478 F.3d 1108 (10th Cir. 2007), 04-2062, Cortez v. McCauley

Docket Nº:04-2062.
Citation:478 F.3d 1108
Party Name:Rick CORTEZ and Tina Cortez, Plaintiffs-Appellees, v. John McCAULEY, James Gonzales, Curtis Sanchez, Shureke Covington, and Joe Bowdich in their individual capacities, the Board of Commissioners of the County of Bernalillo, New Mexico, Defendants-Appellants. and Raquel Villegas, Defendant.
Case Date:February 16, 2007
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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478 F.3d 1108 (10th Cir. 2007)

Rick CORTEZ and Tina Cortez, Plaintiffs-Appellees,


John McCAULEY, James Gonzales, Curtis Sanchez, Shureke Covington, and Joe Bowdich in their individual capacities, the Board of Commissioners of the County of Bernalillo, New Mexico, Defendants-Appellants.


Raquel Villegas, Defendant.

No. 04-2062.

United States Court of Appeals, Tenth Circuit.

Feb. 16, 2007

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Paul J. Kennedy (Mary Y.C. Han with him on the briefs), of Kennedy & Han, P.C., Albuquerque, NM, and Caren I. Friedman, Santa Fe, NM, for Plaintiffs-Appellees.

William D. Slease (Jonlyn M. Martinez with him on the briefs), of Slease & Martinez, P.A., Albuquerque, NM, for Defendants-Appellants.



KELLY, Circuit Judge, joined by TACHA, Chief Judge, EBEL, HENRY, BRISCOE, LUCERO, and MURPHY, Circuit Judges, and joined in part by HARTZ, O'BRIEN, McCONNELL, TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.

We granted rehearing en banc primarily to consider under what circumstances, if any, an excessive force claim is subsumed in an unlawful arrest claim. The panel opinion upheld the district court's denial of qualified immunity except for one excessive force claim, which the panel determined warranted qualified immunity. Cortez v. McCauley, 438 F.3d 980, 1002 (10th Cir.2006). We reject the notion that an excessive force claim is subsumed in an unlawful arrest claim in the facts presented by this case. Because our conclusion necessitates a change in some of the analysis, we vacate the panel opinion. Our jurisdiction to hear this appeal from the denial of partial summary judgment on qualified immunity grounds arises under 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). We affirm in part and reverse in part.

Plaintiffs-Appellees, Rick Cortez and Tina Cortez, filed suit alleging claims pursuant to 42 U.S.C. § 1983 as well as claims under New Mexico law, seeking damages from employees of the Bernalillo County Sheriff's Department and the Board of County Commissioners of the County of Bernalillo, New Mexico ("Board"). The Plaintiffs alleged, inter alia, that the Defendants violated the Plaintiffs' Fourth Amendment rights by (1) unlawfully arresting and interrogating the Plaintiffs; (2) using excessive force on the Plaintiffs; and (3) unreasonably searching the Plaintiffs' home. The district court denied the Defendants' motion for partial summary judgment as to Defendants McCauley, Gonzales, Sanchez, and Covington. With respect to the other Defendants, Bowdich and the Board, the court concluded that the Plaintiffs had made a meritorious showing under Fed.R.Civ.P. 56(f). Consequently, these Defendants' motions for partial summary judgment were denied without prejudice pending further discovery.


On May 26, 2001, at 12:24 a.m., the Bernalillo County Sheriff's Department received

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a telephone call from a nurse at Saint Joseph's Hospital alerting that Raquel Villegas ("Ms.Villegas"), had brought her two-year-old daughter to the hospital alleging that the child had complained that her babysitter's "boyfriend" 1 had "hurt her pee " In response to this allegation, the Defendants McCauley, Gonzales, Sanchez, and Covington were dispatched to Plaintiffs' residence. The officers did not wait to receive the results of the medical examination of the child, did not interview the child or her mother, and did not seek to obtain a warrant.

