Perez v. City of Albuquerque, 30,263.
| Docket Nº | No. 30,263. |
| Citation | 2012 -NMCA- 040, 276 P.3d 973 |
| Case Date | March 05, 2012 |
| 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.
[276 P.3d 974]
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.
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
[276 P.3d 975]
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...
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Benavidez v. Shutiva, 33,300.
...on one's interpretation of that movement.{27} Perez v. City of Albuquerque presents a more analogous use of a video. 2012–NMCA–040, 276 P.3d 973. In that case, this Court assessed the propriety of a denial of a motion for directed verdict where the defendant argued that “there [wa]s only on......
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Paez v. Burlington N. Santa Fe Ry., No. 32,105.
...judgment." (internal quotation marks and citation omitted)). Relying as well upon Perez v. City of Albuquerque, 2012–NMCA–040, ¶ 9, 276 P.3d 973, which discusses Scott, BNSF contends that as a matter of law, the district court is not required to accord weight to testimony presented when it ......
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State v. Kant, NO. 30,581
...threatens to interfere with the jury's function and one's right to a trial by jury. See Perez v. City of Albuquerque, 2012-NMCA-040, ¶ 7, 276 P.3d 973. A trial court should not grant a motion for directed verdict unless it is clear that "the facts and inferences are so strongly and overwhel......
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Bigelow v. Larry H. Miller Corp.-Albuquerque, A-1-CA-38562
...law "is an objection to the sufficiency of the evidence to support the jury's verdict." Perez v. City of Albuquerque, 2012-NMCA-040, ¶ 11, 276 P.3d 973 (internal quotation marks and citation omitted). "The sufficiency of evidence presented to support a legal claim or defense is a question o......
-
Benavidez v. Shutiva, 33,300.
...on one's interpretation of that movement.{27} Perez v. City of Albuquerque presents a more analogous use of a video. 2012–NMCA–040, 276 P.3d 973. In that case, this Court assessed the propriety of a denial of a motion for directed verdict where the defendant argued that “there [wa]s only on......
-
Paez v. Burlington N. Santa Fe Ry., 32,105.
...judgment." (internal quotation marks and citation omitted)). Relying as well upon Perez v. City of Albuquerque, 2012–NMCA–040, ¶ 9, 276 P.3d 973, which discusses Scott, BNSF contends that as a matter of law, the district court is not required to accord weight to testimony presented when it ......
-
State v. Kant, 30,581
...threatens to interfere with the jury's function and one's right to a trial by jury. See Perez v. City of Albuquerque, 2012-NMCA-040, ¶ 7, 276 P.3d 973. A trial court should not grant a motion for directed verdict unless it is clear that "the facts and inferences are so strongly and overwhel......
-
Bigelow v. Larry H. Miller Corp.-Albuquerque, A-1-CA-38562
...law "is an objection to the sufficiency of the evidence to support the jury's verdict." Perez v. City of Albuquerque, 2012-NMCA-040, ¶ 11, 276 P.3d 973 (internal quotation marks and citation omitted). "The sufficiency of evidence presented to support a legal claim or defense is a question o......