James v. Chavez

• Decision Date: 09 November 2011
• Docket Number: No. CIV 09–0540 JB/CG.,CIV 09–0540 JB/CG.
• Citation: 830 F.Supp.2d 1208
• Parties: Theresa JAMES, as wrongful death estate representative for Jay Murphy Sr., deceased, and as custodial parent and next friend of her daughter, M., a minor, Plaintiff, v. Martin CHAVEZ, III, individually and in his official capacity as Mayor of the City of Albuquerque, Ray Schultz, individually and in his official capacity as Chief of Police of the City of Albuquerque, Russell Carter, individually and in his official capacity as an officer of the Albuquerque Police Department “S.W.A.T.” Team, Michael Fox, individually and in his official capacity as an Officer (Detective) of the Albuquerque Police Department, City of Albuquerque, as an Albuquerque Police Department, a municipal entity organized under the laws of the State of New Mexico and its law enforcement agency, Josh Brown, an Officer of the Albuquerque Police Department, individually, Defendants.
• Court: U.S. District Court — District of New Mexico

830 F.Supp.2d 1208

Theresa JAMES, as wrongful death estate representative for Jay Murphy Sr., deceased, and as custodial parent and next friend of her daughter, M., a minor, Plaintiff,

v.Martin CHAVEZ, III, individually and in his official capacity as Mayor of the City of Albuquerque, Ray Schultz, individually and in his official capacity as Chief of Police of the City of Albuquerque, Russell Carter, individually and in his official capacity as an officer of the Albuquerque Police Department “S.W.A.T.” Team, Michael Fox, individually and in his official capacity as an Officer (Detective) of the Albuquerque Police Department, City of Albuquerque, as an Albuquerque Police Department, a municipal entity organized under the laws of the State of New Mexico and its law enforcement agency, Josh Brown, an Officer of the Albuquerque Police Department, individually, Defendants.

No. CIV 09–0540 JB/CG.

United States District Court, D. New Mexico.

Nov. 9, 2011.

James P. Lyle, Law Offices of James P. Lyle P.C., Albuquerque, NM, for Plaintiff.

Kathryn Levy, City of Albuquerque Legal Department, Albuquerque, NM, for Defendants Martin Chavez, III, Ray Schultz, and the City of Albuquerque.

Adam H. Greenwood, Douglas E. Gardner, Terri S. Beach, Luis E. Robles, Robles, Rael & Anaya, Albuquerque, NM, for Defendants Russell Carter, Michael Fox, and Josh Brown.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the City Defendants' Motion for Partial Summary Judgment No. I: Dismissal of Plaintiff's Fourth and Fourteenth Amendment Excessive Force Claims Against Officer Carter and Fourteenth Amendment Equal Protection Claim, filed August 16, 2011 (Doc. 103) (“MSJ”). The Court held a hearing on October 4, 2011. The primary issues are, with respect to the claims against Defendant Russell Carter, whether the Court should enter summary judgment against Plaintiff Theresa James on her: (i) unlawful entry claims; (ii) excessive force claims asserted under a Fourth Amendment theory (Count IV and V); (iii) excessive force claims asserted under a substantive due-process theory (Count IV and V); and (iv) Equal Protection Clause claims against Carter and the rest of the Defendants. The Court will grant the Motion for Summary Judgment. The Court will enter summary judgment on the excessive-force claims asserted under a Fourth Amendment theory as Carter did not seize either James Murphy Sr. or Mariah Murphy within the meaning of the Fourth Amendment. Because James' unlawful entry claims are not in the Amended Complaint, and because James would have to move to amend to add these claims to the case, the Court will deny leave to amend. Granting leave to amend on the unlawful entry claims would be futile. Pursuant to the parties' agreement that the Court can address these unlawful entry claims, the Court will enter summary judgment on James' unlawful entry claims as exigent circumstances justified Carter's conduct in ordering the SWAT raid and his conduct was reasonable. The Court will enter summary judgment on James' excessive force claims asserted under a substantive due-process theory because Carter's conduct does not shock the conscience. The Court will enter summary judgment on James' Equal Protection Clause claims against Carter and the other Defendants as James has agreed to voluntary dismissal of those claims.

FACTUAL BACKGROUND

While James disputes one of the Defendants' allegedly undisputed facts, almost all of the material facts are undisputed. See Plaintiff's Response in Opposition to Defendants' First Motion for Summary Judgment (Doc. No. 103) at 2–3, filed September 12, 2011 (Doc. 123) (“Response”). More specifically, James disputes only one of the Defendants' facts—whether Murphy Sr. threatened his daughter. See Response at 2–3. Additionally, James asserts that some of the Defendants' facts are not material. See Response at 2–3.¹ James also provides several additional material facts in her Response. The Defendants do not specifically controvert these additional material facts in their Reply. See Reply to Response to City Defendants' Motion for Partial Summary Judgment No. I: Dismissal of Plaintiffs' Fourth and Fourteenth Amendment Excessive Force Claims Against Officer Carter and Fourteenth Amendment Equal Protection Claim, filed September 19, 2011 (Doc. 135) (“Reply”). The Court then assumes the additional facts in the Response to be true for the purposes of this Motion for Summary Judgment. See D.N.M.LR–Civ. 56.1(b) (“The Reply must contain a concise statement of those facts set forth in the Response which the movant disputes or to which the movant asserts an objection.... All material facts set forth in the Response will be deemed undisputed unless specifically controverted.”).

