Stevenson v. City of Albuquerque

• Citation: 446 F.Supp.3d 806
• Decision Date: 21 February 2020
• Docket Number: No. CIV 17-855 JB\LF,CIV 17-855 JB\LF
• Parties: Tericia 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.
• Court: U.S. District Court — District of New Mexico

446 F.Supp.3d 806

Tericia 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.

No. CIV 17-855 JB\LF

United States District Court, D. New Mexico.

Filed February 21, 2020

Louren Oliveros, Robert J. Gorence, Gorence & Oliveros, P.C., Albuquerque, New Mexico, Attorneys for the Plaintiffs.

David Roman, Robles, Rael, & Anaya, P.C., Albuquerque, New Mexico, Attorney for Defendants Ben Daffron, Joshua Chafin, and Sonny Molina.

Jonlyn M. Martinez, Law Firm of Jonlyn M. Martinez, Albuquerque, New Mexico, Attorney for Defendant Jonathan Franco.

Stephanie Griffin, Esq., Deputy City Attorney, Albuquerque, New Mexico, Attorney for Defendant City of Albuquerque.

MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGE THIS MATTER comes before the Court on Defendants Daffron, Chafin, and Molina's Motion for Summary Judgment on the Basis of Qualified Immunity, filed October 4, 2019 (Doc. 102)("MSJ"). The Court held a hearing on January 10, 2020. The primary issue is whether Defendants Ben Daffron, Joshua Chafin, and Sonny Molina ("Movants"), police officers with the Albuquerque Police Department ("APD"), are entitled to qualified immunity when they allegedly kneed Majestic Howard in the torso, shoulder, and head while attempting to arrest him. More specifically, the Court must determine: (i) whether Daffron violated Howard's clearly established rights under the Fourth Amendment to the Constitution of the United States of America by using objectively unreasonable force in arresting Howard; (ii) whether Chafin and Molina violated Howard's clearly established constitutional rights when they did not intervene to prevent Daffron from violating Howard's constitutional rights; and (iii) whether Daffron, Chafin, and Molina violated Howard's clearly established constitutional rights when they did not prevent Franco's use of force against Howard. Additionally, the Plaintiffs request leave to take additional depositions under rule 56(d) of the Federal Rules of Civil Procedure. The Court concludes that: (i) Daffron is entitled to summary judgment on the Plaintiffs' excessive force claim on Howard's behalf, because Daffron's use of force was objectively reasonable; (ii) Chafin and Molina are entitled to qualified immunity on the Plaintiffs' failure-to-intervene claim on Howard's behalf regarding Daffron's use of force, because the Plaintiffs cannot show that Daffron violated Howard's constitutional rights, and establishing a constitutional violation is a necessary predicate to any claim that an officer failed to intervene; (iii) even if Daffron's use of force violated Howard's Fourth Amendment rights, Chafin and Molina did not violate Howard's clearly established Fourth Amendment rights by failing to intervene, because they had no realistic opportunity to do so; and (iv) assuming Franco used objectively unreasonable force, Daffron, Chafin, and Molina did not violate Howard's clearly established rights by failing to prevent Franco's use of force, because they had no realistic opportunity to do so. Finally, the Court concludes that the Plaintiffs are not entitled to additional discovery under rule 56(d), because the Plaintiffs have not identified with specificity the facts that additional discovery will yield, and because additional discovery is not necessary to defend against the MSJ. Accordingly, the Court grants the MSJ.

FACTUAL BACKGROUND

The Court draws the factual background from the parties' undisputed material facts in their summary judgment motion papers for the MSJ. See MSJ ¶¶ 1-30, at 4-8; Plaintiffs' Response in Opposition to Daffron, Chafin, and Molina's Motion for Summary Judgment on the Basis of Qualified Immunity ¶¶ 1-19, at 2-10, filed November 4, 2019 (Doc. 107)("Response"), id. at ¶¶ A-Z, at 22-34.¹

On October 30, 2015, Howard entered a City-owned bait vehicle² near Indian School Boulevard and University Avenue, in Northeast Albuquerque, New Mexico. See MSJ ¶ 1, at 4 (asserting this fact)(citing Bait Car Video at 00:01-00:05, filed October 4, 2019 (Doc. 104-1)); Response ¶¶ 1, 3, at 2-3 (citing Computer Aided Dispatch Report at 1, filed October 4, 2019 (Doc. 102-1)("CAD Report").³ Using a screwdriver, Howard started the bait vehicle and began driving it. See MSJ ¶ 2, at 4 (asserting this fact)(citing Bait Car Video at 00:04-00:46.⁴ At 1:14 a.m., Albuquerque Police Department ("APD") dispatch noted the bait vehicle had been stolen, and dispatched this information to Daffron and Franco. See MSJ ¶¶ 3-4, at 4.⁵ At 1:17 a.m., Molina and Jones were dispatched to locate the stolen vehicle. See MSJ ¶ 5, at 4; Response ¶ 3, at 3.⁶ At 1:18 a.m., Chafin was dispatched to locate the stolen vehicle. See MSJ ¶ 4, at 4; Response ¶ 3, at 3 (noting that "Chafin responded to a priority 1 call for a BAIT vehicle theft").