At approximately 1:00 a.m., the deputies made contact with the Plaintiffs. Rick Cortez was asleep when he was suddenly awakened by noises and lights in his fenced back yard. He heard a knock on the front door. Wearing only a pair of shorts, Rick Cortez opened the front door and saw two police officers through the closed screen door. He repeatedly inquired what was going on. The officers did not answer but instead ordered him to exit his house. As he opened the screen door and began to leave the house, the officers seized him, handcuffed him, read him his Miranda 2 rights, and placed him in the back of a patrol car where he was subjected to questioning.

Tina Cortez was awakened by her husband as he got out of bed. Shortly after Rick Cortez left the bedroom, she followed him. She reached the front door just in time to watch the Defendants handcuff her husband and place him in the back of the patrol car. Tina Cortez headed toward the bedroom in order to make a telephone call, but before she could complete the call, Defendant McCauley entered the home, seized her by the arm, and physically escorted her from her home. The officer placed her in a separate patrol car where she was subjected to questioning. Defendant McCauley did allow Tina Cortez to use his cell phone. Both Rick and Tina Cortez indicate that an officer seized the keys to their house, locked the door, and would not let them return for approximately an hour. They allege that when they returned, the Defendants informed them that their dog had been maced and his eyes needed to be washed out. Aplt.App. 23, 63, 64.

Defendants performed a warrantless search of the home, purportedly to find additional children that might be present and to eliminate the possibility of any unknown threat to officer safety. During the subsequent interrogations of the Plaintiffs, the Defendants learned that Tina Cortez managed a small day care facility in which she took care of several children. The Defendants further learned that Ms. Villegas had a verbal altercation with the Plaintiffs after the Plaintiffs informed her that they would no longer take care of her child. Additionally, while providing his statement, Rick Cortez also informed the officers that his handcuffs were too tight and caused excessive pain. Despite his declaration and the fact that Rick Cortez supposedly was not under arrest, the officers never loosened the handcuffs.

As these events unfolded at the Cortez residence, Officer Zuniga and Detective Foster made contact with Ms. Villegas at the hospital. Ms. Villegas provided an unsworn written statement in which she described the events that led to her accusation.

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She also recounted a verbal dispute she had with the Plaintiffs. Additionally, Detective Foster was informed by the nurse who conducted the examination that "no evidence of penile penetration was present." Further, the nurse identified two potential sources of the child's vaginal irritation. 3

Because the hospital did not find any evidence of molestation, the Plaintiffs were released from detention and permitted to reenter their home. The dispatch report for the incident indicated that they were released sometime between 1:49 a.m. and 2:16 a.m. on May 26, 2001. Rick Cortez was never charged with a crime associated with the allegations of Ms. Villegas. 4

Based on this early morning encounter with law enforcement officers, the Plaintiffs filed suit. Appellants McCauley, Gonzales, Sanchez, Covington, and Bowdich moved for summary judgment on grounds of qualified immunity as to the § 1983 claims against them in their individual capacities. Defendants McCauley, Gonzales, Sanchez and Covington asserted they did not commit an unreasonable search and seizure against either Plaintiff and that excessive force was not used against either Plaintiff. Defendant Bowdich argued he could not be held liable in his supervisory capacity. Shortly after filing the motion, the Defendants above joined with the Board and moved that discovery be stayed pending the outcome of their motion for summary judgment. On March 17, 2004, the district court denied the Defendants' motion for summary judgment. This appeal followed.

Standard of Review

"Because of the underlying purposes of qualified immunity, we review summary judgment orders deciding qualified immunity questions differently from other summary judgment decisions." Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.2001). When a defendant asserts a qualified immunity defense, the burden shifts to the plaintiff, who must first establish that the defendant violated a constitutional right. Reynolds v. Powell, 370 F.3d 1028, 1030 (10th Cir.2004). "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If, on the other hand, a violation has been shown, the plaintiff must then show that the constitutional right was clearly established. See id. "This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition...." Id. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation...." Id. at 202, 121 S.Ct. 2151. 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. (citing Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).

We have held that, for a right to be clearly established, "there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have

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found the law to be as the plaintiff maintains." Medina v. City of Denver, 960 F.2d 1493, 1498 (10th Cir.1992). The Supreme Court has explained that "officials...

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