HARAPAT v. Vigil

• Decision Date: 13 October 2009
• Docket Number: No. CIV 08-0512 JB/LFG.,CIV 08-0512 JB/LFG.
• Citation: 676 F. Supp.2d 1250
• Parties: Dale HARAPAT, Plaintiff, v. Benjie VIGIL, Phil Esquibel, and Tony Valdez, in their individual capacities, and Richard Flores, in his official capacity, Defendants.
• Court: U.S. District Court — District of New Mexico

676 F.Supp.2d 1250

Dale HARAPAT, Plaintiff, v. Benjie VIGIL, Phil Esquibel, and Tony Valdez, in their individual capacities, and Richard Flores, in his official capacity, Defendants.

No. CIV 08-0512 JB/LFG.

United States District Court, D. New Mexico.

October 13, 2009.

Adam S. Baker and Alan H. Maestas, Maestas & Boothby, P.C., Taos, NM, for Plaintiff.

Carlos M. Quinones, Quinones Law Firm, Santa Fe, NM, for Defendant, Benjie Vigil.

Luis E. Robles, Rodney L. Gabaldon, Robles, Rael & Anaya, P.C., Albuquerque, NM, for Defendants, Phil Esquibel, Tony Valdez, Richard Flores.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Defendant Vigil's Motion for Partial Summary Judgment on Basis of Qualified Immunity and Other Grounds, and Supporting Memorandum, filed March 23, 2009 (Doc. 43). The court held a hearing on June 26, 2009. The primary issue is whether Defendant Sheriff Benjie Vigil enjoys qualified immunity for the actions he took on February 15, 2007. Resolution of the issue of qualified immunity turns on four sub-issues: (i) whether Vigil conducted an unlawful arrest of Plaintiff Dale Harapat in response to Harapat's protest in front of the District Attorney's Office; (ii) whether Vigil used excessive force in arresting Harapat; (iii) whether Vigil acted with malice in his arrest and is liable for malicious prosecution; and (iv) whether Vigil engaged in unlawful retaliation against Harapat for his exercise of his First Amendment rights. Because the Court finds that there are genuine issues of material fact regarding both the facts leading up to the arrest and the arrest itself that preclude the dismissal of Harapat's claims, the Court will deny Vigil qualified immunity and deny the motion for partial summary judgment.

FACTUAL BACKGROUND

In his statement of undisputed material facts, which Harapat largely disputes, Vigil emphasizes that these facts are undisputed for purposes of this motion only. See Motion at 3 n. 1. Vigil also had no involvement in the events referenced in Harapat's Complaint arising out of events taking place on November 19, 2006. See Affidavit of Defendant Benjie Vigil ¶ 2, at 1 (executed March 17, 2009), filed Mar. 23, 2009 (Doc. 43-2)("Vigil Aff.").

Harapat attended a hearing in state district court in Las Vegas, New Mexico on the morning of February 15, 2007. See Affidavit of Dale Harapat ¶ 2, at 4, filed May 8, 2009 (Doc. 50-2) ("Harapat Aff."). After the hearing, he had breakfast with an acquaintance, Gilbert Bustos, and they decided to protest outside the District Attorney's Office that morning. See id. ¶ 3, at 4. Harapat and Bustos began protesting at about 10:00 a.m. See id. ¶ 4, at 4.

At the beginning of their protest, Harapat noticed that Bustos was carrying a handwritten sign stating something to the effect that one of the prosecutors was a "semen swallower." He told Bustos that the sign was inappropriate and did not see Bustos displaying that sign again. See Harapat Aff. ¶ 4, at 4-5.

Throughout the protest that day, Harapat carried a sign stating: "DA Flores is guilty of selective prosecution." See Harapat Aff. ¶ 5, at 5. His friend from Albuquerque, Lee Kittell, with whom Harapat had made plans to go to lunch after protesting that morning, joined Harapat and Bustos in their protest. See id. ¶ 6, at 5. Harapat gave Kittell a sign stating: "The DA and LV police do not act in the best interests of children." Harapat Aff. ¶ 7, at 5. At no time did Kittell, Bustos, or Harapat block the entrance of the District Attorney's Office, nor did they interfere with anyone going in or out of the building. See id. ¶ 9, at 5.

A short time after their protest began, Tony Valdez, Special Program Coordinator for the District Attorney's Office, came outside with what appeared to be a video camera and held it up directed towards the protest.¹ See id. ¶ 8, at 5; Plaintiff's Response to Defendant's Motion for Partial Summary Judgment Based on Qualified Immunity at 1, filed May 7, 2009 (Doc. 49) ("Pl. Response"). Harapat contends that, before Valdez came outside, the others and he had been quiet, and were not shouting or chanting slogans, nor did they prevent others from walking along the sidewalk or interfere with others in any way. See Harapat Aff. ¶ 11, at 5. When Valdez came outside, Kittell was standing on the sidewalk to the left of the entrance of the District Attorney's Office, and Harapat was a few feet away in the gravel on the opposite side of the sidewalk from the District Attorney's Office. See Harapat Aff. ¶ 12, at 5; Pl. Response, Exhibit 6, filed May 8, 2009 (Doc. 50-5). Harapat took a picture of Valdez filming with his cellular telephone camera. See Harapat Aff. ¶ 13 at 6; see also Pl. Response Exhibit 4, filed May 8, 2009 (Doc. 50-5).

