Albright v. Rodriguez

• Decision Date: 07 April 1995
• Docket Number: No. 94-2108,94-2108
• Citation: 51 F.3d 1531
• Parties: Richard ALBRIGHT, Plaintiff-Appellee, v. M. RODRIGUEZ, U.S. Border Patrol Agent; Sierra County, New Mexico Board of County Commissioners; Ron Brown, Sheriff; Marcel La France; New Mexico Department of Public Safety (NM State Police), doing business as NM State Police; New Mexico State Police Officer Massengale, Officer; Robert Atwood; Greg Silvey; Stoops, Doctor; Ron Lopez; Edmund Kase, Judge; Adam Monsibaiz, Defendant, and Rudy Carey, Sergeant, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1531

51 F.3d 1531

Richard ALBRIGHT, Plaintiff-Appellee, v. M. RODRIGUEZ, U.S. Border Patrol Agent; Sierra County, New

Mexico Board of County Commissioners; Ron Brown, Sheriff;

Marcel La France; New Mexico Department of Public Safety

(NM State Police), doing business as NM State Police; New

Mexico State Police Officer Massengale, Officer; Robert

Atwood; Greg Silvey; Stoops, Doctor; Ron Lopez; Edmund

Kase, Judge; Adam Monsibaiz, Defendant,

and

Rudy Carey, Sergeant, Defendant-Appellant.

No. 94-2108.

United States Court of Appeals, Tenth Circuit.

April 7, 1995.

Philip B. Davis, Albuquerque, NM, for plaintiff-appellee.

Michelle Lalley Blake (Norman F. Weiss with her on the brief), of Simone, Roberts & Weiss, P.A., Albuquerque, NM, for defendant-appellant. Manuel I. Arrieta, of Weinbrenner, Richards, Paulowsky & Ramirez, P.A., Las Cruces, NM, on the opening brief for defendant-appellant.

Before BALDOCK and BRORBY, Circuit Judges, and BROWN, District Judge. ^*

BALDOCK, Circuit Judge.

Defendant Rudy Carey appeals the district court's denial of his motion for summary judgment in Plaintiff Richard Albright's 42 U.S.C. Sec. 1983 action. We exercise jurisdiction under 28 U.S.C. Sec. 1291, see Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985), and reverse.

I.

On March 21, 1992, Dennis Zumwalt, his son, and Plaintiff were traveling north on Interstate 25 in a Ford van. Zumwalt, who was driving, stopped at the border patrol checkpoint near Truth or Consequences, New Mexico. Border Patrol Agent Adam Monsibaiz approached the van to question Zumwalt. Plaintiff, a passenger in the van, directed Zumwalt not to answer Agent Monsibaiz's questions and told Zumwalt they should leave the checkpoint. Agent Monsibaiz learned Zumwalt did not have a driver's license and directed Zumwalt and Plaintiff to the secondary inspection site.

As Zumwalt pulled over to the secondary inspection site, Agent Monsibaiz approached the van. Agent Monsibaiz saw a handgun in the van when Zumwalt, his son, and Plaintiff exited the van, shut and locked the doors. Agent Monsibaiz again asked Zumwalt for his driver's license. Zumwalt replied he did not have one. Agent Monsibaiz asked to see Zumwalt's handgun. The record reflects Zumwalt refused to let him see it. Aplt.App. at 72. Zumwalt and his son began to walk across the street towards the border patrol trailer. A border patrol agent told Zumwalt to go back to the van but Zumwalt refused, and said he and his son wanted to stand in the shade of the border patrol trailer. Border Patrol Agent Manuel Rodriguez contacted the Sierra County Sheriff's Department to request state police backup.

Agent Monsibaiz then asked Plaintiff for identification. The parties dispute the events that followed. According to Agent Monsibaiz, Plaintiff advanced towards him, pointed his finger within two to three inches of Agent Monsibaiz's face, yelled at him, called him a communist and "something about checkpoint Charlie." Id. at 106. Plaintiff refused to identify himself to Agent Monsibaiz. Agent Rodriguez came over and ordered Plaintiff to back off, but Plaintiff continued to argue. According to Agent Monsibaiz, Plaintiff prevented him from getting to the van when he "rushed" out of the van towards him. Agents Monsibaiz and Rodriguez stated they feared for their safety as a result of Plaintiff's conduct.

According to Plaintiff, Agent Monsibaiz approached him and asked him for identification. Thus, Plaintiff did not prevent Agent Monsibaiz from getting to the van. Moreover, Plaintiff contends he was two to three feet from Agent Monsibaiz and shook, instead of pointed, his finger at Agent Monsibaiz. Further, Plaintiff contends he did not yell at Agent Monsibaiz, but instead merely loudly asserted his constitutional rights to refuse to identify himself. Plaintiff disputes that the agents' fear was objectively reasonable. Finally, Plaintiff asserts that he backed off and did not argue anymore when told to do so by Agent Rodriguez.

At some point during the exchange, Plaintiff demanded to know if they were under arrest. Agent Monsibaiz informed Plaintiff he was not under arrest and was free to leave, but that Zumwalt needed to wait for the state policeman because he did not have a driver's license. Zumwalt, his son, and Plaintiff remained at the checkpoint.

