judgment is granted in part with respect to all other
claims, which are hereby dismissed from this action,
including all claims against the City of Clovis based on
municipal liability under Section 1983.
IT IS FURTHER ORDERED that, all claims against him having
been resolved by this Order, Defendant Richard Johnson is
hereby dismissed from the action.
[fn1] Defendant Richbourg had not yet been served at the
time.
[fn2] In his First Cause of Action, as well as in other
Causes of Action, Hita asserts claims under both federal
and state constitutions. In New Mexico, if the right
asserted is protected under the federal constitution, then
a claim asserted under an analogous provision of the state
constitution need not be reached. State v. Gomez, 122 N.M.
777, 783-84, 932 P.2d 1, 7-8 (1997). Hita raises no
argument that the New Mexico constitutional provision on
which he relies in his Complaint provides any broader
protection than the analogous federal provisions;
therefore, the Court’s analysis is directed solely at
Hita’s federal constitutional claim. Id., 122 N.M. at 784.
Thus, the Court’s ruling on the federal constitutional
claims is dispositive of Hita’s state constitutional claims
as well.
[fn3] An incident occurring in Albuquerque, New Mexico
within the recent past shows the harm that can befall a
domestic violence victim when a police investigation does
not occur.
Media reports disclose a 911 call by a neighbor who
reported a heated argument between a pregnant woman and her
boyfriend. The police did not respond, because calls from
one other than the victim were not afforded a “priority”
classification. The neighbor made a second 911 call when
the tenor of the argument increased, again expressing
concern over the increasingly angry altercation and asking
for police assistance. Again, the police did not respond.
The neighbor placed a third call, pleading for police
assistance due to the fight. There was no response until
the neighbor reported hearing gun shots. By the time the
police arrived, both the man and the pregnant woman were
dead of an apparent murder/suicide.
http://www.abqjournal.com/new/met (July 12, 2006).
[fn4] As discussed below, Hita’s complaint includes no
allegation of municipal liability for a policy, or a
failure to train or supervise, with respect to excessive
force.
[fn5] As discussed above, the Court does not consider
Hita’s claims under the state constitution.
[fn6] These two torts were combined into the unitary cause
of action for “malicious abuse of process” in the 1997
DeVaney decision. Page 1