Nagol v. State of NM

• Decision Date: 12 March 1996
• Docket Number: Civ. No. 94-1281 BB/WWD.
• Citation: 923 F. Supp. 190
• Parties: Richard NAGOL, Plaintiff, v. STATE OF NEW MEXICO, Edward Apodaca, New Mexico Department of Public Safety, Defendants.
• Court: U.S. District Court — District of New Mexico

923 F. Supp. 190

Richard NAGOL, Plaintiff, v. STATE OF NEW MEXICO, Edward Apodaca, New Mexico Department of Public Safety, Defendants.

Civ. No. 94-1281 BB/WWD.

United States District Court, D. New Mexico.

March 12, 1996.

Richard Nagol, Deming, NM, pro se.

Thomas A. Sandenaw, Jr., Leonard J. Piazza, Las Cruces, NM, for Defendants.

MEMORANDUM OPINION

BLACK, District Judge.

This Memorandum Opinion addresses several pending motions. Having reviewed the submissions of the parties, and having considered the applicable law, the Court finds that

(1) Defendants' January 26, 1995 motion to dismiss for failure to state a claim upon which relief can be granted (Doc. 6) is well taken and should be GRANTED, and

(2) Plaintiff's August 13, 1995 motion for summary judgment (Doc. 32), Defendants' September 5, 1995 motion to strike portions of affidavit of Richard Albright (Doc. 34), and Plaintiff's January 24, 1996 motion for order to go forward with case (Doc. 44) should be DENIED AS MOOT.

I. Factual Background and Procedural History

The facts giving rise to this case occurred on May 26, 1992 when New Mexico State Police Officer Edward Apodaca pulled over an automobile that he had clocked as traveling sixty-five miles per hour in a fifty-five miles per hour speed limit zone. Plaintiff, Richard Nagol, was a passenger in the car driven which was driven by Richard Albright. After stopping the vehicle, Officer Apodaca approached the vehicle and asked Mr. Albright for his driver's licence, which Mr. Albright handed to Officer Apodaca. At this point, Officer Apodaca noticed that Plaintiff was not wearing a seat belt and asked see Plaintiff's driver's license. Plaintiff told Officer Apodaca that his name was "Nagol" but refused to provide Officer Apodaca with any further identification. Officer Apodaca informed Plaintiff that he intended to cite Plaintiff for not wearing a seatbelt, and that he needed Plaintiff's full name, date of birth, and address to complete the citation. Plaintiff continued to refuse to provide Officer Apodaca with further identification. Officer Apodaca then arrested Plaintiff for failure to provide identification pursuant to N.M.Stat.Ann. § 30-22-3 (Michie Supp.1994).

Plaintiff, acting pro se, brought suit under 42 U.S.C. § 1983 (1994) against the State of New Mexico, Edward Apodaca, and the New Mexico Department of Public Safety. He claims that Officer Apodaca's conduct violated his rights under the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, and seeks compensatory and punitive damages arising from these alleged violations. Plaintiff further challenges the constitutionality of N.M.Stat.Ann. § 30-22-3, claiming that the law violates the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, and Article II, §§ 10, 15, 17, & 18 of the New Mexico Constitution. Finally, Plaintiff asks this Court to enjoin the State of New Mexico from making any future arrests under section 30-22-3. Defendants have collectively filed a motion to dismiss Plaintiff's case for failure to state a claim upon which relief can be granted, and this motion is now before the Court.¹

II. Analysis

A. Plaintiff's Claims Pursuant to 42 U.S.C. § 1983

Officer Apodaca argues that he is entitled to qualified immunity and therefore shielded from liability under Plaintiff's § 1983 claim. "Government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The qualified immunity standard "provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). The Tenth Circuit has stated that

Once a defendant pleads qualified immunity, the plaintiff initially bears a heavy two-part burden. First, the plaintiff must demonstrate that the defendant's actions violated a constitutional right or statutory right. Second, the plaintiff must show that the constitutional or statutory rights the defendant allegedly violated were clearly established at the time of the conduct at issue. Plaintiff must articulate the clearly established constitutional right and the defendant's conduct which violated the right with specificity.

Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir.1995) (citations omitted). Qualified immunity is a legal rather than a factual issue which must be resolved by the trial court. Snell v. Tunnell, 920 F.2d 673, 696 (10th Cir.1990). The Supreme Court has "stressed the importance of resolving immunity questions at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991).

