Perez v. City of Albuquerque

• Citation: 2012 -NMCA- 040,276 P.3d 973
• Decision Date: 05 March 2012
• Docket Number: No. 30,263.,30,263.
• Parties: Aaron PEREZ, Plaintiff–Appellant, v. The CITY OF ALBUQUERQUE, N. Sanders, T. Novicki, M. Fisher, and Mayor Martin Chavez, Defendants–Appellees.
• Court: Court of Appeals of New Mexico

276 P.3d 973

2012 -NMCA- 040

Aaron PEREZ, Plaintiff–Appellant,

v.The CITY OF ALBUQUERQUE, N. Sanders, T. Novicki, M. Fisher, and Mayor Martin Chavez, Defendants–Appellees.

No. 30,263.

Court of Appeals of New Mexico.

March 5, 2012.

Joseph P. Kennedy, Kennedy Law Firm, Albuquerque, NM, for Appellant.

Robert D. Kidd, Jr., Acting City Attorney, Kathryn Levy, Deputy City Attorney, City of Albuquerque, Albuquerque, NM, for Appellees.

OPINION

CASTILLO, Chief Judge.

{1} Following a domestic disturbance at his residence, Aaron Perez (Plaintiff) was arrested by three police officers (Officers) employed by the City of Albuquerque (the City). Plaintiff filed suit against the City and the Officers claiming that the Officers used excessive force while he was handcuffed and lying on the ground. A verdict was entered in favor of the Officers and the City. Plaintiff appeals the denial of his motion for directed verdict and motion for judgment notwithstanding the verdict. We affirm.

BACKGROUND

{2} Officers Sanders, Novicki, and Fisher were called to the Plaintiff's residence during the early morning hours of November 28, 2003, based on a report of a domestic disturbance. When Plaintiff became combative, the Officers tackled him to the floor inside the home. The latter part of the arrest was recorded on videotape by Plaintiff's wife, who was his girlfriend at the time. Plaintiff did not immediately complain of injuries, but two months later he sought treatment for a sore neck and back, dizziness, and a bruised ankle.

{3} Plaintiff filed suit against the Officers and the City, alleging assault and battery under the New Mexico Tort Claims Act and claiming use of excessive force in violation of the Fourth Amendment of the United States Constitution. Before trial, Plaintiff filed a motion for summary judgment that was denied by the district court. After evidence was presented at trial, Plaintiff filed a motion for a directed verdict; that, too, was denied by the district court.

{4} At trial, Plaintiff's position was that after he was handcuffed and had stopped resisting, Officer Fisher threatened him with foul language, saying, “I will break your fucking arm[,]” cocked a clenched fist in his face, and grabbed Plaintiff's shirt collar so forcefully as to jerk Plaintiff's head back and forth to the extent that, according to Plaintiff, his head hit the floor. Officer Fisher denied that Plaintiff's head hit the floor. When questioned initially, he could not articulate why he grabbed Plaintiff's collar in such a way after handcuffing him. Later, he stated the following:

[D]ue to his combativeness when he rolled over, I perceived that he was about to kick me [which] was why I grabbed him by the shirt collar. He needed to understand that ... we weren't going to put up with his behavior anymore[,] and he needed to stop what he was doing.

The other two Officers also stated that Plaintiff continued to be combative after being handcuffed, and the amount of force used to subdue him, in general, was necessary to counteract his resistance, get him under control, and prevent him from rolling over and possibly kicking the Officers. Jurors were shown the videotape of the latter portion of the arrest, and they heard testimony from the Officers as well as from Plaintiff and his wife. The videotape was played numerous times during trial, and each witness—all of whom were in the house at the time of Plaintiff's arrest—gave a different account of what was depicted on the videotape, sometimes offering conflicting interpretations of the images.

{5} After deliberation, the jury returned a verdict in favor of the Officers. Pursuant to Rule 1–050 NMRA, Plaintiff moved for judgment notwithstanding the verdict against Officer Fisher. This motion was denied by the district court. We observe that in the same motion, Plaintiff also requested a new trial against the other two officers, but there is no challenge to the denial of that portion of the motion.

DISCUSSION

{6} On appeal, Plaintiff makes two claims. First, he claims that the district court erred in submitting to the jury the question of whether Officer Fisher used reasonable force because there were no disputed facts and the question of reasonableness is one for the court to decide. We understand this to be a challenge to the denial of Plaintiff's motion for a directed verdict. In his second point, Plaintiff maintains that the district court erred in not granting his motion for judgment notwithstanding the verdict.

The District Court Did Not Err in Denying Plaintiff's Motions for Directed Verdict and for Judgment Notwithstanding the Verdict

{7} We review de novo the district court's decisions on the motions for directed verdict. See McNeill v. Burlington Res. Oil & Gas Co., 2008–NMSC–022, ¶ 36, 143 N.M. 740, 182 P.3d 121. “A directed verdict is a drastic measure that is generally disfavored inasmuch as it may interfere with the jury function and intrude on a litigant's right to a trial by jury.” Torres v. El Paso Elec. Co., 1999–NMSC–029, ¶ 26, 127 N.M. 729, 987 P.2d 386,overruled on other grounds by Herrera v. Quality Pontiac, 2003–NMSC–018, 134 N.M. 43, 73 P.3d 181. A district court should not grant a motion for directed verdict unless it is clear that “the facts and inferences are so strongly and overwhelmingly in favor of the moving party that the judge believes that reasonable people could not arrive at a contrary result.” Melnick v. State Farm Mut. Auto. Ins. Co., 106 N.M. 726, 729, 749 P.2d 1105, 1108 (1988).

{8} Plaintiff's argument is straightforward: once he was handcuffed, there was no need for the officers to use any more force, but the officers did use additional force, and the use of any additional force was unreasonable as a matter of law. To support his argument, Plaintiff relies on the videotape of the incident and his reading of the holding in Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). According to Plaintiff, Scott stands for the proposition that when there is a videotape of an incident, the court must view “the facts in the light depicted by the videotape”; thus, the videotape shows clear and uncontradicted proof of the use of additional force. Plaintiff concludes that because the videotape conclusively shows the use of additional force and because Officer Fisher gave no lawful justification for his use of force, there are no material disputed facts about the reasonableness of the officer's actions, and a directed verdict in his favor is proper. Plaintiff's reliance on Scott is misplaced.

{9} In Scott, the plaintiff motorist was injured during a high-speed chase with law enforcement and brought a 42 U.S.C. § 1983 (1996) action alleging use of excessive force resulting in an unreasonable seizure under the Fourth Amendment. Scott, 550 U.S. at 375–76, 127 S.Ct. 1769. Deputy Scott filed a motion for summary judgment that was denied by the district court. Id. at 376, 127 S.Ct. 1769. The United States Supreme Court reversed the denial of summary judgment based on the videotape that had captured the events in question and that “quite clearly contradict[ed] ... the story told by” the plaintiff. Id. at 378, 127 S.Ct. 1769. “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Id. at 380, 127 S.Ct. 1769. Plaintiff contends that there is only one interpretation of the videotape and that no reasonable factfinder could disagree that the Officers acted unreasonably after Plaintiff was handcuffed and...