Tanner v. San Juan Cnty. Sheriff's Office

• Decision Date: 21 March 2012
• Docket Number: No. CIV 11–0328 JB/ACT.,CIV 11–0328 JB/ACT.
• Citation: 864 F.Supp.2d 1090
• Parties: Donovan TANNER, Plaintiff, v. SAN JUAN COUNTY SHERIFF'S OFFICE, An agency of San Juan County, New Mexico, and Deputy Sheriff Dale Frazier, Individually, and as an Employee of San Juan County Sheriff's Office, and Deputy Sheriff Terry McCoy, individually and as an Employee of San Juan County Sheriff's Office, and Farmington Police Department, an Agency of the City of Farmington, New Mexico, and Misty Taylor, Individual, and as an Employee of, Farmington Police Department, Defendants.
• Court: U.S. District Court — District of New Mexico

864 F.Supp.2d 1090

Donovan TANNER, Plaintiff,

v.SAN JUAN COUNTY SHERIFF'S OFFICE, An agency of San Juan County, New Mexico, and Deputy Sheriff Dale Frazier, Individually, and as an Employee of San Juan County Sheriff's Office, and Deputy Sheriff Terry McCoy, individually and as an Employee of San Juan County Sheriff's Office, and Farmington Police Department, an Agency of the City of Farmington, New Mexico, and Misty Taylor, Individual, and as an Employee of, Farmington Police Department, Defendants.

No. CIV 11–0328 JB/ACT.

United States District Court, D. New Mexico.

March 21, 2012.

Arlon L. Stoker, Farmington, NM, for Plaintiff.

Ronald J. Childress, Klecan & Childress, Albuquerque, NM, for Defendant San Juan County Sheriff's Office and Terry McCoy.

Michael Dickman, Santa Fe, NM, for Defendant Dale Frazier.

Cristin M. Heyns, Lisa Mann, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, NM, for Defendants Farmington Police Department, Misty Taylor, and the City of Farmington.

AMENDED MEMORANDUM OPINION AND ORDER¹

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Defendant Misty Taylor's Motion for Summary Judgment Based on Immunity, filed June 6, 2011 (Doc. 16) (“Motion”). The Court held a hearing on February 16, 2012. The primary issues are: (i) whether Defendant Misty Taylor violated Plaintiff Donovan Tanner's rights under the Fourth Amendment to the United States Constitution by not intervening during his allegedly unlawful detention and arrest; (ii) whether Taylor violated Tanner's Fourth Amendment rights by not intervening in Defendant Dale Frazier's allegedly excessive use of force; (iii) whether Taylor violated Tanner's Fourth Amendment rights by not intervening in Defendant Terry McCoy's allegedly excessive use of force; and (iv) whether, assuming any violations occurred, Taylor violated clearly established law. The Court will grant the Motion. The Court concludes that Taylor had no obligation to intervene in the investigatory detention and subsequent arrest that Frazier conducted, because a reasonable officer in her position would have believed that Frazier had both reasonable suspicion and probable cause that D. Tanner had committed several offenses. Based on the information available to Taylor, the level of force Frazier used, and the surrounding circumstances of the incident, Frazier's conduct never triggered a duty for Taylor to intervene in the context of D. Tanner's excessive force claim. In light of the minimal amount of force McCoy used and the surrounding circumstances of the incident, Taylor had no reason to believe that McCoy used excessive force. Assuming that some of Frazier's conduct triggered a duty for Taylor to intervene, she did not violate any clearly established law by failing to intervene. Assuming that Frazier's conduct triggered a duty to intervene, Taylor had no realistic opportunity to intervene, because she was occupied with Myron Tanner, D. Tanner's brother. Finally, assuming that McCoy's conduct triggered a duty to intervene, that his conduct lasted for approximately three seconds prevented Taylor from having a realistic opportunity to intervene.

FACTUAL BACKGROUND

D. Tanner disputes some of Taylor's asserted facts. See Plaintiff's Response to Defendant Misty Taylor's Motion for Summary Judgment Based on Immunity at 5–10, filed June 27, 2011 (Doc. 21)(“Response”). Taylor argues that D. Tanner does not properly controvert many of her asserted facts in compliance with the local rules. See Reply in Support of Defendant Misty Taylor's Motion for Summary Judgment Based on Immunity at 2–3, filed July 11, 2011 (Doc. 25) (“Reply”). D.N.M.LR–Civ. 56.1(b) provides: “All material facts set forth in the statement of the movant will be deemed admitted unless specifically controverted.” D.N.M.LR–Civ. 56.1(b). In contravention of D.N.M.LR–Civ. 56.1,² D. Tanner does not readily distinguish between Taylor's asserted facts which he intends to dispute and any additional material facts which he seeks to assert.

