Cordova v. City of Albuquerque, No. 14–2083.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtTYMKOVICH, Chief Judge.
Citation816 F.3d 645
Docket NumberNo. 14–2083.
Decision Date08 March 2016
Parties Stephan CORDOVA, Plaintiff–Appellant, v. CITY OF ALBUQUERQUE; Ray Schultz, Chief; Carlos Argueta; Aaron Heyman; Matthew Hoisington; Kevin Kees; James Fox; and Kenneth Neiberger, Defendants–Appellees.

816 F.3d 645

Stephan CORDOVA, Plaintiff–Appellant,
v.
CITY OF ALBUQUERQUE; Ray Schultz, Chief; Carlos Argueta; Aaron Heyman; Matthew Hoisington; Kevin Kees; James Fox; and Kenneth Neiberger, Defendants–Appellees.

No. 14–2083.

United States Court of Appeals, Tenth Circuit.

March 8, 2016.


816 F.3d 648

Joseph P. Kennedy (Shannon L. Kennedy with him on the briefs), Kennedy Kennedy & Ives, LLC, Albuquerque, NM, for Appellant.

David A. Roman, Robles, Rael & Anaya, P.C., Albuquerque, NM, for Appellees.

816 F.3d 649

Before TYMKOVICH, Chief Judge, EBEL, and GORSUCH, Circuit Judges.

TYMKOVICH, Chief Judge.

Three Albuquerque Police Department officers shot Stephan Cordova after he raised a gun in their direction. Cordova survived and was charged with assault, although the charges were later dismissed on speedy trial grounds. Cordova then brought this action under 42 U.S.C. § 1983, claiming primarily (1) that the charges of assault were brought in bad faith; (2) that the police unreasonably prevented interaction with his family when he was in a hospital recovering from his wounds ; and (3) the police used excessive force by firing on him without an adequate warning. The district court allowed only the Fourth Amendment excessive-force claims to go to trial, where a jury returned a verdict for the officers.

We find no error in the district court's conclusions. As we explain below: (1) under the facts of this case, the dismissal of the assault charges under the Speedy Trial Act is not indicative of Cordova's innocence and thus does not qualify as a favorable termination for purposes of a malicious prosecution cause of action; (2) Cordova's familial-association claim fails because the prohibition on visitors was not intended to interfere with a protected relationship and was reasonably related to a legitimate government purpose; and (3) as to the excessive force claim, Cordova was adequately warned to drop a weapon he was wielding at the time of the shooting, and the district court correctly instructed the jury as to the applicable law.

Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.

I. Background

Stephan Cordova became ill at his work site. He called his mother for a lift to his brother's house, where he was living. After his mother left him, his sister-in-law checked on him and found him seriously ill. She called an ambulance, believing that Cordova was having a heart attack. Cordova refused her offer to drive him to the hospital and told her that he would not get in the ambulance. When she told him that he had to go, he replied that he did not have to go anywhere because he had a gun.

When paramedics arrived, the sister-in-law told them that he was refusing treatment and that he had a gun. The Albuquerque Police were called, and officers Fox, Hoisington, Neiberger, and Kees responded. The officers quickly learned of his threats and instructed family members to leave the house. Officer Fox was also told about Cordova's physical condition and that he was in the middle of a difficult divorce. Officer Fox thought, at that point, Cordova might be suicidal.

Cordova eventually exited the house. The officers approached him and asked him to stop and show his hands before moving further. Cordova began walking backward down the street and Officer Kees noticed that Cordova had a gun in his waistband. According to the officers, he kept touching the gun at his waist, despite their repeated warnings to keep his hand away.

Cordova then drew the gun slowly, and held it at his waist, pointing down. Sergeant Fox then ordered Cordova to drop the gun. The three officers then claim to have simultaneously observed Cordova raising the gun in their direction, and all three fired, hitting Cordova eight times. After the shooting, Cordova was taken to a hospital for emergency surgery. During recovery, officers restricted access to his hospital room until he was able to speak with investigators.