On June 5, 2007, at approximately 1:37 p.m., Arturo Bandera telephoned the Albuquerque Police Department (“APD”) communications operator from his residence located at 1613 Spence, SE. See Deposition of Arturo Bandera at 37:23–25 (taken July 28, 2011), filed August 16, 2011 (Doc. 103–1) (“Bandera Depo.”). Bandera informed the APD operator that the decedent in this matter, Murphy Sr., was standing at Bandera's front door armed with a knife. See Bandera Depo. at 38:3–7. In addition, Bandera stated that the suspect's actions were causing him to fear for his safety and requested that APD respond quickly. See Bandera Depo. at 38:9–12. Immediately following Bandera's call to the APD communications operator, Murphy Sr. left the area in a green Dodge four-by-four pick-up truck with a government license plate. See Albuquerque Police Department Interview of Jay Murphy Jr. at 7:14–18 (dated June 5, 2007), filed August 16, 2011 (Doc. 103–2) (“Murphy Jr. Interview”); Albuquerque Police Department Interview of Mariah Murphy at 7:7–12 (dated June 5, 2007), filed August 16, 2011 (Doc. 103–3) (“M. Murphy Interview”).

Upon receiving Bandera's call, APD dispatched APD Officer Leonard Holloway to respond to Bandera's call. See Albuquerque Police Department Supplemental Report of Officer Leonard Holloway at 1 (dated June 5, 2007), filed August 16, 2011 (Doc. 103–4) (“Holloway Supplemental Report”). Upon his arrival in the area, Holloway observed an individual matching the description of the suspect traveling southbound on University Blvd. SE, near Gibson Blvd. SE, in a green Dodge pick-up truck. See Holloway Supplemental Report at 1. Furthermore, Holloway observed the driver of the green Dodge pick-up truck waving a knife while traveling southbound on University near Gibson. See Holloway Supplemental Report at 1. While in motion, Holloway observed the driver of the vehicle throw a full bottle of beer out the vehicle's window. See Holloway Supplemental Report at 1. Ultimately, the driver turned the vehicle westbound on Spence SE and parked in the driveway of 1608 Spence SE. See M. Murphy Interview at 7:11–12. The driver of the vehicle, later identified as Murphy Sr., exited the truck and proceeded towards the front door of 1608 Spence SE, where Holloway observed Murphy Sr. holding a knife. See Murphy Jr. Interview at 8:13–20; M. Murphy Interview at 7:1–14. Murphy Sr. yelled at Officer Holloway and ran into his residence. See Holloway Supplemental Report at 1. Additional APD officers began to arrive on the scene, as Holloway had previously requested additional assistance. See Holloway Supplemental Report at 1.

Shortly thereafter, APD Crisis Intervention Team (“CIT”) Officer Nicholas Sanders arrived at the scene to assist Officer Holloway. Holloway Supplemental Report at 1; Albuquerque Supplemental Report of Officer Nicholas Sanders at 1 (dated June 5, 2007), filed August 16, 2011 (Doc. 103–5) (“Sanders Supplemental Report”). Moments before Sanders' arrival, Murphy Sr.'s son, Jay Murphy Jr., exited 1608 Spence SE in an attempt to advise the police of Murphy Sr.'s emotional state. See Murphy Jr. Interview at 7:20–8:4; Holloway Supplemental Report at 1; Sanders Supplemental Report at 1. Because Murphy Jr. was a potential witness, and for Murphy Jr.'s own safety, Holloway placed Murphy Jr. in the rear seat of his patrol car. See Holloway Supplemental Report at 1; Murphy Jr. Interview at 12:9–12. Approximately ten minutes after Sanders arrived at the scene, Murphy Sr. stepped out of the residence holding a twelve-to fourteen-inch knife, a boom box radio, and a beer bottle. See Sanders Supplemental Report at 1. Murphy Sr. told the officers to release his son or someone would get hurt. See Sanders Supplemental Report at 1. While holding these items, Murphy Sr. approached Sanders. See Sanders Supplemental Report at 1. Instead of complying with Sanders' command, Murphy motioned as if he was going to throw the boom box radio or the beer bottle at Sanders. See Sanders Supplemental Report at 1.

The third officer to arrive on scene, APD Officer George Trujillo, also witnessed Murphy Sr. in front of 1608 Spence SE holding a knife and yelling in an irate manner. See Holloway Supplemental Report at 1; Sanders Supplemental Report at 1; Albuquerque Police Department Supplemental Report of Officer George Trujillo at 1 (dated June 5, 2007), filed August 16, 2011 (Doc. 103–6) (“Trujillo Supplemental Report”). As Murphy Sr. moved toward Sanders, Murphy Sr. threw a full bottle of beer at Trujillo. See Trujillo Supplemental Report at 1. The beer bottle broke in front of Trujillo, striking him with broken glass and beer. See Trujillo Supplemental Report at 1. Murphy Sr. then threw the boom box radio at officers, but missed striking them. See Trujillo Supplemental Report at 1. Afterward, Murphy Sr. retreated behind a wrought iron front door at 1608 Spence SE, continuing to ignore commands by officers to drop the knife. See Holloway Supplemental Report at 1; Sanders Supplemental Report at 1; Trujillo Supplemental Report at 1. After Murphy Sr. retreated into his residence, Sanders used his patrol vehicle's public address (“PA”) system to...