St. John v. McColley

• Decision Date: 08 September 2009
• Docket Number: No. 08-994 BB/LAM.,08-994 BB/LAM.
• Citation: 653 F.Supp.2d 1155
• Parties: Matthew A. ST. JOHN, Plaintiff, v. David McCOLLEY and The Six Unknown Officers of the Alamogordo Department of Public Safety, each in their individual capacities, Defendants.
• Court: U.S. District Court — District of New Mexico

653 F.Supp.2d 1155

Matthew A. ST. JOHN, Plaintiff, v. David McCOLLEY and The Six Unknown Officers of the Alamogordo Department of Public Safety, each in their individual capacities, Defendants.

No. 08-994 BB/LAM.

United States District Court, D. New Mexico.

September 8, 2009.

COPYRIGHT MATERIAL OMITTED

John R. Hakanson, Miguel Garcia, John R. Hakanson, P.C., Alamogordo, NM, for Plaintiff.

James P. Sullivan, Christina L. Brennan, Brennan & Sullivan, P.A., Santa Fe, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

BRUCE D. BLACK, District Judge.

This matter comes before the Court on cross motions for summary judgment filed by Plaintiff (Doc. 37) and Defendants (Doc. 39). For the reasons set forth below, both Plaintiff's and Defendants' motions for summary judgment are GRANTED in part and DENIED in part.

Factual and Procedural Background

This is a 42 U.S.C. § 1983 case¹ brought by Plaintiff Matthew St. John after he was escorted out of the Aviator 10 Movie Theater in Alamogordo ("Theater") and patted down. Defendants, including David McColley, are Alamogordo police officers who were dispatched to the Theater in response to a call from Theater manager Robert Zigmond. Upon arrival, Mr. Zigmond informed Officer McColley that an individual, later identified as Mr. St. John, had entered the Theater wearing a holstered handgun. Mr. Zigmond directed Officer McColley to the theater where Mr. St. John was watching a movie and requested that Officer McColley "pull him out" because Mr. St. John's firearm was "making [Mr. Zigmond's] customers upset." McColley Depo. 10:18-10:20.

Officer McColley entered the crowded theater accompanied by three other Defendants and, after Mr. Zigmond pointed Mr. St. John out, asked Mr. St. John if he was carrying a firearm. Mr. St. John replied that he was, whereupon Officer McColley instructed Mr. St. John "to keep your hands where I can see them." McColley Depo. 10:18-10:20. Officer McColley told Mr. St. John that he needed to accompany Defendants out of the theater. After Mr. St. John stood up, Officer McColley removed Mr. St. John from the Theater in an escort hold,² securing Mr. St. John's left arm. According to Officer McColley, one of the other three Defendants may have secured Mr. St. John's right arm as he was led out of the Theater. McColley Depo. 15:10-15:13.

Once outside, Officer McColley continued to restrain Mr. St. John's left arm while Defendants removed the gun from Mr. St. John's holster, removed the gun's magazine and cleared a chambered bullet. Defendants then instructed Mr. St. John to place his hands on a nearby wall and proceeded to pat him down. No contraband or additional weapons were found on Mr. St. John and a police database check revealed that he possessed the gun lawfully.

Having taken the weapon, Officer McColley informed Mr. St. John that he could return to the movie if he left the gun in his truck. Mr. St. John agreed and led officers to his truck, where they placed the unloaded gun. Mr. St. John reloaded and recocked the weapon before leaving it in the truck and returning to the Theater for the remainder of the movie. Throughout the incident, which Mr. St. John estimates took approximately thirty minutes, St. John Depo. 118:22, Mr. St. John was, as Officer McColley recalls, "respectful and cooperative." McColley Depo. 16:14.

In September 2008, Mr. St. John filed suit in New Mexico state court alleging Fourth Amendment violations, violations of the New Mexico Constitution, battery, and false arrest. He asserts his federal claims under 42 U.S.C. § 1983 and his state-law claims under the New Mexico Tort Claims Act. Based inter alia on 28 U.S.C. § 1331 and 28 U.S.C. § 1441, Defendants removed this matter in October 2008. Discovery commenced and, in May 2009, both parties filed summary-judgment motions averring that no genuine issues of material fact exist. Mr. St. John seeks an entry of judgment in his favor on all counts. Defendants assert both that Mr. St. John has no cognizable claims and that Defendants are protected from suit by qualified immunity.

Both motions are presently before the Court.

