Cook v. City of Albuquerque

• Decision Date: 03 November 2022
• Docket Number: CIV 20-00739 DHU-SCY
• Parties: DON COOK, Plaintiff, v. CITY OF ALBUQUERQUE and OFFICER LUKE MCPEEK, Defendants.
• Court: U.S. District Court — District of New Mexico

DON COOK, Plaintiff,
v.
CITY OF ALBUQUERQUE and OFFICER LUKE MCPEEK, Defendants.

CIV No. 20-00739 DHU-SCY

United States District Court, D. New Mexico

November 3, 2022

MEMORANDUM OPINION AND ORDER

THIS MATTER is before the Court on Defendants City of Albuquerque and Luke McPeek's (“Defendants”) Motion for Summary Judgment Requesting Dismissal of Plaintiff's Complaint. (Defs.' Mot., Doc. 20). Having considered the parties' briefing, the record of the case, and applicable law, the Court denies Defendants' Motion for Summary Judgement Requesting Dismissal of Plaintiff's Complaint.

I

FACTUAL BACKGROUND ^[1]

At 3:38 p.m. on February 28, 2019, dispatch notified Albuquerque Police Department (“APD”) officers of an in “progress” pursuit of an armed robbery suspect.^[2] (Def's UMF ¶ 1, Doc. 20). At 4:06 p.m., officers were notified that the suspect was last seen at the Zuni and Louisiana intersection in a white Chevy pickup. (Def's UMF ¶ 2, Doc. 20). Roughly ten minutes later,

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dispatch notified the officers that a witness saw the suspect enter a junkyard and hide under a car. (Def's UMF ¶ 3, Doc. 20). In response, APD Sergeant Rene Barra ordered that a perimeter be set between Dakota St. SE and Zuni Rd. SE; and Cochiti St. SE and Acoma Rd. SE. Once the perimeter was set, Sergeant Barra dispatched APD K-9 and Tactical Units to the area. (Def's UMF ¶ 4, Doc. 20). Responding officers directed neighborhood residents, who were returning to their residences, to park their cars on the west side of the mobile home park. (Pltf's Resp. ¶ E, Doc. 36).

APD K-9 Unit Sergeant Michael Hernandez, Officer Luke McPeek (“Defendant”), and Officer Phetamphone Pholphiboun reported to the scene at approximately 4:28 p.m. (Def's UMF ¶ 5, Doc. 20). Upon arrival, Defendant adjusted the perimeter. (Def's UMF ¶ 9, Doc. 20). He then, in accordance with APD policy, drove around the perimeter at approximately 5:00 p.m. and, using a mounted public address system, gave public service announcements (“PSAs”) directing members of the public to stay inside, keep their windows and doors locked, and contact 911 in the event of an emergency. (Def's UMF ¶ 9, Doc. 20).

Defendant also projected a series of K-9 PSAs directed to the suspect. (Def's UMF ¶ 9, Doc. 20). These warnings encouraged the suspect to make his presence known, and informed him that if he failed to do so, then APD would deploy a police service dog (“PSD”) who would locate and bite him. (Def's UMF ¶12, Doc. 20).

As the evening continued, Sergeant Hernandez received reports on the suspect's whereabouts and appearance. On the suspect's whereabouts, a witness advised Sergeant Hernandez that someone let the suspect enter the tow yard and closed the gate behind him. (Def's UMF ¶ 13, Doc. 20). In response, Sergeant Hernandez relayed over the radio that officers may be dealing with “friendlies”-persons aiding the suspect in his evasion. (Def's UMF ¶ 13, Doc. 20). On the suspect's appearance, a New Mexico state patrol officer notified Sergeant Hernandez that

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the suspect was Felix Apodaca-a Hispanic male in his thirties with short hair and a visible head tattoo. (Def's UMF ¶ 17, Doc 20). Sergeant Hernandez relayed this information via radio and sent a photo from the Motor Vehicle Department of the suspect to the K-9 search teams. (Def's UMF ¶ 18, Doc, 20).

The K-9 search teams unsuccessfully searched within the perimeter between 5:57 p.m. and 7:31 p.m. During that time, the suspect was not located. So, at 7:32 p.m., Sergeant Hernandez broke down the perimeter and the K-9 units left the scene. (Def's UMF ¶ 21-23, Doc. 20).

It was apparent to Plaintiff and other residents who lived within the perimeter, that the officers had left the scene. (Pltf's Resp. ¶ G, Doc. 36). Plaintiff's neighbor, Geraldo Ortega, came to Plaintiff's home around 7:30 p.m. where they both observed that no officers or police cars were anywhere in sight. (Pltf's Resp. ¶ H, Doc. 36). And, because APD cleared the roads, Plaintiff, Mr. Ortega, and other resident neighbors went to the west side of the mobile home park to retrieve their cars. Plaintiff did not observe a single officer while retrieving his car and driving it home. (Pltf's Resp. ¶ I-J, Doc. 36).

Although the perimeter had been removed and the residents had gone back to normal, an officer, who was still present, reported that he saw the suspect proceed from Acoma Rd. SE to Southbound Dakota St. SE. (Def's UMF ¶ 23-24, Doc. 20). In response, APD reestablished the perimeter at approximately 7:50 p.m. and called the K-9 teams back to the scene. (Def's UMF ¶ 23-24, Doc. 20).

