Tanberg v. Sholtis

• Decision Date: 16 March 2005
• Docket Number: No. 03-2231.,03-2231.
• Citation: 401 F.3d 1151
• Parties: Deena TANBERG, and Valerie Ortega, Plaintiffs-Appellants, v. Officer Tom SHOLTIS, of the Albuquerque Police Department, in his official and individual capacities; City of Albuquerque, a municipal corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

401 F.3d 1151

Deena TANBERG, and Valerie Ortega, Plaintiffs-Appellants, v. Officer Tom SHOLTIS, of the Albuquerque Police Department, in his official and individual capacities; City of Albuquerque, a municipal corporation, Defendants-Appellees.

No. 03-2231.

United States Court of Appeals, Tenth Circuit.

March 16, 2005.

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Jason Bowles, (Mark D. Jarmie with him on the brief) Sharp, Jarmie & Bowles, Albuquerque, NM, for Plaintiffs-Appellants.

Richard A. Sandoval, (Kenneth C. Downes with him on the brief) Downes & Sandoval, P.C., Albuquerque, NM, for Defendant-Appellee Tom Sholtis.

Kathryn Levy, Deputy City Attorney, City of Albuquerque, Albuquerque, NM, on the brief, for Defendant-Appellee City of Albuquerque.

Before LUCERO, McCONNELL, and ANDERSON, Circuit Judges.

McCONNELL, Circuit Judge.

Following their arrest for being in a municipal park after it was closed, the Plaintiffs, Deena Tanberg and Valerie Ortega, brought suit asserting state and federal claims of false arrest, a federal claim of excessive force, and state law claims of assault and battery against the Defendants, Officer Tom Sholtis and the City of Albuquerque. After ordering a bifurcated trial, the district court granted Officer Sholtis's motion for judgment as a matter of law with regard to Plaintiffs' state and federal claims for false arrest, and the jury found for Officer Sholtis on Plaintiffs' claims of excessive force and assault and battery. Plaintiffs appeal the trial court's judgment as a matter of law dismissing their state and federal false arrest claims, the denial of their motion for a new trial, and evidentiary rulings made during trial. We AFFIRM.

I. Factual Background

Following a long day's work at the Albuquerque Balloon Fiesta, Ms. Tanberg and Ms. Ortega went to a bar to relax. Approximately three hours, three beers, and two shots of hard liquor (each) later, they left the bar and began the drive home. The two women stopped to buy bread for Ms. Ortega's grandmother and then drove to a park to take a walk. And so, armed only with a loaf of bread for grandmother, Plaintiffs entered the woods of Bianchetti Park. It was after 2:00 in the morning. Plaintiffs encountered several teenagers in the park and engaged in desultory conversation with them until the teenagers began to smoke marijuana, at which point Plaintiffs continued their walk through the park. What Plaintiffs apparently did not encounter was a sign listing the park's hours of operation; the park had closed at 10:00 p.m.

Meanwhile, at approximately 2:30 a.m., Officer Sholtis arrived at the park in a marked Albuquerque police car. Officer Sholtis was off-duty, but was wearing an authorized duty uniform. Having noticed two vehicles parked adjacent to the park, and aware that the park was closed, Officer Sholtis turned on his spotlight and scanned the park, observing a group of people by the picnic tables. Officer Sholtis turned on his emergency flashers and used his public address system to order everyone in the park to come toward his vehicle. Compliance with this instruction was something less than ideal. The teenagers scattered, motivating Officer Sholtis to make a second announcement on his public address system ordering everyone to come to his car. The second announcement had no more effect than the first, except on a sole teenager, who, less wily than her fellows, ran up to and entered the car next to Officer Sholtis's patrol car. The car was already occupied by several other teenagers. Officer Sholtis, unaware that the young woman had been using marijuana, informed the occupants of the car that the park was closed and advised them to go home, which they did.

Ms. Tanberg and Ms. Ortega neither dispersed as effectively as the majority of the teenagers nor approached the patrol car. Officer Sholtis spotted them walking rapidly away from him by the basketball court. Officer Sholtis drove his patrol car toward them, stopped, made yet another announcement on his public address system, and exited his vehicle. Ms. Ortega began to walk toward the patrol car in response to the command to do so, but Ms. Tanberg stepped off the path and attempted to hide behind some trees. Ms. Tanberg's uncooperative behavior caused Officer Sholtis to fear for his own safety, and he ordered both women to sit down in front of his patrol car. Neither did so. Officer Sholtis then identified himself as a police officer and instructed Ms. Tanberg to sit down or be put in handcuffs. Ms. Tanberg refused and began to walk past Officer Sholtis and away from his patrol car. Concerned that Ms. Tanberg was leaving the area, and that he would have to turn his back on one woman to pursue the other, Officer Sholtis attempted to handcuff Ms. Tanberg, who resisted his efforts. Officer Sholtis then used a "facedown stabilization" technique to force Ms. Tanberg to the ground, where, despite her continued resistance, he succeeded in handcuffing her. Aple. Br. 9. Ms. Tanberg's glasses were dislodged and broken during the arrest. Officer Sholtis then handcuffed Ms. Ortega without further incident.

