Dorato v. Smith, No. CIV 14–0365 JB/GBW.

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Writing for the CourtJAMES O. BROWNING, District Judge.
Citation108 F.Supp.3d 1064
Parties Veronica DORATO, as Personal Representative of the Wrongful Death Claim of Daniel Tillison, deceased estate of Daniel Tillison; Bruce Thompson, as guardian ad litem for D.T. and J.T., minor children; Maria Touchet, as guardian ad litem for I.M., a minor child; and Mary Jobe, Plaintiffs, v. Officer Martin SMITH, in his official and individual capacities; John/Jane Doe Supervisor, in his/her official and individual capacities; Albuquerque Police Department; and City of Albuquerque, Defendants.
Decision Date26 May 2015
Docket NumberNo. CIV 14–0365 JB/GBW.

108 F.Supp.3d 1064

Veronica DORATO, as Personal Representative of the Wrongful Death Claim of Daniel Tillison, deceased estate of Daniel Tillison; Bruce Thompson, as guardian ad litem for D.T. and J.T., minor children; Maria Touchet, as guardian ad litem for I.M., a minor child; and Mary Jobe, Plaintiffs,
v.
Officer Martin SMITH, in his official and individual capacities; John/Jane Doe Supervisor, in his/her official and individual capacities; Albuquerque Police Department; and City of Albuquerque, Defendants.

No. CIV 14–0365 JB/GBW.

United States District Court, D. New Mexico.

Filed May 26, 2015.


108 F.Supp.3d 1068

Frances Crockett Carpenter, Hans Peter Erickson, Frances Crockett, LLC, Albuquerque, NM, for Plaintiffs.

Jessica Hernandez, City Attorney, Stephanie M. Griffin, Assistant City Attorney, Albuquerque, NM, for Defendants.

MEMORANDUM OPINION AND AMENDED ORDER1

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Defendant Martin Smith's Motion for Summary Judgment Requesting Dismissal of Plaintiffs' Complaint on Qualified Immunity and Other Grounds, and Memorandum in Support, filed May 12, 2014 (Doc. 11)("Motion"). The Court held a hearing on November 24, 2014. The primary issues

108 F.Supp.3d 1069

are: (i) whether the Court should deny the Motion or permit the Plaintiffs to conduct additional discovery pursuant to rule 56(d) of the Federal Rules of Civil Procedure ; (ii) whether Plaintiffs Mary Jobe, D.T., J.T., and I.M. have standing to assert their loss of consortium claims; (iii) whether the Plaintiffs have standing to assert a seizure claim over the black Sports Utility Vehicle ("SUV") that Daniel Tillison was driving when Defendant Martin Smith shot him; (iv) whether Smith seized Tillison before shooting him; (v) whether Smith had probable cause to arrest Tillison; (vi) whether Smith violated Tillison's rights under the Fourth Amendment to the Constitution of the United States of America by using excessive force; (vii) whether Tillison's rights were clearly established at the time; and (viii) whether the New Mexico Legislature waived Smith's immunity under the New Mexico Tort Claims Act, N.M. Stat. Ann. § 41–4–1 ("NMTCA").

Because additional discovery is not necessary for the Court to decide the Motion, the Court will deny the Plaintiffs' rule 56(d) request. Jobe, D.T., J.T., and I.M. allege only state law claims, and, as such, they have standing. Because it is reasonable to infer that Tillison had a possessory interest in the SUV, the Plaintiffs have standing to argue that Smith seized the SUV. Smith did not, however, seize Tillison or the SUV before shooting Tillison, because Tillison never submitted to Smith's authority. Additionally, Smith had probable cause to arrest Tillison. Smith used excessive force in shooting Tillison, because it is disputed whether he could have believed that Tillison posed a threat of serious bodily harm to himself or to others. At the time of the shooting, it was clearly established that Smith could not use deadly force without a reasonable belief that Tillison posed a threat of serious bodily injury to himself or to others. Finally, because Smith had probable cause to arrest Tillison, the New Mexico Legislature has not waived his immunity under the NMTCA as far as it concerns the Plaintiffs' false arrest and false imprisonment claims, but the Legislature has waived his immunity as it relates to the Plaintiffs' assault and battery claims. Accordingly, the Court will grant the Motion in part and deny it in part. The Court will grant the Motion and dismiss Count I of the Complaint for Civil Rights Violations, filed in state court on March 14, 2014, filed in federal court on April 18, 2014 (Doc. 1–1)("Complaint"), which concerns unlawful seizure. The Court will also dismiss the Plaintiffs' false arrest and false imprisonment claims in Count III of the Complaint. The Court will deny Smith's remaining requests in the Motion, including Smith's request for the Court to dismiss Count II—which concerns excessive force—and to dismiss the Plaintiffs' assault and battery claims in Count III.

