Bustillos v. City of Carlsbad

ALBERT JEROME BUSTILLOS, Plaintiff, v. CITY OF CARLSBAD, NEW MEXICO and SERGEANT DANIEL VASQUEZ OF CARLSBAD POLICE DEPARTMENT, Defendants.

Civ. No. 20-1336 JB/GJF

United States District Court, D. New Mexico

August 11, 2021

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

THE HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE

THIS MATTER is before the Court on Defendants' Motion to Dismiss, or Alternatively, Motion for Summary Judgment on Plaintiff's Complaint and for Qualified Immunity [ECF 11] (“Motion”). The Motion is fully briefed. See ECFs 17 (Response), 18 (Reply). For the reasons set forth below the Court concludes that Plaintiff has not shown that a reasonable jury could find that Defendant Vasquez or Defendant City of Carlsbad violated Plaintiff's constitutional rights. Consequently, the Court recommends^[1] GRANTING Defendants' Motion and DISMISSING WITH PREJUDICE the above-captioned cause.

I. BACKGROUND^[2]

A. Handcuffing of Plaintiff

On April 10, 2019, officers from the Carlsbad Police Department responded to calls that a woman with “altered mental status” was running in and out of traffic. ECF 11-1 (Incident Report). The officers found the woman at Jefferson Montessori Academy in Carlsbad, New Mexico. See id.; Stinson Body Worn Camera (BWC); Vasquez BWC. Officer Devon Stinson was the first to arrive and to attempt talking with the woman. Stinson BWC 0:00-1:29. Defendant Vasquez and pro se Plaintiff Albert Bustillos-also known as “Stray Dog the Exposer”^[3]-arrived a few moments later and began walking towards the woman while Officer Stinson was attempting to calm her down. Stinson BWC 1:20-1:55; Vasquez 0:00-1:00. As Plaintiff and Defendant Vasquez were walking towards the woman, Officer Stinson extended his left arm in their general direction, with his palm out, and said “you're scaring her off, can you guys stand back please.” Stinson BWC 1:25-1:30; Vasquez BWC 0:15-1:20. In addition, while walking next to Plaintiff and toward the scene, Officer Vasquez then asked Plaintiff twice to “stay over there.” Vasquez BWC 0:1530.

The officers attempted to calm down the woman-who was experiencing some sort of severe “altered mental status”-as they waited for medical help to arrive. See, generally, Stinson BWC. After several minutes, the woman became more agitated and started running from the officers while yelling “pedophile.” See id. at 9:00-9:26. Officer Stinson chased after her, grabbed her by the left arm, assisted her in sitting down, and repeatedly told her “it's okay.” Id. at 9:209:30. The woman, however, remained agitated, pointed towards Plaintiff, and screamed “there's a guy right there!” Id. at 9:24-9:30. She then repeatedly yelled “fuck you, bitch, ” among other things, in Plaintiff's direction and, as the officers handcuff her, said “there's people scaring me ... it's wrong ... it's scaring me ... I already got beat up.” Id. at 9:30-10:20.

After the woman first screamed “there's a guy right there!, ” Defendant Vasquez began walking toward Plaintiff and repeatedly ordered him to leave the scene:

Okay you're scaring her. You need to go now. You're going to make her worse- you need to go. I'm not going to ask you again-you need to go. You're going to make her mental state worse. You're going to make her status worse, now go, or you can go to jail-you decide.

Vasquez BWC 8:15-8:36. Plaintiff refused to leave, however, and instead told Defendant Vasquez that he was “far away” and that the woman's mental status was “not [Plaintiff's] problem” because he was “on public property.” Id. at 8:36-45. Defendant Vasquez repeated his commands for Plaintiff to leave:

I'm going to ask you one more time. You're interfering with this investigation. Now you need to go. One more time-do you want to go to jail? . . . Go. You are engaging in her mental status. She just called you a pedophile. Go. I don't need her to get worse. Have some respect for her mental status .... Go stand at that gate so you don't engage her mental status anymore.

Id. at 8:45-9:27. Plaintiff continued to disregard these repeated orders and continued to argue with Defendant Vasquez. Id. at 9:27-38; see also id. (Plaintiff commenting, inter alia, that some people don't like being recorded-to which Defendant Vasquez responded, “I don't care about you recording, but you're not going to engage her mental status”).