Officer Sholtis and his arrestees remained in the park for some time, where the women were ultimately examined by emergency medical technicians from the Albuquerque Fire Department. The women were later transported to a police substation where they were kept, handcuffed, in holding cells. While the parties' accounts of the behavior of Ms. Tanberg and Ms. Ortega during this period differ markedly, it is agreed that Ms. Tanberg kicked her cell door a few times and Ms. Ortega threw a chair at the cell wall. Ms. Tanberg and Ms. Sholtis were then transported to a county detention center, and finally to a hospital. At some point in the evening, Ms. Tanberg sustained an avulsion fracture of her right arm. Due to a twisting motion, the ligaments in her right elbow had pulled a small piece of bone away from the remainder of the bone. Plaintiffs insist that Officer Sholtis was responsible for the injury to Ms. Tanberg's arm; testimony by Kim Kearney, a sergeant with the APD, suggested that Ms. Tanberg's injury may have been self-inflicted.

Plaintiffs were charged with resisting arrest, disobeying a police officer, and being in a park after closing. The district attorney ultimately dropped these charges and Plaintiffs filed suit against Officer Sholtis and the City of Albuquerque.

II. Analysis

A. Directed Verdict on State False Arrest Claims

During trial the court granted Officer Sholtis's motion for judgment as a matter of law on Plaintiffs' state and federal claims for false arrest. Plaintiffs argue that the trial court erred, and that when Albuquerque Police Department standard operating procedures (SOPs) and the subjective mental states of everyone involved are taken into account, Officer Sholtis lacked probable cause to arrest them. The Federal Rules of Civil Procedure provide for judgment as a matter of law "[i]f during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Fed.R.Civ.P. 50(a)(1). We review a district court's grant of a motion for directed verdict de novo. Fry v. Board of County Comm'rs, 7 F.3d 936, 938 (10th Cir.1993).

Plaintiffs contend that they raised a number of factual disputes at trial which precluded the grant of a motion for judgment as a matter of law. In Plaintiffs' formulation, Officer Sholtis's motives for arresting Plaintiffs, Plaintiffs' ignorance of park closing times, and the requirements of the Albuquerque Police Department (APD) SOPs regarding off-duty arrests raised disputes concerning the legality of the arrest that should have been submitted to the jury. We disagree. New Mexico law permits a police officer to make a warrantless arrest for a misdemeanor so long as the officer has probable cause to believe the offense has occurred in his presence. State v. Salas, 127 N.M. 686, 986 P.2d 482, 486 (1999). Since the factual disputes Plaintiffs raise do not affect the determination of whether the arrest was supported by probable cause, the trial court was correct to grant Officer Sholtis's motion for judgment as a matter of law.

Officer Sholtis apprehended the Plaintiffs for resisting arrest, disobeying a police officer, and being in the park after it was closed. Plaintiffs attach considerable significance to the fact that Officer Sholtis's "main reason" for arresting them, as revealed in his trial testimony, was their failure to obey his commands, not their presence in the park. Plaintiffs argue that Officer Sholtis's motivations affect the lawfulness of the arrest because it is not clear that Plaintiffs failed to obey his commands. Thus, Plaintiffs contend, there was a legally sufficient evidentiary basis for a reasonable jury to find for them on their false arrest claims, precluding a grant of judgment as a matter of law. This theory is tenable only if the lawfulness of an arrest depends on whether the arresting officer had a defensible primary motivation for making an arrest. It does not.

The New Mexico Supreme Court has considered the question whether a warrantless arrest depends for its validity on the arresting officer's perfect understanding of the proper grounds for the arrest and has concluded that it does not. In State v. Luna, 93 N.M. 773, 606 P.2d 183, 187 (1980), abrogated on other grounds, Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), a police officer arrested the defendant for violating a municipal ordinance prohibiting minors from allowing themselves to be served alcohol when unaccompanied by a parent. The defendant argued that the officer had no reasonable grounds to believe he had violated the ordinance in question, and while the court agreed with the defendant on this point, it nevertheless upheld the validity of the arrest. Id. at 188. The officer had observed...