Marquez v. City of Albuquerque

• Decision Date: 25 February 2005
• Docket Number: No. 02-2294.,02-2294.
• Citation: 399 F.3d 1216
• Parties: Marlo MARQUEZ, Plaintiff-Appellant, v. The CITY OF ALBUQUERQUE and Officer Andrew Lehocky, both in his official capacity as a police officer and individually, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

399 F.3d 1216

Marlo MARQUEZ, Plaintiff-Appellant, v. The CITY OF ALBUQUERQUE and Officer Andrew Lehocky, both in his official capacity as a police officer and individually, Defendants-Appellees.

No. 02-2294.

United States Court of Appeals, Tenth Circuit.

February 25, 2005.

COPYRIGHT MATERIAL OMITTED

Sam Bregman (Amy G. Archibeque with him on the brief), The Bregman Law Firm, P.C., Albuquerque, New Mexico, for Plaintiff-Appellant.

Luis Robles (Christina Anaya with him on the brief) French & Associates, Albuquerque, New Mexico, for Defendant-Appellee Andrew Lehocky.

Kathryn Levy, Deputy City Attorney, City of Albuquerque, Albuquerque, New Mexico, on the brief for Defendant-Appellee City of Albuquerque.

Before KELLY, HOLLOWAY and HARTZ, Circuit Judges.

HOLLOWAY, Circuit Judge.

This is an appeal of a judgment on a jury verdict for the Defendants in a § 1983 case alleging the use of excessive force to effectuate an arrest following a high-speed chase. Plaintiff, Marlo Marquez, was a passenger in a car that was involved in a high-speed police chase that started because the police believed the car contained burglary suspects. At the conclusion of the chase, Plaintiff was apprehended by Defendant Lehocky's police dog. Plaintiff sued, claiming the use of the dog constituted excessive force in violation of Plaintiff's constitutional rights.

After a jury verdict and judgment for the Defendants, Plaintiff appeals. Specifically, Plaintiff avers five points of error by the district court: (1) The refusal to grant Plaintiff's motion for judgment notwithstanding the verdict; (2) The refusal to allow Plaintiff's expert to testify; (3) The refusal to hold an evidentiary hearing to determine whether the jury was unduly influenced by extraneous prejudicial information; (4) The refusal to have an exhibit, that was inadvertently left in the courtroom, taken to the jury during deliberations; (5) The dismissal of claims against the City of Albuquerque on the basis of the jury verdict. We find no error and AFFIRM the judgment.

I Facts

At approximately 10 p.m. on the evening of August 10, 1999, Albuquerque police responded to a report of a residential burglary. When they arrived at the scene, a witness described two suspects, a 17 year old Hispanic male 5'4" tall and 145 lbs, and a tall, thin, and bald African-American male who was approximately 20 years old. The witness described the car the suspects used as a large, silver, older model vehicle and provided the license plate number, which belonged to a 1995 silver Pontiac. When the police arrived at the address of the registered owner of this car, they found no one home.

While this was going on, Plaintiff Marquez was walking home. She was offered a ride by an acquaintance, Cynthia Perkins, which she accepted. Shortly thereafter, the police attempted to pull over the vehicle for a non-functional license plate lamp. Perkins refused to stop and a high-speed chase ensued. During this chase, officers were informed that the vehicle they were chasing was involved in a burglary earlier that night. The chase concluded when the vehicle, driven by Perkins, struck a wall.

The first officer at the scene was Defendant Lehocky. Lehocky testified that Marquez exited the car from the passenger side door, ignored Lehocky's command to stop and attempted to flee the scene. Lehocky ordered his police service dog, Bart, to apprehend the suspect. Bart complied and latched firmly onto Plaintiff Marquez. Meanwhile, Perkins, who had briefly exited the car, was now back in the car attempting to drive off. Lehocky then ordered Marquez, with Bart still firmly attached to her, away from the rear of the car. By this time, Officer Heshley had arrived and ordered Perkins out of the vehicle. Perkins complied and was taken into custody by Officer Heshley. Simultaneously, Defendant Lehocky removed Bart from Plaintiff Marquez and took her in custody.

On the basis of these events, Marquez sued Lehocky and the City of Albuquerque under § 1983, alleging the force used by Defendant Lehocky in effectuating her arrest was excessive and therefore violated her constitutional rights. The jury returned a verdict for the Defendants and Plaintiff now appeals.