When Officer Hernandez returned, the suspect was apparently concealed in a shed in the trailer park to the north of Acoma Rd. SE. (Def's UMF ¶ 25, Doc. 20). The homeowner of the shed where the suspect was located said that the suspect offered him fifty dollars to drive him out of the perimeter. (Def's UMF ¶ 26, Doc. 20). But when the homeowner declined the suspect fled on foot

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Southbound on Dakota St. SE from Acoma Rd. SE toward Zuni Rd. SE and officers lost sight of him near an alley in the middle of the block. (Def's UMF ¶ 25-27, Doc. 20). Officers reported to dispatch that the suspect wore a white shirt and blue jeans, but he also had a black shirt in his hands. (Def's UMF ¶ 28-29, Doc. 20). When the K-9 teams returned, Sergeant Hernandez provided them with this updated description and the suspect's last known direction of travel. (Def's UMF ¶ 28-29, Doc. 20).

A. Deployment of Police Service Dog Gino

By 8:18 p.m., APD had reestablished a perimeter and Defendant provided an additional, general PSA warning about APD activity in the area. (Pltf's Resp. ¶ 2, Doc. 36). Defendant's lapel footage shows that the warning was provided in the general area and neighborhood of Plaintiff's home but does not, by itself, shed light as to whether the warning was sufficient to adequately warn nearby residents of the release of a PSD. Neither Plaintiff, nor his neighbor Geraldo Ortega heard this PSA directing them to stay inside of their homes. (Pltf's Resp. ¶ 2, Doc. 36). It is undisputed that no further PSA or other warnings were given after 8:18 p.m. (Pltf's Resp. ¶ 2, Doc. 36).

Sergeant Hernandez established a plan for two K-9 search teams to search within the perimeter. Officer Pholphiboun led one team and Defendant led the other. (Def's UMF ¶ 32, Doc. 20). Officer James Jacoby served on Defendant's search team positioned at Acoma Rd. SE and Dakota St. SE, and saw a male peek around the corner at 311 Dakota St. SE-Plaintiff's Home. (Def's UMF ¶ 35, Doc. 20). Officer Jacoby ran toward the male, and directed him to make his presence known, show his hands, and stop. Defendant followed Officer Jacoby in a marked police vehicle but no contact was made. (Def's UMF ¶ 36-37, Doc. 20). Defendant then parked his vehicle

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and, after parking, learned Officers Jacoby and Jones had seen movement from behind a bush at 311 Dakota St. SE. (Def's UMF ¶ 40, Doc. 20).

Officers believed the movement in the bushes was probably a cat. (Pltf's Resp. ¶ O, Doc. 36). Regardless, Defendant radioed the information in and advised that it could have been a cat, but that it was also where the suspect was last seen. (Def's UMF ¶ 46, Doc. 20). In response to this information alone, Sergeant Hernandez authorized the deployment of PSD Gino.

At this time, it had been approximately thirty minutes since the last K-9 PSA. Defendant knew there was a possibility that homeowners in the area would be outside of their home. (Pltf's Resp. ¶6, R-T, Doc. 36). And Defendant knew that a PSD would bite any person in his vicinity, including an innocent person, that moved. (Pltf's Resp. ¶ 6, R-T, Doc. 36). Still, Defendant made the decision to deploy a PSD for an off-lead search near Plaintiff's home. (Def's UMF ¶ 47-48, Doc. 20).

Defendant did not give any canine warning prior to releasing PSD Gino. The lack of warning left Plaintiff unaware of PSD Gino's deployment. (Pltf's Resp. ¶ 4, Doc. 36). As Plaintiff was locking the gate to his house, PSD Gino ran onto Plaintiff's property and attacked him. (Pltf's Resp. AA, Doc. 36).

Defendant heard somebody screaming and assumed that PSD Gino had apprehended the suspect. (Def's UMF ¶ 57, Doc. 20). However, as Defendant and other officers approached, they saw Plaintiff defensively holding PSD Gino by the collar. (Pltf's Resp. ¶ 9, Doc. 36). Officers, with guns drawn in the “low ready” position, ordered Plaintiff: “Suspect, show me your hands!” and “Get on the ground!” (Def's UMF ¶ 59, Doc. 20). As Defendant approached, Plaintiff yelled, “I live here,” while he was still holding onto the PSD by the collar. (Def's UMF ¶ 61, Doc. 20). Defendant moved toward the PSD to secure him and prevent him from biting Plaintiff again. (Def's UMF ¶ 63, Doc. 20).

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As he approached, Defendant ordered Plaintiff to let go of the PSD's collar. (Pltf's Resp. ¶ 9, Doc. 36). When Plaintiff complied with Defendant's command, PSD Gino bit Plaintiff for a second time. (Def's UMF ¶ 63, Doc. 20). PSD Gino's bites left deep wounds on both of Plaintiff's legs. (Pltf's Resp. ¶ FF, Doc. 36) APD K-9s are trained to release a person upon hearing the command “Loos”. (Pltf's Resp. ¶ FF, Doc. 36). Defendant did not give the “Loos” command until after Plaintiff had sustained severe injuries to both his legs. (Pltf's Resp. ¶ DD-EE, Doc. 36).

B. Plaintiff's Arrest and Subsequent Search of His Home

Almost immediately after the attack at 8:46 p.m., Defendant announced over the radio that APD had a homeowner who had stepped outside of his house in custody, but that the homeowner did not appear to be the suspect. (Def's UMF ¶ 65, Doc. 20). After making that announcement, Defendant directed officers to place Plaintiff in custody and take him to get medical assistance. (Def's UMF ¶ 66, Doc. 20).

Officer Jacoby patted down Plaintiff before taking him to the Albuquerque Fire...