When Defendant, who is a Sergeant with the Sierra County Sheriff's Department, arrived a few minutes later, Agent Monsibaiz took him aside and informed him that: (1) he had the individuals that had come through the checkpoint; (2) the individuals had locked the van with a weapon inside; (3) the driver of the van did not have a driver's license; (4) the individuals were uncooperative and refused to identify themselves; and (5) Plaintiff pointed his finger at Agent Monsibaiz "pretty close to his nose." Aplee. Supp.App. at 19, 24. Plaintiff does not dispute that Agent Monsibaiz informed Defendant of these facts. Aplee. Br. at 12.

Based on this information, Defendant believed Plaintiff and Zumwalt had obstructed the border patrol agents' duties. Aplt.App. at 125. Defendant began to investigate. Defendant asked Zumwalt for his driver's license. Zumwalt replied that he did not have one but produced a pilot's license. Defendant asked Plaintiff for identification. Plaintiff refused to produce any. Defendant informed Plaintiff he could be arrested under New Mexico law for concealing his identity. Plaintiff told Defendant "to radio in a tort claim," put out his hands as if to be handcuffed, and said "go ahead." Aplt.App. at 154; Aplee. Supp.App. at 5. Defendant arrested Plaintiff for concealing identity. Aplt.App. at 126. See N.M.Stat.Ann. Sec. 30-22-3 (misdemeanor offense to conceal identity "with intent to obstruct the due execution of the law or with intent to intimidate, hinder or interrupt any public officer" in the performance of his duties). In addition, Defendant filled out an affidavit and complaint charging Plaintiff with obstruction, see N.M.Stat.Ann. Sec. 30-22-1(D) (misdemeanor offense to resist, evade, or obstruct a peace officer in the lawful discharge of his duties), but dropped the obstruction charge on the advice of the district attorney's office. A magistrate later dismissed the concealing identity charge.

In June 1993, Plaintiff filed through counsel his second amended Sec. 1983 complaint against Defendant alleging violations of his First and Fourth Amendment rights. ¹ Specifically, Plaintiff alleged Defendant had no probable cause to arrest him and that his arrest for concealing identity violated his Fourth Amendment right to be free from unlawful searches and seizures and his First Amendment right "not to speak." Aplt.App. at 155. Defendant moved for summary judgment based on qualified immunity.

The district court held a hearing on Defendant's motion in April 1994. At the hearing, Plaintiff contended his arrest for refusing to identify himself violated the First and Fourth Amendments. The district court asked Defendant to explain why there were no genuine issues of material fact with regard to these claims. Defendant attempted to set forth the undisputed facts. Plaintiff responded that he disputed many material facts, including the events of the verbal confrontation. Defendant responded that Plaintiff had not shown he violated clearly established law. Without addressing whether Plaintiff had shown Defendant violated clearly established law, the court concluded there were genuine issues of material fact with respect to Plaintiff's claims and denied Defendant's motion for summary judgment based on qualified immunity. This appeal followed.

On appeal, Defendant contends the court erred in denying his motion for summary judgment. Defendant contends he was entitled to summary judgment based on qualified immunity because Plaintiff failed to show he violated clearly established law. "We review the district court's denial of qualified immunity on summary judgment de novo." Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir.1995). " 'Under the summary judgment standard, we review the evidence in the light most favorable to the nonmoving party.' " Id. (quoting Bisbee v. Bey, 39 F.3d 1096, 1100 (10th Cir.1994)).

II.

Qualified immunity is designed to shield public officials from liability and ensure "that erroneous suits do not even go to trial." Hinton v. City of Elwood, Kan., 997 F.2d 774, 779 (10th Cir.1993) (citing Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815; Harlow v. Fitzgerald, 457 U.S. 800, 806-08, 102 S.Ct. 2727, 2732-33, 73 L.Ed.2d 396 (1982); Pueblo Neighborhood Health Ctrs v. Losavio, 847 F.2d 642, 645 (10th Cir.1988)). Thus, the Supreme Court has repeatedly "stressed the importance of resolving immunity questions at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991).

Once a defendant pleads qualified immunity, the plaintiff initially bears a heavy two-part burden. Hannula v. City of Lakewood, 907 F.2d 129, 130-31 (10th Cir.1990). First, the plaintiff must demonstrate that the defendant's actions violated a constitutional or statutory right. Romero, 45 F.3d at 1475; see also Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991) ("A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is 'clearly established' ... is the determination of whether the plaintiff has asserted a violation of a constitutional right at all."); Hinton, 997 F.2d at 779 (plaintiff must first show the defendant's conduct violated the law). Second, the plaintiff must show that the constitutional or statutory rights the defendant allegedly violated were clearly established at the time of the conduct at issue. Davis v. Scherer, 468 U.S. 183, 197, 104 S.Ct. 3012, 3021, 82 L.Ed.2d 139 (1984). "[P]laintiff must articulate the clearly established constitutional right and the defendant's conduct...