II Jurisdiction

Jurisdiction in this case is premised on the federal question raised by Marquez regarding a deprivation of rights and privileges secured to her by the Constitution and laws of the United States, including the Fourth and Fourteenth Amendments within the meaning of 42 U.S.C. § 1983. Marquez filed her § 1983 claim following her arrest by Officer Lehocky, alleging that the force used by Officer Lehocky in effectuating her arrest was excessive and in violation of her constitutional rights. Appellate jurisdiction in this Court is provided by 28 U.S.C. § 1291. The District Court of New Mexico entered its final judgment on October 4, 2002, having conducted a trial on the merits that resulted in a jury verdict for Defendants.

III Discussion

A Denial of Judgment as a Matter of Law

Marquez's § 1983 suit alleged that Lehocky used excessive force against her by means of his police service dog, Bart, during her arrest. Appellee's Supp.App. at 27. The jury disagreed and returned a verdict for the Defendants. App. at 288. On appeal, Marquez argues the district court erred in denying her judgment as a matter of law. In other words, Marquez argues the evidence is such that the only rational conclusion is that Lehocky used excessive force in effectuating her arrest. We disagree.

A court should grant a party's motion for judgment as a matter of law only if "the proof is all one way or so overwhelmingly preponderant in favor of the movant as to permit no other rational conclusion." Conoco Inc. v. ONEOK, Inc., 91 F.3d 1405, 1407 (10th Cir.1996). In weighing the proof, this court should "not weigh the evidence, pass on the credibility of witnesses, or substitute [its] judgment for that of the jury." Questar Pipeline Co. v. Grynberg, 201 F.3d 1277, 1284 (10th Cir.2000).

We analyze whether the force used to effectuate an arrest violates an individual's Fourth Amendment rights under the "objective reasonableness" standard of the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). A "court assesses the reasonableness of an officer's conduct from the perspective of a reasonable officer on the scene, acknowledging that the officer may be forced to make split-second judgments in certain difficult circumstances." Olsen v. Layton Hills Mall, 312 F.3d 1304, 1314 (10th Cir.2002) (quoting Medina v. Cram, 252 F.3d 1124, 1131 (10th Cir.2001)). Factors to consider in assessing whether the force used was reasonable include: the alleged crime's severity, the degree of potential threat that the suspect poses to an officer's safety and to others' safety, and the suspect's efforts to resist or evade arrest.¹ Id.

There are four categories of evidence presented at trial that support the jury's conclusion that Lehocky was objectively reasonable in ordering his police service dog to apprehend Marquez. First, there was substantial evidence presented at trial to support Lehocky's belief at the time of the arrest that he was faced with two potentially armed burglary suspects. Officer Heshley testified that she broadcast over the police radio that the silver Pontiac in which Marquez was a passenger was involved in a burglary. App. at 193. Lehocky testified that the two occupants of the Pontiac, Perkins and Marquez, appeared to match the descriptions of the robbery suspects he heard over the police radio. Id. at 163, 167. Lehocky's testimony is supported by the fact that Perkins had brown hair and was wearing a blue shirt like one of the suspects and Marquez was African-American like the other. Id. at 163, 167. Moreover, Lehocky testified that between one quarter and one half of all robbery suspects are armed. Id. at 149-50. Therefore, there was substantial evidence presented at trial that, at the time of the arrest, Lehocky reasonably believed Marquez was a potentially armed robbery suspect.

Second, the high-speed chase that immediately preceded the arrest indicated Marquez, who was reasonably believed to be the burglary accomplice of the driver, was a danger to the public and was willing to evade arrest. That chase ended with the vehicle crashing into a wall, id. at 161, after leading police on an extended and reckless high speed chase that included excessive speed, id. at 197, the running of several stop signs, id. at 195-97, the running of several red lights, id. at 197, and high-speed weaving in a residential neighborhood, id. at 159-60. Therefore, there was substantial evidence presented at trial to support Lehocky's belief that failing to apprehend the occupants of the silver Pontiac would endanger the public safety and allow the suspects to evade arrest.

Third, at the conclusion of the high speed chase, Marquez attempted to evade arrest by running away from Lehocky and trying to climb a fence. Id. at 134, 136. Finally, at the time of the arrest, Lehocky was the only officer at the scene and was required to secure two felony suspects. Id. at 136.

These pieces of evidence portray a tense and rapidly evolving situation in which a lone officer was confronted with two potentially armed robbery suspects who had just led police on a reckless high-speed chase. In this context, a jury could rationally reach the conclusion that Lehocky, making a "split-second judgment[ ] in [a] difficult circumstance[ ]," acted reasonably when, after warning Marquez to halt, he ordered his police service dog to apprehend Marquez. Olsen, 312 F.3d at 1314. Accordingly, the district court did not err in denying Marquez judgment as a matter of law.

B

Exclusion of the testimony of plaintiff's expert witness

Marquez sought to have her expert, Dr. George Kirkham, testify at trial that the use of a police dog is objectively reasonable only where there is evidence of an...