Stevenson v. City of Albuquerque

Decision Date18 April 2020
Docket NumberNo. CIV 17-855 JB\LF,CIV 17-855 JB\LF
PartiesTERRICIA A. STEVENSON, as Guardian ad Litem and Conservator of MAJESTIC HOWARD, Individually, and as Guardian of MAJESTIC HOWARD, JR., and KARISMA STRONG, Plaintiff, v. CITY OF ALBUQUERQUE, OFFICER JONATHAN FRANCO, individually, OFFICER BEN DAFFRON, individually, OFFICER JOSHUA CHAFIN, individually, OFFICER SONNY MOLINA, individually, Defendants.
CourtU.S. District Court — District of New Mexico

THIS MATTER comes before the Court on Officer Franco's Motion for Summary Judgment Based on Qualified Immunity, filed January 15, 2020 (Doc. 122)("MSJ"). The Court held a hearing on February 19, 2020. See Clerk's Minutes at 1, filed February 19, 2020 (Doc. 132). The primary issue is whether Defendant Jonathan Franco violated Majestic Howard's clearly established rights under the Fourth Amendment to the Constitution of the United States when he administered a knee strike to Howard's head while arresting Howard. The Court concludes that, although Franco violated Howard's Fourth Amendment rights, the Plaintiff Terricia A. Stevenson, as guardian ad litem and conservator of Majestic Howard, and guardian of Majestic Howard, Jr., and Karisma Strong ("Plaintiffs"), has not demonstrated that those rights are clearly established. Accordingly, the Court grants the MSJ.


The Court draws the factual background from the parties' undisputed material facts in: (i) the MSJ; (ii) Plaintiffs' Response in Opposition to Officer Franco's Motion for Summary Judgment Based on Qualified Immunity [Doc. 122], filed Jan. 31, 2020 (Doc. 126)("Response")1; and (iii) Officer Franco's Reply to Plaintiff's Response to Defendant's Motion for Summary Judgment Based on Qualified Immunity, filed February 15, 2020 (Doc. 129)("Reply").

On October 30, 2015, Howard attempted to steal a bait vehicle2 that Defendant City of Albuquerque owns. See MSJ ¶ 1, at 2 (asserting that, on "October 30, 2015, the Plaintiff attempted to steal an . . . APD[] bait car")(citing Incident Report of October 30, 2015, at 2 filed Jan. 15, 2020 (Doc. 122-4)("Incident Report").3 With Albuquerque Police Department ("APD") officerspursuing, APD Dispatch eventually disabled the bait vehicle on Hazeldine Avenue in Southwest Albuquerque, New Mexico. See MSJ ¶ 2, at 2 (citing Incident Report at 3).4 Howard exited thevehicle and briefly placed his hands in the air, before fleeing from the officers on foot. See MSJ ¶ 4, at 3 (asserting this fact)(citing Bait Car Video at 2:00).5 Howard placed something into hismouth before fleeing. See MSJ ¶ 3, at 3 (citing Bait Car Video at 2:42); Response ¶ 3, at 3 (stating that the Plaintiffs "admit[] Undisputed Fact No. 3"). Officers pursued Howard on foot, with Franco closest to Howard. See MSJ ¶ 6, at 3 (asserting that Franco reached Howard before the other officers)(citing Franco Depo. at 40:2-6).6

Just as Franco was closing, Franco shouted "Stop or you'll get shot!," and Howard stopped and sat or knelt. See Response ¶ 5, at 2 (citing Franco Lapel Video at 7:08-7:13).7 Less than twoseconds after Howard stopped running, Franco reached Howard and immediately struck Howard's face, and Howard went from a sitting or a kneeling position to a lying position. See MSJ ¶ 6, at 3 (citing Franco Depo. at 40:2-6); Response ¶ 5, at 2 (citing Franco Lapel Video at 7:08-7:13).8

When Howard was prone, several officers surrounded him immediately, and Howard's right hand was pinned underneath his body such that the officers could not see his hand. See MSJ ¶ 7, at 3 (citing Franco Depo. at 41:16-19); Response ¶¶ 7, 14 at 3, 5 (citing Jones Lapel Video at 2:20-2:26).9 Franco viewed his inability to see Howard's hand as a potential threat to his and other officers' safety. See MSJ ¶ 7, at 3 (citing Franco Depo. at 52:13-24).10

Franco "weighs 220 pounds and is fit." MSJ ¶ 7, at 3 (citing Franco Depo. at 39:7-18); Response ¶ 8, at 3 (admitting this fact).11 As officers shouted for Howard to yield his right hand,Franco delivered a single knee strike to the left side of Howard's head. See Response ¶ 9, at 3 (citing Jury Report at 3).12 Shortly thereafter, officers secured both of Howard's hands and tookhim into custody. See MSJ ¶ 10, at 3 (stating this fact); Response ¶ 10, at 4 (admitting this fact). Eleven seconds elapsed from the time Franco first made physical contact with Howard to the time officers had secured both of Howard's hands. See MSJ ¶ 11, at 4 (citing Jones Lapel Video at 2:16-2:27); Response ¶ 11, at 4 (admitting this fact).