816 F.3d 650

Because of his injuries, Cordova was unable to communicate for five days. When he was finally well enough to speak with police, he invoked his right to counsel. The police lifted the access restriction but did not intend for him to be released from the hospital. The police also charged him with assault and an arrest warrant was issued by a state court.

While still in the hospital, Cordova filed a motion to dismiss the complaint, quash the warrant, and to waive his first appearance. A court later set bond, and in an order setting conditions of release, the judge handwrote "D to remain in custody at [the hospital] until further notice." App. at 691. Despite the order, the next day the hospital discharged Cordova and detectives transferred him to a county detention center.

Cordova was later indicted, but moved to dismiss the indictment on the grounds that he had not been given an opportunity to present exculpatory evidence to the grand jury. The state court granted this motion to dismiss. Cordova was then re-indicted, and after a two-year delay again moved to dismiss the indictment on the grounds that the trial court had given an erroneous jury instruction. Undeterred, the state again indicted Cordova. He moved to dismiss this indictment on speedy trial grounds, given that nearly five years had passed from the filing of the initial criminal complaint. Over the state's objection, the court granted the motion.

Cordova then brought this action under 42 U.S.C. § 1983 alleging a variety of federal constitutional violations, including excessive force, malicious prosecution and interference with his right to associate with his family.

II. Analysis

Cordova alleges the district court erred in granting summary judgment on his § 1983 malicious prosecution, familial association, and due process claims. For his excessive force claims, he contends the district court should have entered judgment in his favor or, at least, allowed a new trial because of a variety of trial and instructional errors.1

We discuss each of Cordova's claims in turn.

A. Malicious Prosecution

The district court granted summary judgment on Cordova's malicious-prosecution claim because he failed to establish, as a matter of law, that the charges against him were terminated in his favor. He challenges the district court's conclusion, contending that the dismissal of charges against him under New Mexico's Speedy Trial Act constituted a favorable termination.

To prevail on a § 1983 malicious-prosecution claim, a plaintiff must show: (1) the defendant caused the plaintiff's confinement or prosecution; (2) the original action terminated in the plaintiff's favor; (3) there was no probable cause to confine or prosecute the plaintiff; (4) malice; and (5) damages. Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir.2008). It is the plaintiff's burden to show that the termination was favorable. Id. at 803. Although the dismissal of the assault charges certainly worked to Cordova's benefit, we agree with the district court that it was not

816 F.3d 651

a favorable termination under prevailing law.

We most recently analyzed the contours of the favorable termination requirement in Wilkins. There, the prosecutor had dismissed the underlying charges by filing a so-called nolle prosequi —a voluntary dismissal of charges. Id. at 802. We found the mere fact that a prosecutor had chosen to abandon a case was insufficient to show favorable termination. Instead, the termination must in some way "indicate the innocence of the accused." Id. at 803 (quoting Restatement (Second) of Torts § 660 cmt. a (1977)). When it is unclear whether the termination indicates innocence, we "look to the stated reasons for the dismissal as well as to the circumstances surrounding it" and determine "whether the failure to proceed implies a lack of reasonable grounds for the prosecution." Id. (quoting Murphy v. Lynn, 118 F.3d 938, 948 (2d Cir.1997) ). Or, as a leading treatise put it, the abandonment of prosecution that "does not touch the merits ... leaves the accused without a favorable termination." Dan B. Dobbs et al., Dobb's Law of Torts § 590 (2d ed.2015).

In this case, Cordova's assault charges were dismissed on speedy trial grounds after a series of procedural blunders by the prosecution that resulted in three failed indictments. The original indictment was dismissed because the state failed to give Cordova the opportunity to testify before the grand jury. The state then obtained a second indictment, but Cordova obtained a dismissal two years later because the grand jury was never instructed on a necessary element of the charges. After the grand jury returned a third indictment, the trial court dismissed the action with prejudice on speedy trial grounds over the state's objection, reasoning that Cordova had been prejudiced by the repeated delays. This whole process took approximately five years.

As an initial matter, Cordova has not presented any argument that the length of the process was attributable to intentional delay or the prosecution's misgivings about the...

