118 F.3d 693 (10th Cir. 1997), 96-2124, Latta v. Keryte

Docket Nº:96-2124.
Citation:118 F.3d 693
Party Name:Robert LATTA, Plaintiff--Appellant, v. Officer James A. KERYTE; Officer Larry Montoya; Sergeant Eugene Catanach; Lieutenant Gilbert Baca; Officer Jeff Mcdermott; John Denco, Jr., New Mexico State Police Chief; Anthony Ortega, Valencia County Sheriff; John Does, one or more, in their official and individual capacities; and Board of County Commission
Case Date:July 01, 1997
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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118 F.3d 693 (10th Cir. 1997)

Robert LATTA, Plaintiff--Appellant,

v.

Officer James A. KERYTE; Officer Larry Montoya; Sergeant

Eugene Catanach; Lieutenant Gilbert Baca; Officer Jeff

Mcdermott; John Denco, Jr., New Mexico State Police Chief;

Anthony Ortega, Valencia County Sheriff; John Does, one or

more, in their official and individual capacities; and

Board of County Commissioners for the County Of Valencia,

Defendants--Appellees.

No. 96-2124.

United States Court of Appeals, Tenth Circuit.

July 1, 1997

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[Copyrighted Material Omitted]

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Submitted on the briefs: [*]

Susan M. Morrison, The Branch Law Firm, Albuquerque, NM, for Plaintiff-Appellant.

Jeffrey A. Dahl and Clayton E. Crowley, Lamb, Metzgar, Lines & Dahl, Albuquerque, NM, for Defendants-Appellees.

Before ANDERSON, TACHA and BALDOCK, Circuit Judges.

TACHA, Circuit Judge.

Plaintiff Robert Latta filed this civil rights action pursuant to 42 U.S.C. § 1983 alleging violations of his Fourth and Fourteenth Amendment rights. Mr. Latta appeals the Memorandum Opinion and Order of the magistrate judge granting summary judgment in favor of the defendants on the basis of qualified immunity. For the reasons set forth below, we affirm.

BACKGROUND

On October 30, 1993, the dispatcher at the Albuquerque State Police Office informed Officer James Keryte that a possibly intoxicated driver was slumped over the steering wheel of a white Pinto parked on the northbound shoulder of Interstate 25 near the North Belen exit. Officer Keryte responded to the dispatch and proceeded to the location. He identified the Pinto and parked his patrol car 25 to 30 feet behind the vehicle.

As Officer Keryte parked his patrol car, he made a number of observations. Consistent with the dispatcher's information, he noticed that the driver was leaning over the steering

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wheel. Officer Keryte also observed that the driver was looking at him using his rearview and outside mirrors. Officer Keryte noted that the driver was fumbling with something underneath the seat. At this point, Officer Keryte called the dispatcher and described his location and the license number of the Pinto.

Officer Keryte exited his vehicle and approached the Pinto from the passenger's side. He noticed that the driver appeared unclean and that his clothes were unkempt and dirty. Officer Keryte believed that the driver's appearance indicated that he had been on a drinking binge. As Officer Keryte approached the Pinto, he asked the driver if he was okay. He also asked the driver to get out of the car. Officer Keryte received no response to his questions.

Officer Keryte then approached the vehicle from the driver's side. As he made the approach, the driver locked his door and rolled up his window. Officer Keryte again asked the driver if he was all right and if he would step out of the car. As before, he received no reply. Officer Keryte asked for a driver's license and registration. The driver did not respond. Instead, the driver asked for Officer Keryte's identification. As Officer Keryte reached into his wallet to produce the identification, the driver started his car and drove off. Officer Keryte yelled at him to stop, but he continued driving.

Officer Keryte ran to his patrol car, informed the dispatcher about what had happened, engaged his emergency equipment, and began pursuing the Pinto. Using his radar, Officer Keryte determined that the man was traveling at an average of 50 mph in a 65 mph zone.

