Herrera v. City of Albuquerque

• Court: U.S. Court of Appeals — Tenth Circuit
• Writing for the Court: Briscoe
• Citation: Herrera v. City of Albuquerque, 589 F.3d 1064 (10th Cir. 2009)
• Decision Date: 14 December 2009
• Docket Number: No. 09-2010.,09-2010.
• Parties: Desiree HERRERA, Plaintiff-Appellant, v. CITY OF ALBUQUERQUE; Officer M.L. O'Brien, in her individual capacity; John Does I through V, in their individual capacities, Defendants-Appellees.

589 F.3d 1064

Desiree HERRERA, Plaintiff-Appellant, v. CITY OF ALBUQUERQUE; Officer M.L. O'Brien, in her individual capacity; John Does I through V, in their individual capacities, Defendants-Appellees.

No. 09-2010.

United States Court of Appeals, Tenth Circuit.

December 14, 2009.

David Meilleur, (Nancy L. Simmons, Law Offices of Nancy L. Simmons, P.C., Albuquerque, New Mexico, on the briefs), Albuquerque, NM, for Plaintiff-Appellant.

Erika E. Anderson of Robles, Rael & Anaya, P.C., Albuquerque, NM, for Defendants-Appellees Officer M.L. O'Brien and City of Albuquerque.

Before BRISCOE, McKAY, and HARTZ, Circuit Judges.

BRISCOE, Circuit Judge.

Plaintiff Desiree Herrera appeals from the district court's grant of qualified immunity in favor of defendant Maureen O'Brien, and from the district court's entry of final judgment in favor of defendants on her claims pursuant to 42 U.S.C. § 1983. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I

Factual background

On October 5, 2005, Albuquerque police officer Maureen O'Brien responded to a call of domestic violence at Herrera's apartment. When O'Brien arrived at the apartment, she encountered Herrera, who at the time was sixteen years old. Herrera stated that she and her boyfriend, Tomas Jaramillo, had been arguing and that Jaramillo struck her. Herrera further stated that Jaramillo left the apartment after the incident, leaving her and her then-three-year-old son, who was asleep in the bedroom, as the only occupants. Herrera also admitted that she had been drinking alcohol.

O'Brien walked through the apartment and observed that it was "filthy," with "razors, food, cigarette butts, and clothes on the floor." App. at 46. O'Brien noticed that "the bathtub was full of black water and had a foul odor." Id. O'Brien also observed "a vicious pit bull chained up in the backyard that had access into the kitchen" of the apartment. Id. at 58. When O'Brien commented on the condition of the apartment, Herrera "responded by stating that she was in the process of moving out." Id. at 31. When O'Brien questioned Herrera about the "state of the tub," Herrera "informed [O'Brien] that the tub had been backing up and that they had spoken to the landlord about the situation." Id. at 32. Herrera also claimed to have "been using someone else's bathroom to bathe her child."¹ Id.

O'Brien decided, based upon the unsanitary conditions of the apartment, to contact New Mexico's Child, Youth & Families Department (CYFD). A CYFD worker arrived on the scene and paramedic services were contacted in order to check the health of Herrera's son. The paramedic examination indicated that the child was in good health. O'Brien also contacted the City of Albuquerque's nuisance abatement officials based on her concerns that the apartment complex was not up to city code.

Ultimately, O'Brien arrested Herrera for violating New Mexico's child abuse statute, N.M. Stat. § 30-6-1. O'Brien did so because she was concerned that Herrera's son "could hurt himself by picking up the razor blades that were on the floor, ingesting the cigarette butts on the floor, being attacked by the pitbull in the kitchen or drowning in the sewage that was in the bathtub." Id. at 153. O'Brien was also concerned "that the child could have sustained an infection due to the sewage in the bathtub." Id. at 154. Lastly, O'Brien "had concerns because ... Herrera had disclosed ... that she had been drinking alcohol ... that evening." Id.

Herrera spent one day in jail as a result of the arrest. Apparently, the criminal charges against her were dismissed.

Procedural background

In 2007, Herrera filed suit in New Mexico state court against the Albuquerque Police Department (APD), the City of Albuquerque (City), O'Brien, and John Does I through V, whom she alleged "were involved in hiring, training, supervising or disciplining" O'Brien. Id. at 15. Herrera's complaint summarized the events leading to her arrest on October 5, 2005, and asserted causes of action under the New Mexico Tort Claims Act (Count I) and 42 U.S.C. § 1983 (Counts II and III). Herrera's § 1983 claims were based on her assertion that O'Brien violated her Fourth Amendment rights by arresting her without probable cause.

