Fogarty v. Gallegos

• Decision Date: 18 April 2008
• Docket Number: No. 06-2279.,No. 06-2238.,06-2238.,06-2279.
• Citation: 523 F.3d 1147
• Parties: John D. FOGARTY, Plaintiff-Appellee, v. Gilbert GALLEGOS; City of Albuquerque, Defendants, and John Gonzales; Donald Keith; Michael Fisher; Steven Hill; Nick Gonzales; Dave Hubbard, in their individual capacities, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

523 F.3d 1147

John D. FOGARTY, Plaintiff-Appellee, v. Gilbert GALLEGOS; City of Albuquerque, Defendants, and John Gonzales; Donald Keith; Michael Fisher; Steven Hill; Nick Gonzales; Dave Hubbard, in their individual capacities, Defendants-Appellants.

No. 06-2238.

No. 06-2279.

United States Court of Appeals, Tenth Circuit.

April 18, 2008.

Jerry A. Walz, Walz and Associates, Cedar Crest, NM, for Defendants-Appellants.

Luis Robles, Robles, Rael & Anaya, P.C., Albuquerque, NM, for Defendants-Appellants.

Paul J. Kennedy (Mary Y.C. Han, with him on the briefs), Kennedy & Han, P.C., Albuquerque, NM, for Plaintiff-Appellee.

Before LUCERO, EBEL, and HOLMES, Circuit Judges.

LUCERO, Circuit Judge.

Plaintiff-Appellee John D. Fogarty brought this action against six Albuquerque Police Department ("APD") officers and supervisors ("defendants"),¹ alleging constitutional violations under 42 U.S.C. § 1983 as well as state law tort claims. On appeal, defendants assert that they are entitled to qualified immunity from the § 1983 claims and summary judgment on certain of Fogarty's state law tort claims. Exercising limited jurisdiction over this interlocutory appeal pursuant to Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), we affirm the district court's denial of summary judgment to John Gonzales, Nick Gonzales, Steven Hill, and Dave Hubbard, reverse the denial of summary judgment to Donald Keith, and dismiss defendants' state-law appeals for lack of jurisdiction.

I

A

Fogarty's claims arise from his March 20, 2003, arrest by APD officers during an antiwar protest and march. Although the protest was chronicled on videotape, the parties vigorously dispute significant details surrounding the actions of the APD, Fogarty, and other protesters. We thus set forth a general description of events here, but discuss the district court's factual findings as we address defendants' specific contentions.

In the days leading up to the March 2003 invasion of Iraq, the area of downtown Albuquerque near the University of New Mexico ("UNM") campus became home to several antiwar protests. Protest leaders planned a demonstration for March 20, 2003, the day after the United States invaded Iraq, and met beforehand with the APD to discuss logistics. The protest was to take place in part on UNM property, where protests were allowed on its campus without restriction under the university's policy, but also on the city streets, where defendants claim that city and state law requires permits for large gatherings or marches. Although the protesters had not obtained a permit, APD coordinated with protest leaders and planned to close one lane of the street adjacent to the UNM bookstore, where the organizers planned to gather, if necessary. The exact nature and extent of APD's acquiescence to the protest is disputed by the parties.

Around 5:00 p.m. that evening, a crowd gathered on the UNM campus to express opposition to the war. Defendant Captain John Gonzales supervised the APD response, consisting of up to 75 officers and including SWAT teams, equine units, canine units, traffic officers, and a bomb squad. Later, John Gonzales also mobilized Emergency Response Teams ("ERTs"). Members of SWAT and ERT wore face-concealing gas masks, and ERT uniforms did not have any identifying marks such as the officers' names or badge numbers.² Fogarty alleges that officers wearing standard uniforms concealed their badge numbers with tape.

At the protest's peak, between 500 and 1000 individuals were present, spilling over onto Albuquerque city sidewalks fronting UNM and eventually filling the crosswalks of adjacent streets. According to APD, the protesters' occupation of the crosswalks effectively blocked all traffic on Central Avenue, the street running past the bookstore. To ensure the crowd's safety, APD closed the street just east of the bookstore. After the street was closed, the crowd flooded into the rest of the street. The protesters then began moving west on Central Avenue. Eventually, they encountered a police skirmish line blocking the avenue, at which point they turned around and began walking east, back toward the bookstore.