To continue reading

Request your trial
106 practice notes
  • Jones v. City of Hattiesburg, CIVIL ACTION NO. 2:18-cv-84-TBM-MTP
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • June 28, 2021
    ...comparative negligence and contribution are inapplicable to federal constitutional rights violations. See Cordova v. City of Albuquerque, 816 F.3d 645, 659 (10th Cir. 2016); McHugh v. Olympia Ent., Inc., 37 F. App'x 730, 736-37 (6th Cir. 2002); Nichols v. Knox Cnty., Tennessee, No. 3:11-cv-......
  • Bledsoe v. Bd. of Cnty. Comm'rs of the Cnty. of Jefferson, Case No. 16-2296-DDC-JPO
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • November 18, 2020
    ...by Judge Gorsuch, where he opined that he would apply Parratt to substantive due process claims. See Cordova v. City of Albuquerque , 816 F.3d 645, 661–662 (10th Cir. 2016) (Gorsuch, J., concurring) (opining he would not find a Fourteenth Amendment malicious prosecution claim—whether proced......
  • Payne v. Wilder, No. CIV 16-0312 JB/GJF
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 18, 2017
    ...involved.'" MSJ at 9 (quoting Martinez v. Mafchir, 35 F.3d 1486, 1490 (10th Cir. 1994)). Wilder then cites to Cordova v. Albuquerque, 816 F.3d 645 (10th Cir. 2015), which provides that the "Plaintiff must prove this balance favors her constitutional right and that the state official "intend......
  • Moya v. Garcia, No. 17-2037
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • July 10, 2018
    ...'clearly established statutory or constitutional rights of which a reasonable person would have known.' " Cordova v. City of Albuquerque , 816 F.3d 645, 655 (10th Cir. 2016) (quoting Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). To avoid qualified immunit......
  • Request a trial to view additional results
105 cases
  • Jones v. City of Hattiesburg, CIVIL ACTION NO. 2:18-cv-84-TBM-MTP
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • June 28, 2021
    ...comparative negligence and contribution are inapplicable to federal constitutional rights violations. See Cordova v. City of Albuquerque, 816 F.3d 645, 659 (10th Cir. 2016); McHugh v. Olympia Ent., Inc., 37 F. App'x 730, 736-37 (6th Cir. 2002); Nichols v. Knox Cnty., Tennessee, No. 3:11-cv-......
  • Bledsoe v. Bd. of Cnty. Comm'rs of the Cnty. of Jefferson, Case No. 16-2296-DDC-JPO
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • November 18, 2020
    ...by Judge Gorsuch, where he opined that he would apply Parratt to substantive due process claims. See Cordova v. City of Albuquerque , 816 F.3d 645, 661–662 (10th Cir. 2016) (Gorsuch, J., concurring) (opining he would not find a Fourteenth Amendment malicious prosecution claim—whether proced......
  • Payne v. Wilder, No. CIV 16-0312 JB/GJF
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 18, 2017
    ...involved.'" MSJ at 9 (quoting Martinez v. Mafchir, 35 F.3d 1486, 1490 (10th Cir. 1994)). Wilder then cites to Cordova v. Albuquerque, 816 F.3d 645 (10th Cir. 2015), which provides that the "Plaintiff must prove this balance favors her constitutional right and that the state official "intend......
  • Moya v. Garcia, No. 17-2037
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • July 10, 2018
    ...'clearly established statutory or constitutional rights of which a reasonable person would have known.' " Cordova v. City of Albuquerque , 816 F.3d 645, 655 (10th Cir. 2016) (quoting Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). To avoid qualified immunit......
  • Request a trial to view additional results
1 books & journal articles
  • Originalism: Can Theory and Supreme Court Practice Be Reconciled?
    • United States
    • The Georgetown Journal of Law & Public Policy Nbr. 19-1, January 2021
    • January 1, 2021
    ...and Laws, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3, 38 (Amy Gutmann ed., 1997). 25. Cordova v. City of Albuquerque, 816 F.3d 645, 661 (10th Cir. 2016). 26. Gregory E. Maggs, Which Original Meaning of the Constitution Matters to Justice Thomas?, 4 NYU J. L. LIBERTY 494, 516 (......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT