Price v. Whitten, CIV 20-1099 RB/KRS

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Decision Date18 August 2021
Docket NumberCIV 20-1099 RB/KRS

MARK PRICE, Plaintiff,


No. CIV 20-1099 RB/KRS

United States District Court, D. New Mexico

August 18, 2021



This matter arises out of an argument between Mark Price and his aunt while they were together in a car. Another relative who overheard the argument via cell phone grew concerned and called the Las Cruces Police Department (LCPD) to request a welfare check. Defendant Francis Whitten, an officer with the LCPD, responded to the call and drove to Price and his aunt's home address. Officer Whitten called Price's aunt. She informed him that she argued with her nephew, he was no longer with her in the car, she was okay, and she did not want police involvement.

Whitten encountered Price in his front yard. Without confirming Price's identity, Whitten ordered Price to stop and talk, but Price ignored him. Whitten grabbed at Price, who told the officer to get off his property. Whitten said that he had a right to stay on the property, took out his taser, and commanded Price to lay on the ground. When Price refused, Whitten tased him, causing injury. Whitten arrested Price for resisting, evading, or obstructing an officer pursuant to N.M. Stat. Ann. § 30-22-1(B). The criminal case was later dismissed.

Price now alleges a variety of state and federal claims against Whitten, the City of Las Cruces, [1] and LCPD supervisor Thaddeus Allen. Defendants move for dismissal of three claims: retaliatory arrest under the First Amendment, trespass, and violations of the New Mexico Constitution. For the reasons discussed herein, the Court will grant the motion in part.

I. Statement of Facts

On July 27, 2020, Mark Price and his aunt had an argument while driving together in a car. (Doc. 1 (Compl.) ¶ 12.) Price's aunt “pocket-dialed” another relative, who overheard the argument and called the LCPD for a welfare check. (Id. ¶¶ 13-14.) Officer Whitten responded to the call. (Id. ¶ 15.) “Whitten had no indication that the call involved violence” or “that any crime had been committed.” (Id. ¶¶ 16-17.) Whitten first drove to Price's and his aunt's home address. (Id. ¶¶ 1819.) He then called Price's aunt, who “did not sound upset[, ]” “gave no indication there had been violence[, ]” and assured him that she was okay. (Id. ¶¶ 19-21, 24.) The aunt informed Whitten that she was not at home and that Price was not with her in the car. (Id. ¶ 22.) She stated that she and Price had argued, and he can “be loud when he is angry.” (Id. ¶¶ 22, 24.) When Whitten asked her what Price was wearing, she responded “that she did not want the police involved.” (Id. ¶ 23.)

Whitten then saw Price, whom Whitten had not yet identified, walk to his front door. (Id. ¶ 25.) Whitten, who was standing in Price's front yard, ordered Price to stop and talk. (Id. ¶ 26.) Price ignored Whitten and continued toward the garage. (Id. ¶ 27.) Whitten grabbed at Price. (Id. ¶ 28.) Price told Whitten not to touch him and to get off his property. (Id. ¶¶ 29-30.) Whitten replied that he had a right to be on the property. (Id. ¶ 32.) He unholstered his taser and commanded Price to lie on the ground. (Id. ¶ 33.) Price asked why Whitten was there, and Whitten said “that he was there for a ‘domestic.'” (Id. ¶ 34.) Whitten continued to hold Price at taser point, while a second officer “drew his firearm to provide ‘lethal coverage' for [Officer] Whitten.” (Id. ¶ 36.) Whitten again told Price to get on the ground, and Price refused to comply. (Id. ¶¶ 37-38.) Whitten tased Price. (Id.¶ 39.) One of the taser prongs hit him in the wrist and the other lodged in his testicles, requiring later removal at a hospital. (Id. ¶ 40, 45.) Whitten handcuffed Price on the grounds that “he was not cooperating.” (Id. ¶ 41 (quotation marks omitted).) Allen, Whitten's supervisor, arrived on the scene after the use of force. (Id. ¶ 46.) Whitten told Allen about the events leading up to the use of force, and “Allen approved of . . . Whitten's plan to arrest Mr. Price and incarcerate him at the detention center.” (Id. ¶¶ 47-48.) Whitten filed a criminal complaint charging Price with resisting, evading, or obstructing an officer pursuant to N.M. Stat. Ann. § 30-22-1(B). (Id. ¶ 49.)

Price stayed at the detention center “overnight until the Court released him the next day.” (Id. ¶ 50.) The court dismissed the criminal case against Price on October 22, 2020, because Whitten failed to appear for the pretrial conference. (Id. ¶ 54.) Price filed this lawsuit against Whitten, Allen, and Las Cruces on October 26, 2020, and asserts that Whitten “filed the criminal complaint without probable cause.” (Id. ¶ 51.) He maintains that Whitten “wrongfully swore in the complaint that he had been dispatched to a domestic violence call” and “intentionally omitted exculpatory information, ” i.e., “that the Officers had no lawful authority to issue the commands or detain Mr. Price.” (Id. ¶¶ 52-53.) Price asserts twelve claims[2] against the Defendants, only three of which are at issue in this motion to dismiss: Count 3: retaliatory arrest in violation of the First Amendment; Count 10: trespass; and Count 11: violations of the New Mexico Constitution, including unreasonable search and seizure, excessive force, and retaliatory arrest. (See Compl. at 9, 12-13.)

II. Legal Standards

A. Motion to Dismiss

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Emps.' Ret. Sys. of R.I. v. Williams Cos., 889 F.3d 1153, 1161 (10th Cir. 2018) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quotation omitted). The Court will “accept as true ‘all well-pleaded factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.'” Schrock v. Wyeth, Inc., 727 F.3d 1273, 1280 (10th Cir. 2013) (quotation omitted).

B. Qualified Immunity

“In assessing a qualified immunity defense” in the context of a motion to dismiss, the Court “must determine whether the plaintiff pled facts indicating: (1) the defendant violated a statutory or constitutional right and (2) that right was ‘clearly established' at the time of the challenged conduct.” Crall v. Wilson, 769 Fed.Appx. 573, 575 (10th Cir. 2019) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). Courts may address the prongs of this analysis in either order; if the plaintiff fails to meet his burden on either prong, the defendant prevails. See Cummings v. Dean, 913 F.3d 1227, 1239 (10th Cir.), cert. denied, Cummings v. Bussey, 140 S.Ct. 81 (2019).

III. Count 3: Retaliatory Arrest

Price brings his claim for retaliatory arrest against Whitten under 42 U.S.C. § 1983. (Compl. ¶¶ 72-76.) He asserts that Whitten had no reasonable suspicion to question him and no probable cause to arrest him for resisting, evading, or obstructing an officer under N.M. Stat. Ann. § 30-22-1(B). (Id.; see also Doc. 8.) Price further contends that Whitten arrested him because he lawfully refused to speak to Whitten and/or follow Whitten's unlawful orders, and, thus, that Whitten arrested him in retaliation for exercising his right under the First Amendment to decline to engage in a consensual encounter. (Compl. ¶¶ 72-76; Doc. 8.) Generally, “[t]he plaintiff pressing a retaliatory arrest claim must plead and prove the absence of probable cause for the arrest.” Nieves v. Bartlett, 139 S.Ct. 1715, 1724 (2019). If the plaintiff “establishes the absence of probable cause, ‘then . . . [he] must show that the retaliation was a substantial or motivating factor behind the [arrest], and, if that showing is made, the defendant can prevail only by showing that the [arrest] would have been initiated without respect to retaliation.'” Id. at 1725 (quoting Lozman v. City of Riviera Beach, Fla., 138 S.Ct. 1945, 1952-53 (2018)).

The briefing on this claim is somewhat muddled. Defendants base their motion on the position that Whitten had reasonable suspicion to engage Price in an investigative detention at his home. (See Doc. 4 at 9-12.) They argue that Price cannot show clearly established law “that an individual has a First Amendment right to refuse to answer an officer's questions during a Terry stop.” (Id. at 12 (citations omitted).) Price responds that there was no reasonable suspicion for an investigative detention, because “even a reliable tip about an argument alone does not create reasonable suspicion of a crime without some kind of additional evidence of unlawfulness.” (Doc. 8 at 5 (citations omitted).) He argues that it is clearly established in the Tenth Circuit that an officer cannot arrest an individual for refusing to answer an officer's questions during a consensual encounter; thus, Whitten is not entitled to qualified immunity. (See Doc. 8 at 5-6.) But this assertion touches only upon the Fourth Amendment violation and is not the appropriate inquiry for the alleged First Amendment violation. As Defendants argue, Price's burden is to show “on-point, published, clearly established law that squarely governs the facts of this case.” (Doc. 15 at 3; see also Doc. 12 at 4-6.) Here, the dispositive question is whether it is clearly established that an officer who arrests an individual for refusing to answer questions during a consensual encounter not only violates the Fourth Amendment, but also violates the First Amendment. Price has not cited any authority to establish that “the contours of [his right under the First Amendment were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Holland ex...

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