549 F.3d 1269 (10th Cir. 2008), 07-2118, Buck v. City of Albuquerque

Docket Nº:07-2118.
Citation:549 F.3d 1269
Party Name:Lynn BUCK; Alma Rosa Silva-Banuelos; Denis Doyon; Lucy Gilster (by her next friend, Jennie Lusk); Brian Haney; Alicia Kisner (by her next friend, Lisa Kisner); Michael Kisner; Lane Leckman; Maria Santelli; Susan Schuurman; Christina Maya Trafton; Curtis Trafton; Nick Wechselberger, Plaintiffs-Appellees, v. CITY OF ALBUQUERQUE; Mayor Martin Chavez,
Case Date:December 09, 2008
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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549 F.3d 1269 (10th Cir. 2008)

Lynn BUCK; Alma Rosa Silva-Banuelos; Denis Doyon; Lucy Gilster (by her next friend, Jennie Lusk); Brian Haney; Alicia Kisner (by her next friend, Lisa Kisner); Michael Kisner; Lane Leckman; Maria Santelli; Susan Schuurman; Christina Maya Trafton; Curtis Trafton; Nick Wechselberger, Plaintiffs-Appellees,


CITY OF ALBUQUERQUE; Mayor Martin Chavez, in his individual capacity; Deputy Police Chief Ray Schultz, in his individual capacity; Albuquerque Police Officers Raymond Defrates, Michael Fisher, James Leroy Fox, Nicholas Gonzales, Allen S. Hancock, Sgt. Steven Hill, Charles Lopez, Daniel S. Magetteri, James Montoya, Sgt. Shawn O'Connell, Pablo Padilla and James Perdue, in their individual capacities, Defendants,


Captain John Gonzales, in his official and individual capacities, Defendant-Appellant.

No. 07-2118.

United States Court of Appeals, Tenth Circuit.

December 9, 2008

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Jerry A. Walz, Walz and Associates, Cedar Crest, NM for Defendant-Appellant.

Carolyn M. Nichols, Rothstein, Donatelli, Dahlstrom, Hughes, Schoenburg & Bienvenu, LLP, Albuquerque, NM (with Mary Louise Boelke, Kennedy & Oliver,

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Albuquerque, New Mexico on the brief), for Plaintiffs-Appellees.

Before HENRY, Chief Judge, BRISCOE, and HOLMES, Circuit Judges.

HENRY, Chief Judge.

In this fact-bound interlocutory appeal, Captain John Gonzales appeals the district court's denial of his motion for summary judgment as to six claims against him, each originating in events that transpired during an antiwar rally at the University of New Mexico (“ UNM" ). Captain Gonzales raises six challenges to the district court's order: the district court erred when it denied summary judgment as to plaintiffs' claims regarding (1) unconstitutional arrest; (2) excessive force; (3) First Amendment infringement; (4) retaliatory prosecution; (5) malicious prosecution; and (6) malicious abuse of process under New Mexico law. We hold that the district court was correct when it determined that Capt. Gonzales was not entitled to qualified immunity as to whether Capt. Gonzales is liable under Section 1983 for (1) directing the arrests of and (2) authorizing the use of force against certain of the Plaintiffs. We also agree that the rights underlying these claims were clearly established. As to the (3) First Amendment retaliation claim, because the right to peaceful assembly and freedom of speech is clearly established, Capt. Gonzales's challenges to the district court's findings fail. We are unable to review the balance of Capt. Gonzales's challenges, because our jurisdiction is limited. Specifically, we are without jurisdiction to consider factual disputes as to the excessiveness of the force officers used against the protestors, or the sufficiency of the evidence underlying the claims involving First Amendment retaliation, retaliatory prosecution, or malicious prosecution. Finally, we decline to exercise pendent state law jurisdiction over the state law tort claim of malicious abuse of process.


A. Facts

We need not restate the background underlying the antiwar protest, as our related opinion in Fogarty v. Gallegos, 523 F.3d 1147, 1150-53 (10th Cir.2008), has already done so. In our analysis of Capt. Gonzales's challenges, we will supplement this factual background as needed, particularly as to the individual plaintiffs.

B. Procedural History

The sixteen Plaintiffs filed a complaint in New Mexico state court, raising nine counts against either the officers, Capt. Gonzales, the City, or a combination of these defendants, alleging violations of their rights under 42 U.S.C. § 1983, and various state torts. The claims that pertain to Capt. Gonzales were (1) wrongful seizure and arrest (brought by Plaintiffs Alma Rosa Silva-Banuelos, Michael Kisner, and Denis Doyon, the “ Arrested Plaintiffs" ); (2) excessive use of force (brought by Plaintiffs Camille Chavez, Mr. Kisner, and Mr. Doyon, the “ Excessive Force Plaintiffs" ); (3) suppression of rights to freedom of expression and assembly; (4) retaliatory prosecution (brought by the Arrested Plaintiffs); (5) malicious prosecution (brought by the Arrested Plaintiffs); (6) the state law tort of malicious abuse of process (brought by the Arrested Plaintiffs); and (7) supervisory liability for violations of constitutional rights.