After Officer Keryte caught up with the Pinto, he attempted to pass the car. Each time, however, the driver swerved his car to prevent Officer Keryte from passing. Officer Keryte became concerned that the driver would leave Interstate 25 and travel into a populated area where he might cause an accident. Officer Keryte attempted to stop the car by twice bumping it from behind, but the driver continued in a northerly direction.

Officer Keryte contacted his supervisor on duty, Sergeant Eugene Catanach, to request permission to use other means to stop the driver. Officer Keryte requested and received permission to shoot out the car's tires.

Officer Keryte stopped his patrol car and retrieved a rifle from the trunk. He rolled down the passenger side window and rested the gun on the window frame of the passenger door. Officer Keryte then continued his pursuit, eventually catching up with the Pinto.

As Officer Keryte pulled up to the Pinto, he shot the Pinto's left rear tire, which immediately went flat. Officer Keryte then backed off for a moment to see if the car would stop. The driver, however, continued. Officer Keryte then shot the Pinto's left front tire. At some point, the barrel of Officer Keryte's weapon passed by the driver.

In the meantime, officers from the Valencia County Sheriff's Department and the Los Lunas Police Department constructed a two-car roadblock at the Los Lunas Exit in order to stop the Pinto. The driver stopped his car about 40 to 50 feet from the roadblock.

Officer Keryte exited his patrol car and approached the Pinto from the driver's side with his weapon drawn. At the same time, the Valencia County and Los Lunas officers approached the front of the vehicle with their weapons drawn.

Officer Keryte asked the man to get out of the Pinto but he did not comply. Therefore, Officer Keryte knocked out the driver's side window with the barrel of his gun and unlocked the door. He attempted to remove the man from the Pinto, but the man grabbed the steering wheel and resisted. Officer Keryte and two other officers forcibly removed the man from the Pinto. The officers placed him face down on the ground and restrained his hands and feet.

Officer Keryte retrieved the man's driver's license and contacted the dispatcher. The dispatcher informed Officer Keryte that the Pinto was registered to Margaret Brock. The dispatcher told Officer Keryte that the authorities had contacted Ms. Brock. Ms. Brock explained that the man in the Pinto

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was her son, Robert Latta, and that he suffered from paranoid schizophrenia.

After the officers restrained Mr. Latta, he apparently began hyperventilating. Officer Keryte called an ambulance as a precaution. When the ambulance arrived at the scene, one of the paramedics observed that Mr. Latta suffered from swollen ankles and mild abrasions on his wrists and over his left eye. The paramedic, however, did not consider the wrist and ankle restraints to be tight.

With the officers' help, the paramedics placed Mr. Latta on a gurney and placed a soft cotton bandage on Mr. Latta's wrists and ankles. The paramedics then transported Mr. Latta to the University of New Mexico emergency room. He was treated and then admitted to the University of New Mexico Mental Health Unit for treatment and observation. Mr. Latta was never formally arrested.

Mr. Latta filed this suit pursuant to 42 U.S.C. § 1983 alleging violations of his Fourth and Fourteenth Amendment rights. 1 He also brought several state law claims. 2 The parties agreed to have a magistrate hear the case pursuant to 28 U.S.C. § 636(c)(1). The defendants moved for summary judgment on all of the claims based on qualified immunity. On May, 17, 1996, the magistrate granted the defendants' motion for summary judgment with respect to the federal claims but declined to address whether to exercise supplemental jurisdiction over the state tort claims. The magistrate entered a final judgment with respect to the federal claims under Federal Rule of Civil Procedure 54(b), and Mr. Latta filed a timely notice of appeal. We exercise jurisdiction pursuant to 28 U.S.C. §§ 1291 and 636(c)(3). 3

DISCUSSION

I. SUMMARY JUDGMENT AND QUALIFIED IMMUNITY STANDARDS

In granting summary judgment in favor of the defendants, the magistrate concluded that the defendants were entitled to qualified immunity on Mr. Latta's Fourth and...

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