Valdez approached Bustos and the two men had an altercation, in which Valdez bumped into Bustos and blocked him from moving around him. See Harapat Aff. ¶¶ 14-15, at 6; Pl. Response Exhibit 5 at 2 filed May 8, 2009 (Doc. 50-5). Phil Esquibel, a deputy sheriff employed by the District Attorney's Office who is assigned to security detail, then came out of the District Attorney's Office to lend aid to Valdez. See Harapat Aff. ¶ 16, at 6. Harapat explains: "He and Mr. Valdez made it clear they wanted us to leave." Id.

Inside the District Attorney's Office, Dolores Turner, an employee, witnessed Bustos and Vargas outside yelling at each other and went to tell Defendant Benjie Vigil, the sheriff of San Miguel County, New Mexico, who was at the District Attorney's Office on unrelated business, that he was needed outside. See Deposition of Dolores Turner 24:8-26:21, at 2-3 (taken April 21, 2009), filed May 8, 2009 (Doc. 50-2). Vigil went outside the building and saw three males carrying signs.² See Vigil Aff. ¶ 4, at 1. Vigil approached Harapat and the other two men, and instructed the men to go across the street.³ See Harapat Aff. ¶ 17, at 6. Harapat contends that after Vigil instructed Bustos, Kittell, and Harapat to move across the street, Kittell said something along the lines of "we were just exercising our First Amendment rights." Id. ¶ 19, at 7. See Kittell Depo. 58:20-25, at 5 ("Vigil told us we couldn't be there. We had to leave. We politely said, `It's a public building, it's a public sidewalk, we're exercising our First Amendment right.'"). Harapat describes Vigil as becoming red in the face and showing visible anger. See Harapat Aff. ¶ 19, at 7. Harapat told Vigil that they had been at the District Attorney's Office to protest on prior occasions. See id. Vigil again instructed Harapat and the other men: "If you don't go across the street, I am going to arrest you." Kittell Depo. 59:2-4. Harapat contends that the location to which Vigil wanted Harapat, Bustos, and Kittell to move was a block of private homes, and was not as open to the public's view. See Harapat Aff. ¶ 18, at 3.

When Harapat and the other two men did not immediately relocate, Vigil placed the men under arrest. See id. Harapat was handcuffed behind his back without resistence.⁴ See Harapat Aff. ¶¶ 20-21, at 7. Vigil escorted Harapat to his vehicle. See id. ¶ 24, at 7.⁵ Harapat informed Vigil that the handcuffs were hurting his wrists. See id. Harapat states that Vigil responded by pushing him into the vehicle, causing Harapat's legs to strike the truck because it was too high for him to step into and because he was unable to brace himself with his hands handcuffed behind him. See id. Harapat also explains that he had trouble breathing in the vehicle, because the windows were rolled up and he was suffering from sinus trouble and stress. See id. ¶ 25, at 7. Harapat states that he informed Vigil that his wrists hurt from the handcuffs and that he could not breathe, but that Vigil did not respond. See id. ¶ 26, at 8. The three men were transported to the San Miguel County Detention Center, where Vigil consulted with the District Attorney's Office by telephone and then filed an Amended Criminal Complaint in Magistrate Court against Harapat, charging him with public nuisance, contrary to NMSA § 30-8-1, disorderly conduct, contrary to NMSA § 30-20-1(A), and unlawful assembly, contrary to NMSA § 30-20-3. See Motion, Exhibit B, at 1, filed May 23, 2009 (Doc. 43-3). Bustos and Kittell were charged with the same offenses. See Motion, Exhibit D, at 1, filed May 23, 2009 (Doc. 43-5); Exhibit F, at 1, filed May 23, 2009 (Doc. 43-7). Vigil took photographs of the signs that were found at the scene of the protest. See Motion, Exhibit H, at 1-2, filed Mar. 23, 2009 (Doc. 43-9).

From the detention center, Harapat was transported to the hospital, because of the pain in his wrists and leg, and because of the trouble he experienced while breathing. See Harapat Aff. ¶ 28, at 8. As a result of the handcuffs, Harapat sustained redness and marks around both wrists, and redness and bruising on his upper left leg. See id. ¶ 29, at 8. Harapat contends that, to this day, he has limited flexibility and pain in his right wrist. See id.

PROCEDURAL BACKGROUND

Harapat filed his Amended Complaint on December 18, 2008 (Doc. 29) ("Amended Complaint"), asserting violations of federal and state law against Vigil stemming from Harapat's arrest on February 15, 2007. Harapat asserts claims against Vigil pursuant to 42 U.S.C. § 1983 for unlawful arrest, excessive force, unlawful retaliation, and malicious prosecution under the Fourth and Fourteenth Amendments. In Count I, Harapat alleges unlawful arrest under § 1983 against various Defendants, including Vigil. See Amended Complaint ¶¶ 17-20, at 4. In Count II, Harapat alleges excessive force against Vigil and other Defendants under § 1983. See id. ¶¶ 21-25, at 5. In Count III, Harapat alleges unlawful retaliation pursuant to 42 U.S.C. § 1983 against Vigil and other Defendants. See id. ¶¶ 26-30, at 5-6. Count IV is a claim for malicious prosecution under § 1983 against Vigil. See id. ¶¶ 31-36, at 6...