Standard of Review

Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In addressing the parties' motions, the Court must "view the evidence and draw reasonable inferences therefrom in the light most favorable to the non-moving party." Simms v. Oklahoma ex rel. Dep't of Mental Health & Substance Abuse Serv., 165 F.3d 1321, 1326 (10th Cir.1999). The party moving for summary judgment bears the burden of showing that no genuine disputes over material fact exist. See Adams v. American Guarantee and Liability Ins. Co., 233 F.3d 1242, 1246 (10th Cir.2000); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (finding that the movant may satisfy his burden by "pointing out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim"). If the movant meets his burden, the nonmovant must identify evidence that would enable a trier-of-fact to find in the nonmovant's favor. Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.1992). Though this case involves cross-motions for summary judgment, each motion must be considered independently. Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979). The denial of one does not require the granting of the other. Id.

Analysis

1. St. John's Fourth Amendment Claims

Mr. St. John asserts claims arising from the Fourth Amendment's prohibition on unreasonable searches and seizures.³ The Fourth Amendment applies to the states through the Fourteenth Amendment's Due Process Clause, see, e.g., Jones v. Hunt, 410 F.3d 1221, 1225 (10th Cir.2005), and provides, in part: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." U.S. Const. amend. IV. Mr. St. John claims that he was subjected to an unreasonable seizure when Defendants removed him from the Theater and that he was subjected to an unreasonable search when Defendants patted him down. In response, Defendants claim that no Fourth Amendment violation took place and, alternatively, that Mr. St. John's recovery is barred by qualified immunity.

Because Mr. St. John's Fourth Amendment claims and Defendants' responses require the Court to begin by determining whether Mr. St. John has stated a viable cause of action, the Court will do so before turning to qualified immunity.

St. John's Claim for Unreasonable Seizure

Mr. St. John contends that Defendants unreasonably seized him by "grabbing his arms and escorting him out of the movie theater." (Doc. 1, Exhibit 1 at ¶ 21). A seizure under the Fourth Amendment occurs when "a reasonable person would have believed that he was not free to leave." Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.)). In determining whether a person has been seized, this Court employs the factors set forth by the Tenth Circuit in United States v. Hill, 199 F.3d 1143 (10th Cir. 1999). Those factors, which are non-exclusive, see, e.g., United States v. Griffin, 7 F.3d 1512, 1518 (10th Cir.1993), require the Court to consider:

1) the threatening presence of several officers; 2) the brandishing of a weapon by an officer; 3) some physical touching by an officer; 4) use of aggressive language or tone of voice indicating that compliance with an officer's request is compulsory; 5) prolonged retention of a person's personal effects ...; 6) a request to accompany the officer to the station; 7) interaction in a nonpublic place or a small, enclosed place; 8) and absence of other members of the public.

Fuerschbach v. Southwest Airlines Co., 439 F.3d 1197, 1203 (10th Cir.2006) (citing Hill, 199 F.3d at 1147-8). While no one Hill factor is dispositive, see, e.g., United States v. Glass, 128 F.3d 1398, 1406 (10th Cir.1997), we begin with Hill in assessing whether a seizure has taken place. As part of our assessment, we consider the totality of circumstances, but remain aware that the strong presence of two or three factors may sufficiently demonstrate that a seizure has occurred. United States v. Shareef, 100 F.3d 1491, 1505 (10th Cir. 1996); Jones, 410 F.3d at 1226.

Applying the Hill factors, it is evident that Mr. St. John was seized. While watching a movie, Mr. St. John was approached by four armed officers who instructed him to stand up and accompany them out of the Theater. When Mr. St. John rose, Defendants restrained his arm(s) and led him outside, away from the crowd, where they continued to restrain him until they had removed his lawfully possessed weapon. At his deposition, Officer McColley testified that, had Mr. St. John asked Defendants to release him, he "wouldn't [have felt] safe letting [Mr. St. John] go at that point."⁴ McColley Depo. 13:21-13:32. While outside, Defendants removed Mr. St. John's wallet and handgun. They ran a check on the latter and only returned it at the end of their encounter. Because, from the time that Defendants approached Mr. St. John to the time when they physically released him, Mr. St. John reasonably believed that he was not free to leave, a seizure occurred.

But the inquiry does not end there. The Fourth Amendment does not protect individuals from all seizures—only unreasonable seizures. See, e.g., United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). Under the Fourth Amendment, seizures such as Mr. St. John's, termed investigatory detentions, are reasonable if they are (1) justified at their inception and (2)...