Romero v. Sanchez, 21752

• Docket Nº: No. 21752
• Citation: 1995 NMSC 28, 119 N.M. 690, 895 P.2d 212
• Case Date: April 24, 1995
• Court: Supreme Court of New Mexico

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895 P.2d 212 119 N.M. 690 Leroy ROMERO, Plaintiff-Appellant,
v.
Paul SANCHEZ, Defendant-Appellee. No. 21752. Supreme Court of New Mexico. April 24, 1995.

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[119 N.M. 691] Grisham & Lawless, P.A., Thomas L. Grisham, Albuquerque, for appellant.

Carpenter, Comeau, Maldegen, Brennan, Nixon & Templeman, Joseph E. Manges, Santa Fe, for appellee.

OPINION

RANSOM, Justice.

Leroy Romero sued State Police Officer Paul Sanchez under 42 U.S.C. Sec. 1983 (1988) and the New Mexico Tort Claims Act, NMSA 1978, Secs. 41-4-1 to -27 (Repl.Pamp.1989 & Cum.Supp.1994). Romero asserted causes of action based on criminal trespass, assault, false imprisonment and unlawful detention, and burglary and larceny. He also claimed that Officer Sanchez committed breaking and entering, an unlawful search, and violation of property rights. The district court granted the motion of Officer Sanchez for summary judgment because no genuine issue of material fact exists with respect to Romero's claims of assault, false imprisonment, burglary, larceny, and breaking and entering and because Officer Sanchez is entitled to qualified immunity. Romero appeals.

In an opinion filed August 9, 1994, we affirmed the trial court on the counts of criminal trespass, assault, false imprisonment and unlawful detention, and burglary and larceny; and we reversed the trial court on the counts of breaking and entering, unlawful search, and violation of property rights. Sanchez moved for a rehearing, which we granted. On rehearing, after reviewing additional briefs filed at our request and with the benefit of oral argument, we now believe that our original ruling was in error. We therefore withdraw the original opinion and substitute

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[119 N.M. 692] this opinion affirming the trial court in full.

Standard of review. In Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), the United States Supreme Court held that public officials performing discretionary functions enjoy a qualified immunity when "their conduct does not violate clearly established [law] of which a reasonable person would have known." This immunity extends to law enforcement officers. Malley v. Briggs, 475 U.S. 335, 340, 106 S.Ct. 1092, 1095-96, 89 L.Ed.2d 271 (1986) (stating that police officers are entitled to qualified immunity in Sec. 1983 suits). A finding of qualified immunity shields the officer from suit, not just from liability for monetary damages. Oldfield v. Benavidez, 116 N.M. 785, 789, 867 P.2d 1167, 1171 (1994); accord Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815-16, 86 L.Ed.2d 411 (1985) (stating that qualified immunity "is an immunity from suit rather than a mere defense to liability").

As the Supreme Court acknowledged in Harlow, using the objective reasonableness standard to determine qualified immunity issues "permit[s] the resolution of many insubstantial claims on summary judgment." 457 U.S. at 818, 102 S.Ct. at 2738. Under the Harlow standard "we examine whether the [party opposing summary judgment] has presented evidence to support a violation of clearly established law." Carrillo v. Rostro, 114 N.M. 607, 615, 845 P.2d 130, 138 (1992); see also Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815 (stating that "[u]nless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal"); Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir.1995) (same). On a summary judgment motion the issue is an "essentially legal question whether the conduct of which the plaintiff complains violated clearly established law." Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815.

Thus under Harlow, Mitchell, and Carrillo, determining whether summary judgment is appropriate based upon a defense of qualified immunity requires a two-step analysis. First, a court must look at the undisputed facts and those facts adduced by the party opposing summary judgment to see if there is any evidentiary support for finding a possible violation of law. Second, if the law may have been violated, a court must ask if that law was clearly established at the time of the alleged violation. See, e.g., Emery v. Holmes, 824 F.2d 143, 147 (1st Cir.1987) (applying two-step analysis to summary judgment motion in case involving qualified immunity defense); Abouzari v. Foster, 795 P.2d 1386, 1389 (Colo.Ct.App.1990) (same).

Facts. The undisputed facts and the evidence presented by Romero include the following. On February 20, 1992, Romero enlisted the aid of some friends to help him move his mobile home to a lot he owned. Before the home could be moved entirely onto Romero's lot, Romero determined that he should obtain the assistance of a towing company because he feared that his mobile home might become stuck or "high-centered." He called several towing companies and eventually got a response from Highland Wrecker Service and Body Shop.

Highland gave Romero a telephone estimate that the job would cost $50 to $55. Romero agreed to this price and Highland sent a driver to Romero's lot to complete the job. It took several hours and two Highland drivers to move the mobile home completely onto Romero's lot. While Highland was trying to complete the job, the home hit a post causing some damage; the right-side tires became flat, the axle underneath the mobile home became bent, and the frame was damaged. After some negotiation, and before unhooking the home, Highland sought payment of $200 for the tow job. Romero refused to pay because he wanted to assess the damage that Highland had caused. Romero asked the Highland drivers, including Steve Lucero, to leave, but Lucero refused to leave until he had been paid.

Romero left his property to go call a sheriff for help in getting Lucero to leave. While Romero was gone, Lucero called the New Mexico State Police. Before Romero returned, Officer Sanchez responded to Lucero's call. When Romero returned he discovered that either Lucero or Officer Sanchez

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[119 N.M. 693] had broken the lock on his mobile home, that both Lucero and Officer Sanchez had entered the home, and that Lucero was searching through Romero's possessions. Romero was visibly upset by these discoveries.

The first time Romero came into contact with him, Officer Sanchez was in the living room of Romero's home. Officer Sanchez's badge and gun were plainly visible during the whole encounter. Romero asked Officer Sanchez what was going on and accused Officer Sanchez and Lucero of "breaking and entering." Officer Sanchez responded by saying "No, we're not" and "this man [meaning Lucero] is going to get paid."

Shortly thereafter Officer Sanchez escorted Romero from his home. Once outside, Romero asked if he could leave. Officer Sanchez told Romero that he would have to stay on the premises until Lucero had finished and that Romero would then have to sign some papers. The papers Officer Sanchez was referring to were a release indicating that Romero understood that the items Lucero removed from the mobile home were being kept as collateral for the unpaid towing bill. After approximately fifteen to twenty-five minutes, Lucero emerged with a television set, a microwave oven, and a vacuum cleaner. While waiting for Lucero to finish selecting items for collateral, Officer Sanchez watched Romero, and Romero says Officer Sanchez had his hand on his gun the entire time. Officer Sanchez admits to having his arm or elbow on his gun and also states that this is his standard practice when dealing with the public.

The trial court properly dismissed the trespass, assault, false imprisonment, unlawful detention, and burglary and larceny claims because Sanchez did not violate the law. The facts demonstrate that Officer Sanchez had a right to be on Romero's property. As a police officer, Sanchez had a duty to be a "conservator[ ] of the peace." NMSA 1978, Sec. 29-2-18(A) (Repl.Pamp.1994). Officer Sanchez was dispatched to the scene of a private dispute. When he arrived, Romero was not there. Lucero told Officer Sanchez that Romero had refused to pay for a towing job and that he feared Romero might have left to get a weapon. Based upon these facts, Officer Sanchez had a duty to investigate further, see...