Quezada v. County of Bernalillo

• Decision Date: 09 September 1991
• Docket Number: No. 90-2014,90-2014
• Parties: Lucy QUEZADA, as personal representative of the ESTATE OF Berlinda Griego, deceased, Plaintiff-Appellee, v. The COUNTY OF BERNALILLO; Patrick Sauser; Alvin J. Campbell, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 710

944 F.2d 710

20 Fed.R.Serv.3d 1119

Lucy QUEZADA, as personal representative of the ESTATE OF Berlinda Griego, deceased, Plaintiff-Appellee, v. The COUNTY OF BERNALILLO; Patrick Sauser; Alvin J Campbell, Defendants-Appellants.

No. 90-2014.

United States Court of Appeals Tenth Circuit.

Sept. 9, 1991.

Elizabeth E. Simpson, Tomita & Simpson, P.C. (Thomas R. Logan, of Tomita & Simpson, P.C., and John R. Tiwald, with her on the brief), Albuquerque, N.M., for plaintiff-appellee.

James M. Kennedy, Asst. Atty. Gen., Santa Fe, N.M., for defendants-appellants.

Before MOORE, ANDERSON and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

This case is about the shooting death of a woman by a sheriff's deputy and the efforts of her mother to recover damages under federal and state law. The lawsuit for this alleged wrongful death was tried in federal district court in New Mexico after the mother, Lucy Quezada (hereinafter Quezada or Plaintiff), filed a complaint on behalf of the estate of her daughter Berlinda Griego under one of the major federal civil rights laws, 42 U.S.C. § 1983, as well as New Mexico tort law. She was awarded over $1,240,000 in damages following a bench trial. The Defendants, including Bernalillo County, Sheriff Alvin Campbell and Deputy Sheriff Patrick Sauser (hereinafter Defendants), appeal. We affirm in part, reverse in part and remand.

I. BACKGROUND

In the early hours of December 20, 1986, Berlinda Griego was the sole occupant of a car parked in a parking lot behind a building in Albuquerque, New Mexico. Deputy Sheriff Ramona Martin noticed the car in the lot and investigated after radioing dispatch. Deputy Martin parked in front of the car and saw Ms. Griego put her head down on the steering wheel. When Ms. Griego did not respond to her waving spotlight, Deputy Martin stepped out of her vehicle and up to Griego's car window and rapped on it several times. Ms. Griego reluctantly rolled her window down just a few inches but refused Martin's request to produce her driver's license, telling Martin "I'm not doing anything."

Deputy Sauser heard Martin's radio transmission and was the second officer to arrive at the scene. He also parked in front of Griego's car. Sauser joined Martin and together they tried to convince Griego to roll her window down more and respond. Griego, however, was not cooperating. She tried to roll her window up but was stopped when Deputy Martin put her flashlight in the window frame. The flashlight prevented the window from completely closing. Both deputies then saw Griego pick up a pistol. Deputy Sauser saw Griego load the weapon with a magazine containing bullets. Just before Griego picked up the gun a third sheriff's deputy, Brian Murphy, arrived. He also saw the gun and witnessed its loading.

In response to Griego's actions all three deputies drew their weapons. Deputies Martin and Murphy took cover. Deputy Sauser, on the other hand, moved only a few feet away from Griego's car. He stayed close and ordered Griego to put her gun down. Griego responded to Sauser's orders by saying, "Leave me alone, I want to kill myself." She placed the muzzle of the gun to her right temple. Then she started waving the weapon from the point of her right temple to her mouth. She also inserted the muzzle of the weapon inside her mouth.

At this point all the deputies realized Griego was suicidal. Deputy Sauser lowered his gun to a position behind his right leg. In addition, all the officers knew Griego was drinking. In fact, Deputy Sauser saw Griego lower her gun to take a drink of beer. Deputy Murphy also observed Griego drinking and Deputy Martin testified she smelled alcohol through the propped-open window of the car. At various times, all the deputies told Griego to drop her weapon and get out of the car. Deputy Sauser testified he asked Griego to step out of her car so he could talk with her about her problems.

Griego was still not cooperating when she put her car in gear and tried to slowly maneuver around the police cars and drive away. In response, Deputy Murphy moved his car, blocking the exit and trapping Griego in the parking lot. The deputies continued to tell Griego to drop the gun. Deputy Sauser testified Griego pointed her gun at him once before she tried to drive away. In response, he raised his weapon to a ready position and asked her to put the gun down. He described Griego's movements as "lackadaisical" and "aimless," and said she only pointed the gun in his "general direction."