The defendants removed the case to federal court, and Capt. Gonzales sought summary judgment as to each of the above claims. The district court denied summary judgment to Capt. Gonzales on the unreasonable seizure and arrest claims relating

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to the Arrested Plaintiffs. The district court found that Capt. Gonzales undisputedly “ played a role in developing the APD's plan for the protest and acted as the incident commander in charge." Aplts' App. vol. VIII, at 2009.1 He expected his officers to take action only when in receipt of a specific directive from him. He ordered the arrest of five to seven provocateurs, and, rather than follow APD policy of citing and releasing the arrestees, he ordered his officers to book the arrested persons downtown.

The court noted Capt. Gonzales's direction “ set in motion a series of events that he knew or reasonably should have known would cause his officers to violate Plaintiffs Chavez, Doyon, and Michael Kisner's constitutional rights when he authorized the use of pepper ball rounds, ordered Plaintiff Doyon's arrest, and ordered his officers to sweep people [including Mr. Kisner] from the front of the Frontier restaurant." Id. at 2035. As to the remaining Plaintiffs, the court noted that any injuries were de minimis at most, and there was no evidence that Capt. Gonzales's command to use force was malicious.

The district court granted summary judgment to Capt. Gonzales as to the excessive force claims that related to the officers' force used against all Plaintiffs except for Ms. Chavez, Mr. Doyon, and Mr. Kisner. After succumbing to tear gas and feeling immobile, Ms. Chavez, circled by APD officers, laid down in the street while an officer repeatedly fired non-lethal pepper ball rounds at her. During Mr. Doyon's arrest, which he did not resist, he was pushed face down on the pavement, kneed in the back, pressed face forward on the hood of a police car, and exposed to tear gas while handcuffed in a police van. Mr. Kisner, who similarly did not resist arrest or attempt to flee, was hit repeatedly by an officer's horse, sprayed with pepper spray, pinned between two horse-mounted officers, kicked in the back, and shaken violently by the strap of his shoulder bag. The district court determined each of these three plaintiffs demonstrated sufficient evidence that she or he was subjected to excessive force in violation of the Fourth Amendment.

The district court denied summary judgment to Capt. Gonzales on the First Amendment retaliation claim, noting that “ there is some circumstantial evidence that [Capt.] Gonzales may have been motivated to interfere with Plaintiffs' First Amendment rights." Id. at 2042. Finally, the district court granted summary judgment to Capt. Gonzales as to Plaintiffs' § 1983 claims against him in his official capacity, noting these claims were redundant because the plaintiffs asserted the same claims against the City of Albuquerque. See id. at 2051; id. vol. VII, at 1730-31.

The district court also granted Capt. Gonzales summary judgment as to Mr. Doyon's and Mr. Kisner's § 1983 malicious prosecution claims. Applying the common law elements of malicious prosecution under Pierce v. Gilchrist, 359 F.3d 1279, 1291-97 (10th Cir.2004) ((1) initiation of the original action, (2) termination of the original action in favor of plaintiff; (3) lack of probable cause to support arrest, continued confinement, or prosecution; and (4) malice), the court determined that neither Mr. Doyon nor Mr. Kisner could establish the favorable termination element, because the state dismissed the charges against them only after they completed an alternative sentencing program, and thus the cases did not terminate in their favor.

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However, the court found that Ms. Silva-Banuelos's claim survived summary judgment because the state court dismissed the charges against her. Because in her case the court found evidence of each of the factors of malicious prosecution, as well as evidence of an affirmative link between Capt. Gonzales and her prosecution, it denied summary judgment and qualified immunity to him on this claim.

Finding that Capt. Gonzales “ directly supervised his officers' conduct and issued directives as he followed the progress of the ... protest," and that he “ personally participated in, ordered, and acquiesced in the arrests" of the Arrested Plaintiffs, the district court also denied summary judgment to him on the Arrested Plaintiffs' § 1983 retaliatory prosecution claims. Aplts' App. vol. VIII, at 2009. Similarly, the court determined that the Arrested Plaintiffs could proceed with their state law malicious abuse of process tort claims.

Capt. Gonzales and the Officers appealed, and the Plaintiffs filed a Motion for District Court Certification of Defendants' Interlocutory Appeals as Frivolous. The district court appeared to disagree, reading some of Capt. Gonzales's challenges ( i.e., supervisory liability, retaliatory motive) as being based on the argument that, even under the Plaintiffs' version of facts, he did not violate clearly established law, and thus, according to the district court, these issues appeared to be immediately appealable.


Capt. Gonzales challenges the district court's denial of...

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