Plaintiff argues that Officer Apodaca had no authority to question him because at the time Officer Apodaca observed that Plaintiff was not wearing a seatbelt, Plaintiff was sitting in a parked car. Plaintiff asserts that sitting in a parked car while not wearing a seatbelt is lawful and that, as a result, Officer Apodaca had no "reasonable articulable suspicion" that a crime was being committed that would allow him to demand identification from Plaintiff. Plaintiff, however, also states that section 30-22-3 provided Officer Apodaca the power to arrest Plaintiff. Thus, Plaintiff does not claim that he was improperly arrested under section 30-22-3. Instead, Plaintiff seems to found his § 1983 claim upon his argument that "the state of New Mexico needs to change this statute and any reasonable officer should have known this." (Pl.Resp. to Defs.' Mot. to Dismiss at 2 (emphasis in original)).

It stretches the imagination to see how a police officer who applies a presumably valid law in a valid fashion could be said to have "violated a person's clearly established constitutional right" of which "any reasonable official would have known." The duty of a police officer is to enforce the laws passed by the legislature, not to question the validity of these laws. A police officer cannot be held liable under § 1983 for properly enforcing the laws the officer is sworn to uphold.

Furthermore, even if section 30-22-3 did not authorize Officer Apodaca to arrest Plaintiff in the circumstances given, "the qualified immunity standard `gives ample room for mistaken judgments' by protecting `all but the plainly incompetent or those who knowingly violate the law.'" Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 343, 341, 106 S.Ct. 1092, 1097, 1096, 89 L.Ed.2d 271 (1986)). Officer Apodaca arrested Plaintiff for concealing his identity after Plaintiff admittedly refused to fully identify himself to Officer Apodaca, who was in the course of lawful traffic stop. Plaintiff has not, and cannot, show that Officer Apodaca violated a well established constitutional right of which a reasonable official would have known when he arrested Plaintiff.

The Tenth Circuit's recent decision in Albright v. Rodriguez, 51 F.3d 1531 (10th Cir. 1995), forecloses the possibility that Plaintiff could recover in this case on the basis of alleged First and Fourth Amendment violations. In Albright, police arrested a man under N.M.Stat.Ann. § 30-22-3 after the man refused to identify himself in the context of a lawful investigative stop. Albright, 51 F.3d at 1532-33. The man subsequently filed a § 1983 action, alleging that the police had no probable cause to arrest him and that his arrest for concealing his identity violated his Fourth Amendment right to be free from unlawful searches and seizures and his first Amendment right "not to speak." Id. at 1534. The Tenth Circuit first held that given the lack of certainty as to whether an officer may constitutionally arrest an individual for the individual's refusal to identify himself in the context of a lawful investigative stop, the plaintiff could not demonstrate "that it would have been apparent to a reasonable officer in March 1992 that arresting Plaintiff for concealing his identity in the context of a lawful investigative stop violated the Fourth Amendment." Id. at 1538. In the case at bar Plaintiff does not contest that he was questioned during the course of a lawful investigative stop. Under Albright, the Fourth Amendment is not a peg upon which Plaintiff can rest his § 1983 action.

Similarly, with regard to the First Amendment, the Albright court determined that "under existing First Amendment law a reasonable officer would not know that he violates the First Amendment by arresting a person who refuses to identify himself during a lawful investigative stop." Id. at 1539. Thus, Albright definitively precludes Plaintiff from recovering under either his First or Fourth Amendment claims.

Furthermore, the Tenth Circuit decision in Pallottino v. City of Rio Rancho, 31 F.3d 1023 (10th Cir.1994), precludes Plaintiff from recovering on the basis of his Fifth Amendment claim. The Tenth Circuit in Pallottino dismissed a § 1983 action brought by an individual who argued that the police arrested him, at least in part, in retaliation for his refusal to give the officer his address. Id. at 1025. The court held that "there is no clearly established right, under the Fifth Amendment, to ignore police requests at the scene of an investigation for a witness's name and address." Id. at 1026. Pallottino dictates that Plaintiff's claim under the Fifth Amendment must fail.

Finally, Plaintiff presents no argument as to how Officer Apodaca's conduct violates a clearly established right under the Fourteenth Amendment. A pro se plaintiff is held to less stringent pleading standards than are attorneys, and a "constitutional claim under § 1983 should not be dismissed unless it appears...