Deputy Sauser positioned himself about five feet from Griego's car door after she stopped the car, picking a spot to stand where he thought Griego would not be able to see him. Various lights from the police vehicles were trained on Griego, in addition to the flashlight that was stuck in her window, and Deputy Sauser testified he thought it was difficult for Griego to see where he was standing. Griego's movements, according to Sauser, continued to be "aimless" until at one point she "turned abruptly, [and] aimed the weapon at me." Sauser said she "lowered her head and sighted," causing him to believe his life was in jeopardy. In response to this movement, Sauser fired three times. Two bullets struck Griego, mortally wounding her.

Both the other deputies observed the movement by Griego that prompted Deputy Sauser to shoot her. Deputy Murphy described it as a "movement toward Officer Sauser." Deputy Martin recalled that Griego "moved slightly forward in her seat, [and] turned her upper torso towards Officer Sauser's direction." Martin believed she yelled out a warning in response to Griego's actions.

After the shooting Griego was pulled from the car. Deputy Murphy remembered Griego saying "I can't believe you shot me." Deputy Martin likewise heard Griego speak and described her tone as one of "disbelief." Deputy Martin said Griego was struggling and trying to pull away when she was taken from the car, and Martin handcuffed her from the rear. Deputy Murphy also remembered Griego struggling, but noted she "wasn't very strong at that time." Only seven minutes elapsed from the time of Martin's first radio report until an ambulance was called after the shooting.

II. DISTRICT COURT PROCEEDINGS

Plaintiff sued Bernalillo County, Sheriff Campbell, and Deputy Sheriff Sauser on behalf of her deceased daughter. Plaintiff claimed Sauser violated her daughter's Fourth and Fourteenth Amendment rights by using excessive force. She further claimed Sheriff Campbell failed to train his deputies and accused the County of tolerating excessive force by its deputies. She alleged Sheriff Campbell and the County also violated the Fourth and Fourteenth Amendments. Her state law claim, in essence, charged all the Defendants with wrongful death due to negligence and assault, battery and abuse of process.

Following a trial without a jury the district court entered judgment for Plaintiff on her federal civil rights claim against Deputy Sauser, and against Deputy Sauser, Sheriff Campbell and Bernalillo County on her state wrongful death claim. The court awarded $1,243,876 in damages.

In its written fact findings, the district court said Deputy Sauser voluntarily and negligently placed himself in a position of peril where he had no choice other than to use deadly force. The court found Sauser's negligence was the proximate cause of Griego's death and found that, but for his negligence, deadly force would not have been required. Based on these findings the court concluded, as a matter of law, that Sauser violated Griego's Fourth and Fourteenth Amendment rights. It also ruled against Sauser under the New Mexico Tort Claims Act.

The court then ruled against Sheriff Campbell and Bernalillo County on Plaintiff's New Mexico claims. The court found Sheriff Campbell negligently trained deputies. It further found the County negligent under New Mexico Law for failing to institute policies and procedures to deal with potential suicides. However, the court exonerated the County on Griego's federal claim, concluding the County was not deliberately indifferent in training employees. There was no mention in the court's conclusions of the federal claim against Sheriff Campbell.

III. DISCUSSION

Defendants make six arguments on appeal. First, they argue the trial court erred in determining Deputy Sauser violated Griego's Fourth and Fourteenth Amendment rights. Second, they say Sheriff Campbell and Bernalillo County are not liable under the New Mexico Tort Claims Act because there was no waiver of sovereign immunity from suit. Third, they contend the district court did not apply the doctrine of comparative negligence. Fourth, they take issue with the New Mexico Tort Claims Act damages awarded Plaintiff. Fifth, they believe the district court erred in computing damages for the lost income and value of Ms. Griego's life. And finally, Defendants argue the trial court erred in awarding Plaintiff litigation costs including expert witness fees. We discuss each issue as necessary.

A. Whether the District Court erred in concluding Deputy Sauser violated Ms. Griego's right to be free from excessive force under the Fourth and Fourteenth Amendments

We begin by noting that Plaintiff brings her Fourth and Fourteenth Amendment claim against Deputy Sauser through 42 U.S.C. § 1983, the federal civil rights statute authorizing civil lawsuits to protect federal rights. ¹

A word is called for about the breadth of § 1983. The law creates no rights and is not a carte blanche statute authorizing recovery for negligence or other common law torts standing by themselves. Indeed, in order to recover in federal court through § 1983 a plaintiff must show: (1) a federal constitutional right was violated; and (2) the individual violating the constitutional right did so under color of law. Wise v. Bravo, 666 F.2d 1328, 1333 (10th Cir.1981). The civil rights law is not a general tool to discipline local law enforcement officers. Id.; Stringer v....