Fancher v. Barrientos

• Decision Date: 12 July 2013
• Docket Number: No. 12–2114.,12–2114.
• Citation: 723 F.3d 1191
• Parties: Lucia FANCHER, individually and as personal representative of the estate of Nick Dominguez, Plaintiff–Appellee, v. Johnny BARRIENTOS, in his individual and official capacity; Sheriff Todd Garrison, County Of Doña Ana, Defendants–Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

723 F.3d 1191

Lucia FANCHER, individually and as personal representative of the estate of Nick Dominguez, Plaintiff–Appellee,

v.Johnny BARRIENTOS, in his individual and official capacity; Sheriff Todd Garrison, County Of Doña Ana, Defendants–Appellants.

No. 12–2114.

United States Court of Appeals,Tenth Circuit.

July 12, 2013.

Kevin M. Brown (Desiree D. Gurule and Elizabeth V. Friedenstein with him on the briefs), Brown Law Firm, Albuquerque, NM, for Defendants–Appellants.

Mark Fine, Fine Law Firm, Albuquerque, NM, for Plaintiff–Appellee.

Before LUCERO, MURPHY, and MATHESON, Circuit Judges.

MURPHY, Circuit Judge.

I. Introduction

Defendant Johnny Barrientos, a deputy of the Doña Ana County Sheriff's Department, appeals the district court's denial of his motion for summary judgment in a 28 U.S.C. § 1983 action brought by Lucia Fancher, individually and on behalf of the estate of her son, Nick Dominguez. Fancher alleges Barrientos used excessive force in violation of the Fourth Amendment when he shot Dominguez seven times following a confrontation in Mesquite, New Mexico. Dominguez died as a result of one or more gunshot wounds. Barrientos asserts he is entitled to qualified immunity because his use of deadly force was objectively reasonable and did not violate clearly established law. The district court granted Barrientos's motion for summary judgment to the extent Fancher's claim arose from the firing of the initial shot, but denied the motion to the extent the claim arose from the firing of the subsequent six shots.

On appeal, Barrientos makes three arguments. First, he asserts the district court erred in analyzing the second through seventh shots separately from the first shot. Next, he argues the district court did not sufficiently consider the risks posed to third parties in analyzing the reasonableness of shots two through seven. Finally, he argues the law was not clearly established that his actions violated the Fourth Amendment. This court lacks jurisdiction to consider the first two arguments, and is unpersuaded by the third. Thus, exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms the denial of summary judgment by the district court.¹

II. Background

Because, when reviewing the denial of a summary judgment motion asserting qualified immunity, we lack jurisdiction to review the district court's conclusions as to what facts the plaintiffs may be able to prove at trial, Fogarty v. Gallegos, 523 F.3d 1147, 1154 (10th Cir.2008); see also infra Part III.A., we restate the district court's account of the relevant factual background here:

On March 29, 2010, at approximately 5:41 p.m., Deputy Barrientos responded to a reported theft of two 20–packs of bottled Budweiser beer from the Mesquite Mercantile in Mesquite, New Mexico. There was no report that the suspects were armed or threatening. Deputy Barrientos was on duty, in full uniform with his badge displayed, and driving a marked patrol vehicle. Defendant Barrientos was issued two patrol rifles, but his squad car was equipped with only one lock for one of the rifles. He had the assault rifle in the front seat of his car....

Upon arrival at the Mercantile, Deputy Barrientos interviewed a female clerk who told him that the manager in the back office had a security camera video of the theft. Deputy Barrientos reviewed the video, which showed a male in a white shirt and blue jeans at the counter, and a second male wearing a black jacket and black pants moving quickly across the screen. The clerk told Deputy Barrientos that the individual at the counter was named Michael and might live in a trailer near Highway 192.

Deputy Barrientos began searching the property outside the Mercantile when police dispatch advised him at approximately 6:02 p.m. of a trespass involving two vehicles and several subjects drinking at the Helena Chemical plant, across the road from the Mercantile. While proceeding to the plant, Deputy Barrientos observed a male wearing a white shirt and blue jeans riding a bicycle down an alley. Deputy Barrientos stopped the bicyclist for questioning at approximately 6:06 p.m. Deputy Barrientos identified the bicyclist as an older man named Carlos Ceniceros, who informed him that he knew where the individuals who stole the beer were and that they were near a red car.

As Deputy Barrientos interviewed Mr. Ceniceros, a man from a nearby house approached them and stated that the suspects were in the area of an irrigation canal by a tree. Deputy Barrientos began searching for the suspects, driving his patrol vehicle northbound on the east side of a large irrigation canal accessible from Highway 192. He spotted a red car turn onto the west side of the canal driving northbound. Believing that the red car was associated with the theft at the Mercantile, Deputy Barrientos activated his emergency equipment and initiated a traffic stop at approximately 6:18 p.m. The red car yielded at a tree near the intersection of the large irrigation canal and a smaller canal.

