Rael v. City of Albuquerque

1

FELIZ RAEL, on behalf of Juan James Cordova, estate of Juan James Cordova Plaintiff, v. CITY OF ALBUQUERQUE, ET AL., Defendants.

No. 1:23-cv-00875-KWR-JFR

United States District Court, D. New Mexico

March 18, 2024

MEMORANDUM OPINION AND ORDER

KEA W RIGGS, UNITED STATES DISTRICT JUDGE.

THIS MATTER comes before the Court upon a Motion for Summary Judgment based on Qualified Immunity, filed November 13 2023, by Defendants, City of Albuquerque and Bryce Willsey. Doc. 20. Having reviewed the parties' pleadings and the applicable law, the Court finds that Defendants' motion is well taken and therefore, is GRANTED IN PART.

BACKGROUND

Plaintiff's claims arise from actions taken by Defendant Willsey during an armed standoff between Mr. Juan James Cordova and Albuquerque Police that resulted in Mr. Cordova's death. Doc. 31 at 1. The decedent was fatally shot by Albuquerque Police, specifically Officer Willsey, on April 21, 2021. Id. Upon Mr. Cordova's death, Plaintiff, on behalf of the decedent and his estate, brought this action in state court. On September 25, 2023, Plaintiff filed a “First Amended Complaint for Civil Rights Violations Pursuant to 42 U.S.C. § 1983 and Violations of the New Mexico Tort Claims Act.” Doc. 1, Ex. B. In Plaintiff's Amended Complaint, Plaintiff alleges:

Count I: Excessive Force by Use of Deadly Force in Violation of the Fourth Amendment Pursuant to 42 U.S.C. § 1983 Against Defendant Willsey

Count II: State Tort Claims Against Defendant Willsey

Count III: Negligent Use of Equipment Against Defendant Willsey

Count IV: Negligent Hiring, Training, and Supervision Pursuant to The New Mexico Tort Claims Act Against the City.

See Id. at 15-18. Defendants removed this case asserting Plaintiff's claims are subject to the jurisdiction of this Court pursuant to 28 U.S.C. § 1331 1343(a), and 1983. Doc. 1 at 2.

FACTS^[1]

On April 21, 2021, at approximately 9:50 P.M., Susan Vasquez called 911 and reported that her boyfriend, Juan Cordova pulled a gun on her at her residence located at 10416 Coyote Canyon. Defendants' UMF 1, Doc. 20, Ex. A at 2:1-11 and 8:3-12. Vasquez claims Cordova told her that if she called the police, he was going to “fucking shoot himself.” Id. Vasquez told the 911 operator she was scared and going to her neighbor's house. Defendants' UMF 2, Doc. 20, Ex. A at 4:17-20. Vasquez called 911 because Mr. Cordova put a gun to his head, fired it, and based on his facial expression, Vasquez believed Cordova did not mean to pull the trigger. Plaintiff's UMFs A and B, Doc. 31, Ex. 1 at 31:7-9, 44:8-17. According to Plaintiff, Mr. Cordova did not threaten Vasquez with a gun before she called 911, and she was not afraid Cordova was going to hurt her. Plaintiff's UMFs C and D, Ex. 1 at 45:3-16, 46:21-25, 47:1-3.

APD Officers Kevin Beem, Bradley Agner, Bernadette Sanchez, Acting Sergeant David Griffin, and Acting Lieutenant Matthew Chavez were dispatched between 9:54 P.M. and 10:00 P.M. to the scene of the call made by Vasquez. Defendants' UMF 3, Ex. B at 21:54:11, 21:55:46, 22:00:08, 22:00:16. Due to the dangerous nature of the call, officers first met at a nearby park, Ventana West Park, to discuss tactics and a plan of approach. Defendants' UMF 4, Ex. E at 15:12-16:25, Ex. H at 13:10-13. Acting Lieutenant Chavez's plan was to set up an array of force with both lethal and non-lethal options. Defendants' UMF 5, Ex. B at 22:07:19, Ex. E at 16:19-17:6, Ex. H at 13:10-22. This plan also sought to establish communication with Vasquez because she had a visual of Cordova though her Ring camera video stream. Id. At the park, Officer Agner called Vasquez to gather information. Defendants' UMF 6, Ex. K at 00:30-01:50, Ex. E at 17:2-6. Vasquez stated that Cordova shot sunglasses on the top of his head, but that she did not feel threatened. Id. Vasquez told Officer Agner that after Cordova had fired the gun, Cordova said he could take them both out and that he was not going out alive. Defendants' UMF 7, Ex. K at 01:50-02:07. Vasquez explained to Officer Agner that once she told Cordova she was going to call the police, Cordova said he would engage them because he wanted to shoot himself or be shot. Defendants' UMF 8, Ex. K at 03:06-03:36. After speaking with Vasquez, Officer Agner relayed to officers on the scene that she did not feel threatened but had gone to a neighbor's house after the shot was fired. Defendants' UMF 9, Ex. E at 19:4-20:9. Officer Agner further conveyed that Cordova did make some potentially suicidal statements or actions. Id. Acting Lieutenant Chavez relayed over the radio that Cordova had made potentially suicidal statements, aggravated assault with a deadly weapon, and that officers would not engage in a pursuit if Cordova fled. Defendants' UMF 10, Ex. B at 22:12:16, Ex. C at 8:17-22. Lt. Chavez planned on setting up a perimeter and attempted to contact Cordova. Defendants' UMF 11, Ex. H at 20:18-19.