FACTUAL BACKGROUND

"On or about March 19, 2012, Officer Martin Smith was wearing his uniform [and his] badge of office, and [he was] patrolling within his marked police vehicle during a day shift in the southeast area command of Albuquerque, NM." Motion ¶ 1, at 1–2 (setting forth this fact). See Affidavit of Martin Smith ¶ 2, at 1, filed May 12, 2014 (Doc. 11–1)("Smith Aff.").2

108 F.Supp.3d 1070
At approximately 1:08 p.m., Officer Smith was dispatched to a call which had been holding. The dispatch entry from the call stated as follows:

31 [SUSPICIOUS] MALE PARKED IN FRT [FRONT] NEAR COMM [COMMUNITY] MAILBOXES—SUBJ [SUBJECT] IN A BLK [BLACK] MITS [MITSUBISHI] MONTERO 568PTX [LICENSE PLATE # ] WAS TRYING TO SELL SOUND SYSTEM—POSS [POSSIBLY] 27–6 [STOLEN] ITEMS—REQ'ING [REQUESTING] 34'S [OFFICERS] CHECK ON SUBJ [SUBJECT]

Motion ¶ 2, at 2 (setting forth this fact)(quoting Computer Aided Dispatch Detailed History of Police Call # P120790534 as of 4/9/2012 10:03:06 at 1, filed May 12, 2014 (Doc. 11–2)("March 19, 2012, CAD"))(alterations in Motion but not in source). See Smith Aff. ¶ 3, at 1; March 19, 2012, CAD at 1.3 "According to the Computer Aided Dispatch (‘CAD’), Officer Smith was the only officer initially dispatched by the dispatcher to respond to this call." Motion ¶ 3, at 2 (setting forth this fact). See Smith Aff. ¶ 4, at 1; March 19, 2012, CAD at 1.4

"After Officer Smith acknowledged that he was going to take the call, the dispatcher

108 F.Supp.3d 1071

relayed to Officer Smith that there was some history with the suspect vehicle and she indicated that she would send information to him." Motion ¶ 4, at 2 (setting forth this fact). See Smith Aff. ¶ 5, at 2; Real Time Recording of Dispatch Call at 2:54–3:15, hand delivered to the Court on May 13, 2014, filed May 12, 2014 (Doc. 12)("Real Time Recording"); Dispatch Recording Transcript at 2:16–20 (transcribed Apr. 21, 2014), filed May 12, 2014 (Doc. 11–3)("Dispatch Tr."); Response at 4 (not disputing this fact). "Officer Smith was then sent a CAD for call # P120730078 which was a BOLO (Be on the Lookout) for a black 2005 Mitsubishi Montero Sport with a New Mexico license plate of 568PTX which was reported stolen." Motion ¶ 5, at 2 (setting forth this fact). See Smith Aff. ¶ 6, at 2; Computer Aided Dispatch Detailed History of Police Call # P120730078 as of 4/9/2012 10:05:23 at 1, filed May 12, 2014 (Doc. 11–4)("March 13, 2012, CAD").5

The registered owner of the 2005 Mitsubishi Montero reported it stolen on March 13, 2015. See Motion ¶ 6, at 2 (setting forth unmodified fact); March 13, 2012, CAD at 1.6

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The vehicle was not listed in [the National Crime Information Center, ("NCIC"),] as being stolen; however, there was no information that the vehicle had been recovered which led Officer Smith to believe that it still had not been located and returned to its owner so Officer Smith advised the dispatcher to alert other officers about this vehicle so that they could search for it as well.

Motion ¶ 7, at 3 (setting forth this fact). See Smith Aff. ¶ 7, at 2; Real Time Recording at 5:02–5:19; Dispatch Tr. at 3:11–17.7 "The dispatcher then broadcast over

108 F.Supp.3d 1073

the air that the vehicle was last seen in the area of 8201 Marquette northeast; she gave a description of the vehicle and advised that it was reported stolen but was not in the system and it was unknown if it was recovered." Motion ¶ 8, at 3 (setting forth this fact). See Smith Aff. ¶ 8, at 2; Real Time Recording at 5:21–6:01; Dispatch Tr. at 3:18–4:5.8

"As Officer Smith approached the vicinity of Texas and Marquette, he began looking for a vehicle matching the description of the call since the dispatcher relayed that the vehicle was in the area of 8201 Marquette northeast near some community mailboxes." Motion ¶ 9, at 3 (setting forth this fact). See Smith Aff. ¶ 9, at 2.9 "As Officer Smith drove westbound on Marquette and approached Texas, he looked around this intersection for the vehicle and did not see it by any community mailboxes so he continued onto westbound Marquette." Motion ¶ 10, at 3 (setting forth this fact). See Smith Aff. ¶ 10, at 2.10

As Officer Smith continued driving westbound on Marquette, just west of Texas, he drove next to a small parking lot where he saw some community mailboxes, and as he was driving he just happened to see a vehicle which matched the description of the suspected stolen vehicle. He also observed the driver moving around inside of the vehicle.