Deputy Barrientos's practice and training are to leave the patrol vehicle running with the emergency equipment engaged during traffic stops. The window was down to facilitate his visual search of the area. The squad car was parked facing north on a clearing of hard dirt.

Deputy Barrientos approached and questioned the driver who remained in the car. Because the driver was a man in his late fifties and the sole occupant of the vehicle, Deputy Barrientos concluded that he was not involved in the theft and released him.

Immediately after the red car drove off, Deputy Barrientos observed Mr. Ceniceros seated on the ground across the large canal to the northeast. Deputy Barrientos had not moved from where he had been standing beside the driver's door of the red car. He walked toward Mr. Ceniceros to question him further about the suspects. There was a water pipe spanning the large canal which allowed foot traffic to move from one side to the other. When asked about the suspects' location, Mr. Ceniceros said he did not know, but indicated behind Deputy Barrientos with his eyes and by nodding.

Just then, Deputy Barrientos heard a noise behind him and turned around to see that a beer bottle had landed near him. The bottle landed between 10 to 15 feet away from him. In his experience, a bottle can be used as a weapon. He was still unable to see the suspects.

Because the thrown beer bottle indicated someone was hiding and he did not know who it was or what was going on, Deputy Barrientos drew his weapon and walked toward a large irrigation pump in order to see behind it. Using a tactical maneuver that he was trained to use, Deputy Barrientos moved around the pump in an attempt to expose the suspects while maintaining a safe distance. Deputy Barrientos saw two young men and a young woman hiding in a depression on the far side of a steel I-beam that served as a foundation for the pump. Deputy Barrientos recognized one of the young men who wore a white shirt and blue jeans, later identified as Michael Herrera, from the Mercantile security video. Deputy Barrientos also recognized his own cousin, Valerie Gonzalez, and was concerned that she might try to harm him because she had gang affiliations and had previously made negative comments about the fact that Deputy Barrientos was a law enforcement officer. The second young man, wearing black pants without a shirt, was later identified as Nick Dominguez. Nick Dominguez was 17 years of age at the time.

Deputy Barrientos notified dispatch at 6:21 p.m. that he had three suspects at gun point. He then commanded the subjects to show their hands. Mr. Herrera complied while remaining on his knees. Ms. Gonzalez also complied. Mr. Dominguez, however, remained crouched on the ground concealing his hands, which concerned Deputy Barrientos because he feared that the suspects could have weapons concealed in their clothing. Mr. Dominguez's failure to comply prevented Deputy Barrientos from frisking the suspects to this point.

Deputy Barrientos commanded Ms. Gonzalez to step over the I-beam and lie down, and she complied. Mr. Herrera remained on his knees and kept his hands raised. Deputy Barrientos ordered Mr. Dominguez to move closer to him and to step over the I-beam and lie down next to Ms. Gonzalez. After refusing to comply with several commands, Mr. Dominguez stepped over the I-beam but did not lie down as instructed. Instead, Mr. Dominguez moved toward Deputy Barrientos in three motions, asking “right here?” each time. Mr. Dominguez moved within a couple of feet of Deputy Barrientos. Deputy Barrientos again ordered Mr. Dominguez to lie down, but instead he dropped to one knee and then suddenly lunged at Deputy Barrientos, grabbing his duty weapon with both hands.

As the two men struggled, Mr. Dominguez yelled to the other suspects to run away. Deputy Barrientos again commanded Mr. Dominguez to release his weapon and get on the ground but he did not comply. During the struggle, Ms. Gonzalez remained prone on the ground with her head and shoulders toward Deputy Barrientos and Mr. Dominguez, while Mr. Herrera remained on his knees. Both suspects were just a few feet away from the struggle.

The men fell to their knees with Mr. Dominguez on Deputy Barrientos's left side. The weapon discharged into the ground and malfunctioned. The discharge concerned Deputy Barrientos because the bullet could have struck himself, Ms. Gonzalez, or Mr. Herrera, who were both just a few feet away; Mr. Ceniceros, who was a few yards away; or an occupant at one of the residences across the field. After the weapon discharged, Mr. Dominguez continued trying to take it away from Deputy Barrientos. Deputy Barrientos forced the weapon's barrel into the dirt and then drew his taser.

Deputy Barrientos tasered Mr. Dominguez in the back. Although the taser deployed, it did not work. Mr. Dominguez then let go of the gun, pushed free from the struggle, and fled directly toward...