As the crowd reversed direction, roughly an hour after the protesters first gathered, John Fogarty arrived at the bookstore to join the group. Fogarty, a physician and faculty member at UNM, was accompanied by his wife, a friend, and his friend's fiancee. Fogarty observed that several streets had been closed and assumed that police were permitting demonstrators to march in the streets. Fogarty then joined the main group of marchers, which by now was four blocks away, heading back east toward the bookstore. According to Fogarty, the mood of the group at this time was "very peaceful," a characterization which defendants vehemently contest. Fogarty noticed that some protestors had formed a drum circle, and that several people were dancing and singing.

When the march reached the bookstore, Fogarty and his friend went back to his friend's car to collect their drums. After retrieving the instruments, Fogarty and his friend joined a drum circle of approximately ten protesters in the westbound lane of Central Avenue, in front of the bookstore. According to APD officers, the drummers were inciting the crowd and making it difficult to communicate, whereas Fogarty claims that they were "play[ing] a really nice samba" without being excessively loud; he played the drum with his hands, although many others used sticks. Fogarty stated that his drumming was his "personal way of expressing something through music," in this case, his opposition to the Iraq war. He remained with the other drummers for approximately 20 minutes, drumming intermittently during that time.

While the crowd was gathered around the bookstore, police made announcements over the loudspeaker system ordering protesters to either disperse or return to UNM property. Fogarty testified that he could not understand these "garbled and unintelligible" warnings, and it is undisputed that APD never ordered the drummers to stop playing. Evidence presented to the district court indicated that this communication problem may have been due to the noise of the drumming, a malfunctioning speaker system, or the failure of some police sirens to shut down prior to the announcement.

APD officers followed the warnings by deploying tear gas. After the first volley of gas, Fogarty moved onto the steps of the UNM bookstore because he "was there for a peaceful demonstration" and wanted to avoid the tear gas. According to Fogarty, this was the first time he understood that APD wanted the protesters out of the streets. Police then repeated the order to clear the streets and move on to UNM property, which Fogarty reported hearing. Most people complied, but a handful of demonstrators remained in the streets.

At some point during these events, John Gonzales ordered APD forces to "remove the drums."³ Gonzales claims that this order meant that officers should first try to stop the drumming and then arrest the drummers only if necessary, but subordinate officers testified that they understood the statement as a direct order to arrest the drummers. In response to Gonzales' order, police teams moved in and arrested some of the drummers who remained in the street, but not Fogarty, who had already left the street.

While he was standing on the UNM campus, Fogarty alleges that an APD officer shot him with some sort of projectile, perhaps a "pepper ball" or some other variety of "less lethal munition."⁴ The police also deployed a second volley of tear gas, but from his location on the bookstore steps, Fogarty was only minimally affected by the gas.

Four to five APD officers then approached Fogarty as he knelt on the steps. Fogarty does not remember if he was drumming at the time. The officers, whom Fogarty cannot positively identify, picked him up and began leading him down the steps. Fogarty had difficulty walking because the drum was attached to his belt. As officers took him toward the street and closer to the tear gas, Fogarty, who has asthma, suffered an "acute broncospasm" that rendered him unable to walk further. Officers then forced Fogarty to the ground, pulling his arms behind his back and forcing the palm of his hand toward his forearm in a "hyperflexion position." They handcuffed him, ripped the drum off his belt, and dragged him down the street. Eventually realizing that Fogarty was having an asthma attack, officers stopped to allow him to catch his breath.

Fogarty was then taken into custody in a police van and later transported by ambulance to a hospital. APD released Fogarty without charging him with any crime. Despite clear instructions that each officer was to fill out an arrest report, no report was filed on Fogarty's arrest. As a result of his encounter with the APD officers, Fogarty suffered a torn tendon in his wrist and was treated at the hospital for asthma.

Defendants' individual roles in Fogarty's arrest are the subject of a spirited factual dispute. Fogarty was never able to identify the officers who arrested him, in part because ERT uniforms lacked name tags or badge numbers and no one completed an arrest report for Fogarty.⁵ Fogarty, however, makes several allegations linking defendants to his arrest.

John Gonzales commanded the group of officers who responded to the protest and ordered the drummers removed. Fogarty also stated that he saw an officer, whom the district court concluded might have been John Gonzales, witnessing his arrest, but the record on this point is not clear.

Sergeant Steven Hill led a SWAT team, which included Nick Gonzales and Dave Hubbard. In response to the order to remove the drummers, he and his team began arresting people around the area of the bookstore. Although Hill stated that he witnessed Fogarty's arrest, he could not say with certainty which officers actually seized Fogarty. Both Nick Gonzales and Hubbard deny...