While pursuing the vehicle, APD dispatch tried at least once to disable the vehicle, but the attempt was unsuccessful. See MSJ ¶ 8, at 5; Daffron Lapel Video at 00:56-01:03.⁷ Howard drove the vehicle from University Avenue and Indian School Boulevard in Northeast Albuquerque to Hazeldine Avenue and Broadway Boulevard, in Southwest Albuquerque. See MSJ ¶ 7, at 5 (stating that the bait vehicle "stopped near Hazeldine")(citing CAD Report at 2).⁸ Howard drove within posted speed limits. See Response ¶ 3, at 3 (stating this fact)(citing CAD Report at 1-2).⁹ The vehicle stopped near Hazeldine Avenue in Southwest Albuquerque. See MSJ ¶ 7, at 5 (stating this fact)(citing CAD at 2).¹⁰ Franco viewed the stop as high-risk. See MSJ ¶ 9, at 5 (stating this fact)(citing Franco Depo. at 28:9-18).¹¹ When the bait car that Howard was driving stopped,¹² officers immediately exited their service vehicles, drew their service weapons, and ordered Howard to exit the bait vehicle with his hands in the air. See MSJ ¶ 9, at 5 (stating this fact)(citing Daffron Lapel Video at 2:20-25 (dated October 30, 2015), filed October 4, 2019 (Doc. 104-4); Jones Lapel Video at 1:18-59 (dated October 30, 2015), filed October 4, 2019 (Doc. 104-5)).¹³ Howard remained in the vehicle for two minutes and four seconds while officers shouted for him to exit the vehicle. See MSJ ¶ 11, at 5 (stating this fact)(citing Daffron Lapel Video at 2:16-4:20; Jones Lapel Video at 1:18-159).¹⁴ While in the vehicle, Howard did not communicate with or threaten the officers. See Response ¶ 7, at 4. (stating this fact)(citing Franco Depo. at 43:24-44:9).¹⁵

Howard exited the vehicle and fled on foot. See MSJ ¶ 12, at 5 (stating this fact)(citing Franco Depo. at 33:13-22 (Oliveros, Franco); Daffron Lapel Video at 4:30-4:40; Jones Lapel Video at 1:59-2:02).¹⁶ Officers pursued Howard on foot.

See MSJ ¶ 13, at 5 (citing Franco Depo. at 34:18-35:10 (Oliveros, Franco)).¹⁷ Franco, Molina, Daffron, and Chafin pursued Howard, with Jones and Floyd following a short distance behind the others. See MSJ ¶ 14, at 5 (stating this fact)(citing Franco Depo. at 34:18-35:10 (Oliveros, Franco)); Franco Lapel Video at 6:55-7:03, filed October 4, 2019 (Doc. 104-7); Response ¶ 8, at 4 (stating this fact)(citing Chafin Lapel Video at 2:40-50).¹⁸ Franco was closest behind Howard in the foot pursuit. See MSJ ¶ 14, at 5 (stating this fact)(citing Franco Lapel Video at 6:55-7:03); Response ¶ 9, at 4 (admitting this fact). Howard ran toward a mattress leaning against a chain-link fence. See MSJ ¶ 15, at 6 (stating this fact)(citing Franco Depo. at 34:18-35-10 (Oliveros, Franco); Franco Lapel Video at 7:03-7:05).¹⁹

As Franco was closing, Howard stopped in front of the mattress and sat down. See Response ¶ 10, at 5 (stating this fact)(citing generally Affidavit of Majestic Howard (taken Nov. 4, 2019), filed November 4, 2019 (Doc. 107-28)("Howard Aff."); Franco Lapel Video at 7:02).²⁰ Franco's momentum carried him past Howard, but Franco quickly rounded and reached Howard. See MSJ ¶¶ 17-18 (stating that Franco ran past Howard)(citing Franco Depo. at 37:7-22 (Franco); Franco Lapel Video at 7:04-7:06).²¹ Franco had a "clear visual" on Howard and did not see any weapons before he made contact with Howard. Response ¶ 11, at 5 (stating this fact)(citing Franco Depo. at 40:18-41:16).²² Franco made physical contact with Howard, and as Franco reached Howard, Howard went from a sitting position to a lying position. See MSJ ¶ 17, at 6 (stating that Franco "grabbed Howard's arm")(citing Franco Depo. at 37:7-22; Franco Lapel Video at 7:05).²³ Daffron, Chafin, and Molina arrived shortly after Franco brought Howard to a lying position. See MSJ ¶ 19 (referring to "officers")(citing Franco Depo. at 42:12-18).²⁴ When Howard was prone, one of Howard's hands was underneath his body, and the officers could not see his hand. See MSJ ¶ 19, at 6 (stating this fact)(citing Franco Depo. at 41:22-23; id. at 42:12-18).²⁵ Officers "gave Howard multiple commands to show them his hands." MSJ ¶ 20, at 6 (citing Franco Depo. at 45:3-11; Daffron Lapel Video at 4:45-4:51; Jones Lapel Video at 2:10-2:35). See Response ¶ 12, at 5 (stating that the "Plaintiffs admit UMF No. 20"). Despite the officers' commands, the officers were not immediately able to secure both of Howard's hands, and Franco believed that Howard was resisting the officers' commands. See MSJ ¶ 21, at 6 (stating this fact)(citing Franco Depo. at 45:3-11).²⁶ Officers were able to secure Howard's left hand, but his right hand remained under his body. See MSJ ¶ 22, at 6 (stating this fact)(citing Molina Lapel Video at 2:52-2:55).²⁷ Using his knee, Daffron struck Howard's shoulder three times. See MSJ ¶ 23, at 7 (stating this fact)(citing Franco Depo. at 46:22-77:9; Daffron Lapel Video at 4:40-4:50; Jones Lapel Video at 2:22-2:26).²⁸ Daffron delivered his strikes over a four-second...