Marin v. King, 010318 FED10, 16-2225
| Opinion Judge | CAROLYN B. MCHUGH CIRCUIT JUDGE |
| Party Name | MARIO D. MARIN; REYES MARIN, Plaintiffs - Appellants, v. GARY KING, Attorney General of New Mexico, individually; STEVEN S. SUTTLE, Assistant Attorney General of New Mexico, individually; HEATHER FERGUSON GREENHOOD; PATRICIA FEESER NORRIS, D. V. M., Defendants-Appellees. |
| Judge Panel | Before MATHESON, BACHARACH, and McHUGH, Circuit Judges. |
| Case Date | January 03, 2018 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Tenth Circuit |
(D.C. No. 1:12-CV-00448-KG-KK) (D. New Mexico)
Before MATHESON, BACHARACH, and McHUGH, Circuit Judges.
ORDER AND JUDGMENT[*]
CAROLYN B. MCHUGH CIRCUIT JUDGE
This case arises out of the execution of three search warrants on a New Mexico ranch owned by Plaintiffs Mario and Reyes Marin.1 The warrants were obtained and executed as part of an investigation of an alleged cockfighting operation on Plaintiffs' ranch. Members of the New Mexico Attorney General's Animal Cruelty Task Force (Task Force) actively contributed to the procurement and execution of the search warrants. In the process of executing the search warrants, New Mexico law enforcement officials seized and destroyed hundreds of Plaintiffs' hens, roosters, baby chickens, and eggs. But New Mexico never charged Plaintiffs with any crimes.
Plaintiffs filed this 42 U.S.C. § 1983 lawsuit against former New Mexico Attorney General Gary King, former New Mexico Assistant Attorney General Steven Suttle, New Mexico State Police Detective Max Salas, San Juan County Deputy Sheriff Bryce Current, San Juan County, and two private citizen volunteers serving on the Task Force-Heather Ferguson Greenhood ("Ms. Ferguson") and Dr. Patricia Feeser Norris ("Dr. Norris"). Plaintiffs claimed that Ms. Ferguson and Dr. Norris violated their Fourth, Fifth, and Fourteenth Amendment rights, and that Mr. King and Mr. Suttle were liable under a theory of supervisory liability.2 The remaining Defendants moved for summary judgment based on qualified immunity and the district court granted each motion. Plaintiffs appeal. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
In this section, we begin with a brief overview of the facts underlying this dispute. We then provide the procedural history giving rise to this appeal.
A. Factual History
1. The Task Force
In 2007, then-Attorney General Gary King organized the Task Force as a "policy group" to "engage in lobbying and other efforts aimed at the generation of new animal cruelty laws" and to "facilitate information sharing between state and local law enforcement agencies regarding the implementation of new and existing animal cruelty laws." App. at 416. The Task Force was also intended to support the enforcement of animal fighting laws. But it was not designed to "have any independent authority to conduct any law enforcement activities." Id. at 417.
The Task Force was an ad hoc group for sharing information that consisted of individuals who were interested, or had an expertise, in animal cruelty laws. The Task Force met periodically and representatives of several local law enforcement authorities attended the meetings at various times. The Task Force included employees of the Attorney General's Office, local law enforcement officials, and private citizens, such as Ms. Ferguson and Dr. Norris. While the Task Force had no formal membership, titles, or appointment process, Mr. King was known as the Task Force's "chair, " Mr. Suttle was known as its "head, " Ms. Ferguson was known as its "coordinator, " and Dr. Norris was its forensic veterinarian. Ms. Ferguson and Dr. Norris were unpaid citizen volunteers. Neither was an employee of the Attorney General's Office or received any law enforcement training as a prerequisite to, or as part of, her service on the Task Force. At all relevant times, Ms. Ferguson was an employee of a non-profit entity called Animal Protection for New Mexico.
While Mr. King avers that there was no "policy under which the Task Force would conduct raids related to enforcement of animal cruelty laws, " id. at 417, it is undisputed that, in 2008 and 2009, Ms. Ferguson and Dr. Norris accompanied law enforcement officials, from various local entities, during the execution of search warrants on private property. In some instances, officials seized and euthanized animals that appeared to be involved in illegal dogfighting or cockfighting. Although neither Mr. King nor Mr. Suttle personally attended the raids, Ms. Ferguson kept them both apprised of the Task Force's involvement in the raids.