Defendant Vasquez then ordered Plaintiff four times (within approximately six seconds) to “give me your I.D.” Id. at 9:38-9:44. Plaintiff, however, remained argumentative and refused to identify himself-unless Defendant Vasquez first provided him with a “reasonable articulable suspicion” of a crime. Id. at 9:38-47. Defendant Vasquez then placed Plaintiff in handcuffs. Id. at 9:48-10:02. While Plaintiff was in handcuffs, Defendant Vasquez attempted to explain to Plaintiff-despite Plaintiff's continued arguing and repeated interruptions-why Plaintiff was handcuffed. Id. at 10:00-15:15; see also id. (Defendant Vasquez discussing Plaintiff's (1) interference with a police investigation by engaging with the woman's mental status, (2) refusal to comply with Defendant Vasquez's order to leave the scene, and (3) refusal to provide his identity). After Defendant Vasquez confirmed that Plaintiff would indeed go to jail if he continued to refuse to provide his identity, Plaintiff provided his identity and Defendant Vasquez removed the handcuffs (which had been on for just under eight minutes). Id. at 15:15-17:35.^[4]

B. Current Dispute

In October 2020, Plaintiff filed the instant lawsuit in New Mexico state court, alleging three causes of action. ECF 1-1 at 1-5. In the First Cause of Action (Deprivation of Civil Rights, 42 U.S.C. § 1983), Plaintiff alleges that-by threatening arrest, handcuffing Plaintiff, and removing Plaintiff's phone from his hand while handcuffing him-Defendants violated Plaintiff's First, Fourth, and Fourteenth Amendment rights. Id. at 3. The Second Cause of Action (False Arrest / False Imprisonment / Unlawful Detention) alleges that Plaintiff was “unlawfully detained” and that Defendant Vasquez therefore “acted maliciously, in bad faith, or in a wanton or reckless manner.” Id. at 4. Plaintiff's Third Cause of Action (Violation of the New Mexico Tort Claims Act) alleges that (1) Defendant Vasquez “committed the torts of false arrest and malicious prosecution and deprived Bustillos of his rights, privileges or immunities secured by the constitution and laws of the United States and New Mexico” and (2) Defendant City of Carlsbad is “vicariously liable.” Id.

Defendants removed this case to this Court and thereafter filed the instant Motion, requesting that the Court dismiss Plaintiff's claims. ECF 1; Mot. 1, 14-15. Specifically, Defendants request that the Court (1) grant Defendant Vasquez summary judgment based on qualified immunity on Plaintiff's federal constitutional claims; (2) grant Defendant City of Carlsbad summary judgment on Plaintiff's federal constitutional claims, due to a lack of an underlying constitutional violation by Defendant Vasquez; and (3) dismiss Plaintiff's NMTCA claims due to the Court being “devoid of jurisdiction” over such claims. Id. at 1, 6-15.

II. ISSUES

As to Defendant Vasquez, the primary issue is whether Plaintiff has shown that (1) a reasonable jury could find that Defendant Vasquez violated Plaintiff's constitutional right(s) under the First, Fourth, or Fourteenth Amendments and (2) that such right(s) were clearly established on April 20, 2019. See Mot. 6-12; ECF 1-1 at 3-4; Gutierrez v. Cobos, 841 F.3d 895, 900 (10th Cir. 2016).

As to Defendant City of Carlsbad, the primary issue is whether Plaintiff has shown that a municipal policy or custom caused an underlying constitutional violation by Defendant Vasquez. See Mot. 12-13; Jensen v. West Jordan City, 968 F.3d 1187, 1204 (10th Cir. 2020); Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006).

Finally, regarding Plaintiff's state law claims, the primary issue is whether-if the Court dismisses all of the federal claims-the Court should decline to exercise supplemental jurisdiction over Plaintiff's NMTCA claims. See Mot. 6-15; 28 U.S.C. § 1367(c); Strain v. Regalado, 977 F.3d 984, 997 (10th Cir. 2020).

A. Defendants' Primary Arguments

Defendants argue that Defendant Vasquez is entitled to qualified immunity from Plaintiff's First Amendment claim because (1) it is unclear whether “a First Amendment right to record law enforcement officers in public places” even exists; and (2) even if such a right exists, “it is not clearly established that a First Amendment retaliatory arrest claim may sound where there is probable cause.” Mot. 10-12 (quoting Fenn v. City of Truth or Consequences, No. 2:18-cv-00634 WJ-GBW, 2019 WL 943518, at *6 (D.N.M. Feb. 26, 2019), aff'd 983 F.3d 1143 (10th Cir. 2020)) (citing Mocek v. City of Albuquerque, 813 F.3d 912, 930-31 (10th Cir. 2015)); Reply 4.

In addition, Defendants argue that Defendant Vasquez is entitled to qualified immunity from Plaintiff's Fourth Amendment claims because (1) Defendant Vasquez had at least a reasonable suspicion that Plaintiff had committed the crime of “resisting [a] peace officer in the lawful discharge of his duties, ” N.M. Stat. Ann. § 30-22-1(D), by refusing to comply with Defendant Vasquez's repeated orders to leave the scene; (2) Defendant Vasquez was thus permitted to order Plaintiff to identify himself; and (3) Defendant Vasquez lawfully handcuffed Plaintiff when, in response to this order, Plaintiff committed the crime of “concealing [his] true name or identity, ” N.M. Stat. Ann. § 30-22-3. Mot. 6-10; Reply 2-4.

Defendants next contend that Defendant City of Carlsbad cannot be liable with respect to Plaintiff's federal constitutional claims because (1) Defendant...