Motion ¶ 11, at 3 (setting forth this fact). See Smith Aff. ¶¶ 10–12, at 2–3; Diagram of Parking Lot, filed May 12, 2014 (Doc. 11–1)(Exhibit A1 to the Smith Aff.)11

108 F.Supp.3d 1074
Because Officer Smith had already partially driven by the parking lot as he was heading westbound on Marquette, the
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  • Parsons v. Velasquez, No. CIV 20-0074 JB/KK
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • July 30, 2021
    ...(ii) investigative stops; and (iii) arrests. See Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir. 2000). See also Dorato v. Smith, 108 F. Supp. 3d 1064, 1118 (D.N.M. 2015)(Browning, J.)(noting that investigative stops are seizures); United States v. Young, 347 F. Supp. 3d 747, 770 (D.N.M. 20......
  • Rawers v. United States, No. CIV 19-0034 JB\CG
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • September 23, 2020
    ...police reports may be admissible as public records under rule 803(8)(A)(ii) of the Federal Rules of Evidence." Dorato v. Smith, 108 F. Supp. 3d 1064, 1071 n.6 (D.N.M. 2015) (Browning, J.)(citing Dortch v. Fowler, 588 F.3d 396, 402 (6th Cir. 2009) ; Foster v. Gen. Motors Corp., 20 F.3d ......
  • United States v. Young, No. CR 17-0694 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 31, 2018
    ...Suspicion. An encounter that is not consensual may nevertheless be justified as an investigative detention. See Dorato v. Smith, 108 F.Supp.3d 1064, 1118 (D.N.M. 2015) (Browning, J.). An investigative detention occurs when an officer stops and briefly detains a person "in order to dete......
  • Gmyr-Maez v. Albuquerque Police Collin Schneider, No. CIV 15-0617 RB/SCY
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • February 11, 2016
    ...on the basis that the documents are excludable as hearsay. (See Doc. 40 at 2–7.) See also Fed. R. Evid. 801(c) ; Dorato v. Smith , 108 F.Supp.3d 1064, 1071 n. 6 (D.N.M.2015) (quoting United States v. Jimenez , 275 Fed.Appx. 433, 438 (5th Cir.2008) (“Police reports are generally excludable a......
  • Request a trial to view additional results
23 cases
  • Parsons v. Velasquez, No. CIV 20-0074 JB/KK
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • July 30, 2021
    ...(ii) investigative stops; and (iii) arrests. See Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir. 2000). See also Dorato v. Smith, 108 F. Supp. 3d 1064, 1118 (D.N.M. 2015)(Browning, J.)(noting that investigative stops are seizures); United States v. Young, 347 F. Supp. 3d 747, 770 (D.N.M. 20......
  • Rawers v. United States, No. CIV 19-0034 JB\CG
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • September 23, 2020
    ...police reports may be admissible as public records under rule 803(8)(A)(ii) of the Federal Rules of Evidence." Dorato v. Smith, 108 F. Supp. 3d 1064, 1071 n.6 (D.N.M. 2015) (Browning, J.)(citing Dortch v. Fowler, 588 F.3d 396, 402 (6th Cir. 2009) ; Foster v. Gen. Motors Corp., 20 F.3d ......
  • United States v. Young, No. CR 17-0694 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 31, 2018
    ...Suspicion. An encounter that is not consensual may nevertheless be justified as an investigative detention. See Dorato v. Smith, 108 F.Supp.3d 1064, 1118 (D.N.M. 2015) (Browning, J.). An investigative detention occurs when an officer stops and briefly detains a person "in order to dete......
  • Gmyr-Maez v. Albuquerque Police Collin Schneider, No. CIV 15-0617 RB/SCY
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • February 11, 2016
    ...on the basis that the documents are excludable as hearsay. (See Doc. 40 at 2–7.) See also Fed. R. Evid. 801(c) ; Dorato v. Smith , 108 F.Supp.3d 1064, 1071 n. 6 (D.N.M.2015) (quoting United States v. Jimenez , 275 Fed.Appx. 433, 438 (5th Cir.2008) (“Police reports are generally excludable a......
  • Request a trial to view additional results

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