2. The Searches of Plaintiffs' Ranch
On April 29, 2009, Mr. Salas sought a warrant to search Plaintiffs' New Mexico ranch. In his Affidavit for Search Warrant, Mr. Salas averred that, a few days prior, Mr. Current asked him to serve as the lead investigator on a possible cockfighting operation at Plaintiffs' ranch. According to Mr. Salas, Mr. Current stated his office learned about the cockfighting operation through a confidential informant (CI). Mr. Current then confirmed elements of the CI's report during a helicopter ride over Plaintiffs' ranch. Mr. Salas's affidavit also indicated he met with another detective who had learned from a second CI that cockfighting events were occurring at Plaintiffs' ranch. The detective informed Mr. Salas that the second CI provided information about two other cockfighting operations in New Mexico, and that "[Ms.] Ferguson with the Attorney General's Office Animal Cruelty Task Force . . . said the information the [second] CI gave had been verified." Id. at 684. Based on Mr. Salas's affidavit, a magistrate judge issued a search warrant (the First Warrant) the same day Mr. Salas requested it.
Mr. Salas, Mr. Current, and other law enforcement officials executed the First Warrant on Plaintiffs' ranch. Ms. Ferguson and Dr. Norris accompanied Mr. Salas and his officers. While executing the warrant, officials found evidence of cockfighting and animal cruelty. Mr. Salas observed that all the roosters were either on leashes or housed in fifty-five gallon plastic drums. He also saw a Hogan-type structure, 3 which he believed was used as a cockfighting arena. Mr. Salas and the other officials seized numerous items believed to be used for cockfighting.4 Dr. Norris assisted in the search by examining over one-hundred birds believed to be trained and used for cockfighting. Dr. Norris opined that sixteen of the birds were in "poor condition, " so Mr. Salas seized them. Id. at 894.
When Mario arrived at the ranch, Mr. Salas introduced himself as "the lead investigator" and stated he was there to "serve a search warrant in connection with roosters on the property." Id. at 776. Mario later explained the roosters would kill each other if they were not penned, as that is what they had been bred to do. Mario also told Mr. Salas that he and his father "reminisce about old times and throw on the knives and fight the chickens sometimes." Id. at 894. During the ensuing conversation, it became apparent to Mr. Salas that Plaintiffs injected their birds with antibiotics and kept no records of which birds had been treated and which birds had not. Mr. Salas also noted that Plaintiffs did not state whether the medicines in their possession were prescribed by a licensed veterinarian.
During the search, Ms. Ferguson rode in a helicopter over the ranch to better observe the property. Mario avers in his affidavit that Mr. Current told him Ms. Ferguson wanted Plaintiffs to sign over all the roosters on the ranch to state custody. Mr. Current explained to Mario that Ms. Ferguson was with the Attorney General's Office and in charge of the search. Mr. Current and Mr. Salas then told Plaintiffs the roosters were to be put down. When Plaintiffs refused to relinquish the birds, Mr. Current and Mr. Salas informed Plaintiffs that they would be charged $6 a day per bird if the birds had to be taken into custody rather than destroyed. This would have required Plaintiffs to pay thousands of dollars per day. Mr. Current and Mr. Salas "made clear that [Ms.] Ferguson was the person who had given them this information." Id. at 778. After speaking with Ms. Ferguson by telephone, Mr. Current informed Plaintiffs they could face felony charges if they did not give permission to euthanize the birds. Plaintiffs did not acquiesce to the destruction of all the birds at that time. But upon learning Dr. Norris had identified sixteen birds in poor condition and that Mr. Salas was going to seize them, Reyes signed a form consenting to the removal and destruction of those sixteen birds.
On May 1, 2009, Mr. Salas sought another search warrant for Plaintiffs' ranch. Mr. Salas's supporting affidavit stated that he had a discussion with Ms. Ferguson on April 30, during which she indicated that the remaining roosters and hens at the ranch needed to be euthanized "due to the contamination by the steroids found at the location which, according to the Federal Drug Administration (FDA) and United States Department of Agriculture (USDA), are illegal to administer to poultry." Id. at 690. Mr. Salas further reported that Ms. Ferguson explained the steroids "could potentially enter the food supply chain [and] contaminate other poultry populations in the state." Id. And Mr. Salas averred that Ms. Ferguson claimed she was coordinating with the USDA so its veterinarians could test and assess the seized poultry. Mr. Salas also spoke to Dr. Norris, who stated that TA 333, DSP and AMP-2500, the medications seized from Plaintiffs' ranch during execution of the First Warrant, are long- and short-term steroids, respectively. According to Mr. Salas's affidavit, Dr. Norris also said that possession of those steroids is a felony under federal guidelines, the FDA has very strict regulations on what medications can be used in food-producing animals, the medications found are not allowed in poultry,...
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