The CAD reflects that Officer Sanchez requested additional officers on the scene. Defendants' UMF 12, Ex. B at 22:19:13, 22:19:16, 22:20:09; Ex. C at 9:14-15. Officers Justin Rogillio, Kelsie Saul, and Cacy Shultz promptly dispatched. Id. At approximately 10:22 PM, Lt. Chavez asked dispatch to relay the following message over the radio:

Subj[ect] put gun to head threatening 43-1, clr [caller] did not feel threatened by gun. Was trying to stop subj[ect]. Subj[ect] did advise that he will engage w[ith] 34s and will not come out of this alive. Developing a plan to 21 the subj[ect].

Defendants' UMF 13, Ex. B at 22:22:40; Ex. C at 9:21-10:6. Officer Sanchez was dispatched to the scene at approximately 10:22 P.M. Defendants' UMF 14, Ex. B at 22:22:01 and 22:29:46; Ex. C at 12:2-7, Ex. J. Sgt. David Griffin requested that he stage at the intersection of Coyote Canyon and Sand Springs to block northbound traffic. Id. Sgt. Griffin told Officers Rogillio and Shultz to stage at Corn Mountain and Coyote Canyon. Defendants' UMF 15, Ex. B at 22:30:51, Ex. C at 12:9-15, Ex. J. Officer Rogillio voiced over the radio that he was going to the Coyote Canyon and Corn Mountain intersection, with Officer Sanchez stating he was at the intersection of Coyote Canyon and Sand Springs. Defendants' UMF 16, Ex. B at 22:31:26, 22:31:39; Ex. C at 13:12-13, 13:24-25; Ex. J. Officers Agner, Beem, Sanchez, Sgt. Griffin, and Lt. Chavez left the park and proceeded to Pony Hills Place NW. Defendants' UMF 17, Ex. C at 13:7-8, Ex. J, Ex. H at 17:3-10, Ex. M at 00:00-00:30, Ex. T at 00:00-00:40. Officer Sanchez relayed over the radio that Cordova's vehicle was a blue Chevrolet Silverado pickup truck. Defendants' UMF 18, Ex. T at 01:42-01:50.

Lt. Chavez relayed over the radio for any unit that was close to the 10416 Coyote Canyon residence to use “48” (caution) because Cordova exited the home and may have been walking around the area. Defendants' UMF 19, Ex. C at 14:16-20, Ex. H at 54:18-20, Ex. M at 03:1503:28. Officer Rogillio stated on the radio that he could only see the rear of Cordova's truck because the rest of it was hidden by the house. Defendants' UMF 20, Ex. B at 22:43:29, Ex. C at 17:1-3, Ex. S at 05:38-05:46. Lt. Chavez attempted to communicate with Cordova via his cell phone, but Cordova did not answer. Defendants' UMF 21, Ex. N at 00:00-02:35. Officer Rogillio, positioned at the intersection of Corn Mountain and Coyote Canyon, approached a vehicle travelling eastbound on Corn Mountain to ask which direction the driver was headed. Defendants' UMF 22, Ex. S at 08:10-08:25, Ex. U at 05:12-05:35. When the driver continued on his or her way on Corn Mountain, Officer Rogillio returned to where he was staged with Officer Shultz, when Officer Shultz yelled out, “pointing a gun.” Defendants' UMF 23, Ex. S at 08:34, Ex. U at 05:35-05:40.

Officer Shultz stated on the radio, “[s]ubject is outside pointing a gun at 34s [officers].” Defendants' UMF 24, Ex. U at 05:45-05:44, Ex. M. at 02:44-02:46. (Plaintiff does not dispute Defendants' asserted fact, however clarifies that the CAD report states, “pointing gun towards 34, gun is now at his side.” See Doc. 31 at 3; Ex. B at 5, 22:47:23). Shortly after Officer Shultz relayed “subject is outside pointing a gun at 34 (officers)”, Lt. Chavez drove his police car further down Pony Hills as Officers Sanchez, Beem, and Agner walked down the street with the car. Defendants' UMF 25, Ex. T at 11:24-11:56. As the officers walked on Pony Hills, Officer Sanchez stated to Officer Beem, “[h]old here; hold here because he can see us right through the branches right here Beem.” Defendants' UMF 26, Ex. T at 11:43-11:46. Lt. Chavez parked his police car in front of a home on the northwest corner of the intersection of Coyote Canyon and Pony Hills. Defendants' UMF 27, Ex. F at 188:3-25, Ex. J, Ex. W at 01:33-01:42. Once the police vehicle was parked, Officer Beem told Officer Sanchez that he did not see Mr. Cordova, so she pointed him out. Defendants' UMF 28, Ex. M at 11:54-11:58, Ex. T at 12:00-12:04. Due to the tree foliage in the yard of the house on the northwest corner of Coyote Canyon and Pony Hills, Officer Beem was unable to get a clear visual of Cordova in order to provide lethal coverage. Defendants' UMF 29, Ex. M at 11:58-12:01, Ex. G at 29:13-30:3, 54:21-55:11. After parking the police car, Officers Agner and Sanchez made announcements to Cordova, telling him they were APD officers and directed him to drop the weapon and everything in his hands. Defendants' UMF 30, Ex. L at 12:06-13:19, 13:49-14:01, 31:57-32:32, 37:08-37:39, 38:1639:29, 39:31-39:57; Ex. T at 15:09-15:26, 15:33-15:47, 16:04-16:33, 16:49-17:05, 18:19-18:50, 24:33-25:38. Officers Agner and Sanchez instructed Cordova to place his hands above his head and walk towards the officers with his hands free and clear. Id. ...