On November 8, 2007, defendants removed the case to federal district court, noting that Herrera's "right to bring an action for the alleged violation of h[er] constitutional rights was created by federal law, specifically 42 U.S.C. § 1983," and that the federal district court thus "ha[d] federal question jurisdiction" over the action. Id. at 13. Shortly after the removal, Herrera voluntarily dismissed her claims against APD.

On August 21, 2008, Herrera filed a motion for summary judgment on the issue of defendant O'Brien's individual liability on her § 1983 and tort claims. In that motion, Herrera argued "that her arrest was not supported by probable cause...." Id. at 33. The City and O'Brien filed a response in opposition to Herrera's motion, arguing that the question of whether O'Brien had probable cause to arrest Herrera involved genuine issues of material fact and could not be resolved as a matter of law.

On November 24, 2008, the district court issued an order granting Herrera's motion for summary judgment on the issue of defendant O'Brien's individual liability. In that order, the district court first concluded that Herrera had "met her initial burden of establishing that no genuine issue exist[ed] as to any material fact, and that Defendants ha[d] failed to set forth specific facts showing that there [wa]s a genuine issue for trial." Id. at 89. In turn, the district court concluded "that a reasonable officer with the same facts before him or her [as O'Brien] would not have arrested [Herrera] without a warrant." Id. at 95. In other words, the district court concluded, as a matter of law, "that ... O'Brien arrested [Herrera] without probable cause." Id. at 96. Accordingly, the district court concluded that "O'Brien [wa]s liable under the New Mexico Tort Claims Act and 42 U.S.C. § 1983 for arresting [Herrera] under N.M.S.A. § 30-6-1 without probable cause." Id. at 97.

On December 1, 2008, the City and O'Brien filed a motion for reconsideration of the district court's order granting summary judgment in favor of Herrera on the issue of O'Brien's individual liability. The City and O'Brien asserted that they "[we]re not taking issue with the Court's reasoning, but [we]re asking that, as a matter of law, the Court find that ... O'Brien [wa]s entitled to qualified immunity and [thus was] immune from suit." Id. at 120. Although defendants conceded "the issue of qualified immunity was not raised in [their] Response to [Herrera's] Motion for Summary Judgment," they noted "it was raised as an affirmative defense in [their] Answer to the Complaint as well as in the Pretrial Order," and, under Tenth Circuit law, could be raised at any time. Id. at 121. As for the merits of the qualified immunity issue, defendants argued that the district court "ha[ving] determined that there was a constitutional violation based upon the facts presented to the Court," "must now consider whether ... O'Brien's conduct violated clearly established law." Id. at 122. On that issue, defendants argued, the district court expressly noted in its order granting summary judgment for Herrera "that whether ... O'Brien had probable cause to arrest [Herrera] was a `close case,'" and "[b]ecause th[e] case [wa]s a `close case' it would not have been clear to a reasonable officer what the law required." Id.

In her response to defendants' motion for reconsideration, Herrera argued, in pertinent part, that

because the existence of probable cause [wa]s the determinative factor in both an unlawful arrest analysis as well as a qualified immunity analysis, and ... because th[e] Court ha[d] already thoroughly examined the probable cause issue and found probable cause to be lacking such that a reasonable officer would realize that the effectuation of an arrest under the circumstances would be unlawful and in violation of both federal and state law, ... there [wa]s no further analysis that need[ed] to be performed by th[e] Court.

Id. at 139.²

On December 19, 2008, the district court issued a memorandum opinion and order granting in part and denying in part defendants' motion for reconsideration. The district court denied the motion to the extent defendants were seeking reconsideration of the court's order under Fed. R.Civ.P. 59(e) because, in the court's view, defendants were "clearly attempting to use Rule 59(e) to raise legal arguments that they could have and should have raised prior to judgment." App. at 179 (internal quotation marks and brackets omitted). The district court granted the motion, however, to the extent it sought a determination that O'Brien was entitled to qualified immunity and was thus immune from liability. Focusing on whether the constitutional right at issue was clearly established at the time of Herrera's arrest, the district court concluded that the case law "interpreting New Mexico's child abuse statute," N.M. Stat. § 30-6-1, was not clearly established at the time of Herrera's arrest, and that, in turn, an officer could have, based upon the circumstances encountered at Herrera's apartment, reasonably but mistakenly concluded that Herrera had violated the child abuse statute by placing her son "in a zone of danger." Id. at 182. In other words, the district court concluded that "[a]n officer's mistaken belief that he or she could arrest on these undisputed facts [wa]s not objectively unreasonable given that [the] New Mexico courts ha[d] continued to clarify what constitute[d] a crime under N.M.S.A. § 30-6-1 since the time of [Herrera's] arrest." Id. The district court in turn concluded that O'Brien was "entitled to qualified immunity." Id. at 186. Lastly, the district court concluded that, "[b]ecause there [we]re no federal claims remaining after finding...