After the officers handcuffed Howard, Howard's head was hanging into a wet gutter and he appeared to be unconscious, so officers moved him away from the gutter to ensure he could breathe. See Response ¶ 26, at 6 (citing Jones Lapel Video at 3:06-3:21).13 Howard' breathing was labored, and Franco interpreted Howard's labored breathing to signal that Howard was in pain. See Response ¶¶ 22-23, at 6 (stating this fact)(citing Franco Depo. at 84:2-85:5; id. at 85:16-25).14Howard was injured in the arrest, and he was bleeding into the gutter. See Response ¶ 19, at 5 (citing M. Jones Interview at 8:55-9:13; Audio of Confidential Interview of Sergeant Aaron at 8:21-9:09, filed Jan. 31, 2020 (Doc. 127-3)("A. Jones Interview"); Howard Aff. ¶¶ 8-10, at 2).15

After Howard's arrest, officers later found a handgun and heroin in the bait vehicle from which Howard fled, although Franco was unaware of the heroin and handgun until after Howard's arrest. See MSJ ¶ 2, at 2 (citing Incident Report at 3).16 APD officers also photographed Howardto document his injuries. See MSJ ¶ 10, at 3 (citing Photographs of Majestic Howard at 1-2, filed Jan. 15, 2020 (Doc. 122-6)); Response ¶ 10, at 4 (admitting this fact). The photographs show cuts and abrasions on Howard's face and head.17 Paramedics examined Howard after the incident, but APD officers did not take Howard to the hospital.18 See Response ¶ 19, at 5.


The Plaintiffs filed their original Complaint in New Mexico State Court, Second Judicial District, State of New Mexico, on June 23, 2017. See Complaint for Violations of Civil Rights Pursuant to §§ 1983 and 1988 and the New Mexico Tort Claims Act and for Damages at 1, filed August 21, 2017 (Doc. 1-1)("Complaint"). The Complaint's Count I alleges excessive force by Franco, Defendant Ben Daffron, Defendant Joshua Chafin, and Defendant Sonny Molina in violation of 42 U.S.C. § 1983. See Complaint ¶¶ 41-49, at 7. The Complaint's Count II asserts a claim under Monell v. Department of Social Services, 436 U.S. 658 (1978)("Monell") against Defendant City of Albuquerque. See Complaint ¶¶ 50-56, at 8-9. The Complaint's Count III alleges loss of consortium for Howard's children. See Complaint ¶¶ 57-60, at 9-10. The City of Albuquerque, invoking federal-question jurisdiction, removed this case to federal court on August 21, 2017. See Notice of Removal at 1, filed August 21, 2017 (Doc. 1). Franco, Daffron, Chafin, and Molina each consented to this case's removal. See Notice of Removal ¶¶ 8-10, at 2-3. The Court granted summary judgment in favor of Daffron, Chafin, and Molina on Counts I and III onFebruary 21, 2020. See Memorandum Order and Opinion at 2, 2020 WL 873937, at *1, filed February 21, 2020 (Doc. 133)("Feb. 21 MOO").

1. The MSJ.

On January 15, 2020, Franco filed the MSJ, invoking the doctrine of qualified immunity, and asked the Court to grant summary judgment in his favor on Counts I and III. See MSJ at 1. Franco notes that the doctrine of qualified immunity shields officials from civil liability for conduct that does not violate clearly established constitutional or statutory rights. See MSJ at 5 (citing Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)). Qualified immunity, Franco notes, protects "'all but the plainly incompetent or those who knowingly violate the law.'" MSJ at 5 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). Franco contends that qualified immunity serves to balance the need to protect public officials from baseless distraction while holding public officials accountable when they act "'in a wholly unjustified manner.'" MSJ at 6 (quoting Locurto v. Safir, 264 F.3d 154, 162-63 (2d Cir. 2001)). Franco contends that this balance demands that qualified immunity is presumed in most cases, such that the plaintiff's burden is "'heavy.'" MSJ at 6 (quoting Albright v. Rodriquez, 51 F.3d 1531, 1534 (10th Cir. 1995)). Franco notes that the Plaintiffs must demonstrate both that Franco violated Howard's constitutional rights, and that those rights were clearly established, but Franco focuses primarily on qualified immunity's clearly established prong. See MSJ at 6-7. Franco accordingly quotes at length the United States Court of Appeals for the Tenth Circuit:

"[P]laintiff must do more than identify a clearly established legal test and then allege that the defendant has violated it. The plaintiff must demonstrate a substantial correspondence between the conduct in question and prior law allegedly establishing that the defendant's actions were clearly prohibited. The 'contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'"

MSJ at 7 (quoting Hannula v. City of Lakewood, 907 F.2d 129, 131 (10th Cir. 1990)(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)))(alteration in MSJ and not in Hannula v. City of Lakewood).

Franco first asserts that he did not violate Howard's constitutional rights. See MSJ at 7. Franco argues that his use of force is reasonable "'in light of the facts and circumstances confronting'" him. MSJ at 8 (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)). Franco contends that the factors which the Supreme Court of the United States of America provides in Graham v. Connor -- the suspected crime's severity, whether the suspect poses and immediate threat to the officer or the public, and whether the suspect is actively resisting or evading arrest --...

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