At approximately 11:45 p.m. on March 17, 2011, St. Patrick's Day, Taylor was on routine patrol, driving in her police vehicle on West Main Street in Farmington, New Mexico. See Memorandum in Support of Defendant Taylor's Motion for Summary Judgment ¶ 1, at 2, filed June 6, 2011 (Doc. 17) (“Memorandum in Support of Motion”)(setting forth this fact); Statement of Officer Misty Taylor ¶ 1, at 1 (not dated), filed June 6, 2011 (Doc. 17–1) (“Taylor Statement”); Internal Affairs Interview of Taylor ¶ 3, at 4 (not dated), filed June 6, 2011 (“Taylor Interview”); Response at 5 (not disputing this fact). While driving, Taylor observed a San Juan County Sheriff's patrol vehicle stopped on Commercial Street about three car-lengths south of Main Street. See Memorandum in Support of Motion ¶ 1, at 2 (setting forth this fact); Taylor Statement ¶ 1, at 1; Taylor Interview ¶ 3, at 4; Response at 5 (not disputing this fact). There was a crowd of between twelve to fifteen people standing near the vehicle. See Memorandum in Support of Motion ¶ 1, at 2; Taylor Statement ¶ 1, at 1; Taylor Interview ¶ 3, at 4.³ Taylor stopped her vehicle to assist the San Juan County Sheriff's officer, Frazier, and to find out what was occurring. See Memorandum in Support of Motion ¶ 2, at 2 (setting forth this fact); Taylor Statement ¶ 2, at 1; Response at 5 (not disputing this fact). When Taylor exited her vehicle, she could hear Frazier yell out verbal commands, but could not make out what he was saying. See Memorandum in Support of Motion ¶ 3, at 2; Taylor Statement ¶ 2, at 1; Taylor Interview ¶ 3, at 4; Response at 5 (not disputing this fact). It is disputed to whom Frazier was directing these verbal commands.⁴

Taylor observed D. Tanner and another man who was D. Tanner's brother, M. Tanner, walking toward Frazier's vehicle, and heard Frazier instruct them to stop. See Memorandum in Support of Motion ¶ 4, at 2 (setting forth this fact); Taylor Statement ¶¶ 3–9, at 1; Taylor Interview ¶ 4, at 4–5; Response at 5 (not disputing this fact). It is disputed whether D. Tanner and M. Tanner were obeying Frazier's instructions, or attempting to leave the scene against Frazier's orders, although Frazier's dashboard camera indicates that the men were walking away from Frazier and someone immediately afterward said “Let's go” before Frazier started yelling.⁵ Taylor observed Frazier as he followed the men and talked to them about what had happened. See Memorandum in Support of Motion ¶ 4, at 2 (setting forth this fact); Taylor Statement ¶¶ 3–9, at 1; Taylor Interview ¶ 4, at 4–5; Response at 5–6 (not disputing this fact). An employee of Three Rivers Brewery, Briana Kneier, obtained Taylor's attention, and Taylor stopped to talk with her. See Memorandum in Support of Motion ¶ 5, at 2 (setting forth this fact); Taylor Statement ¶¶ 10–11, at 2; Taylor Interview ¶¶ 6–7, at 5; Response at 6 (not disputing this fact). When Taylor talked with Kneier, she reported that there was a scuffle in the bar and that one of the brothers punched an employee at the bar, but stated that her information was from other employees and that she did not know who attacked whom.⁶ Kneier stated that someone other than the brother who punched the employee then fired pepper spray. See Memorandum in Support of Motion ¶ 5, at 1; Taylor Statement ¶¶ 10–11, at 2; Taylor Interview ¶¶ 6–7, at 5.⁷ While Taylor was speaking with Kneier, Taylor's back was towards Frazier, but she heard him yelling. See Memorandum in Support of Motion ¶ 6, at 2; Taylor Statement ¶¶ 12–13, at 2; Taylor Interview ¶¶ 7–8, at 5–6; Response at 6–7 (not disputing this fact). During this interview with Kneier, Taylor looked over her shoulder several times in the direction where Frazier was talking to D. Tanner and his brother. See Response ¶ 7, at 6–7 (setting forth this fact); DVD Recording of Officer Misty Taylor's Dashboard Camera at 23:46:28–47:15 (taken March 17, 2011), filed June 27, 2011 (Doc. 34–2)(Ex. 3) (“Taylor Dashboard Camera”).⁸ During the interview, Taylor could hear Frazier's yelling. See Memorandum in Support of Motion ¶ 6, at 2 (setting forth this fact); Taylor Statement ¶¶ 12–13, at 2; Taylor Interview ¶¶ 7–8, at 5–6; Response at 6–7 (not disputing this fact). While Taylor was interviewing Kneier, Frazier dragged D. Tanner to the police vehicle and slammed him on the hood of the vehicle, and began to beat him shortly afterwards. See Response ¶ 7, at 6–7 (setting forth this fact); DVD Recording of Officer Dale Frazier's Dashboard Camera at 23:46:55–47:30 (taken March 17, 2011), filed June 27, 2011 (Doc. 34–1)(Ex. 2)(“Frazier Dashboard Camera”); Reply at 2–3 (not disputing this fact). Before Taylor walked over to the vehicle, she was standing approximately twenty feet away. See Response ¶ 7, at 7 (setting forth this fact); Taylor Dashboard Camera at 23:46:28–47:15; Reply at 2–3 (not disputing this fact).

Once she turned towards Frazier and saw D. Tanner on the hood of Frazier's vehicle, Taylor had an unobstructed view of the struggle between Frazier and D. Tanner, including Frazier pushing his flashlight against D. Tanner's throat—which lasted for approximately ten seconds before Frazier removed the flashlight from D. Tanner's throat. See Response ¶ 7, at 6–7; Frazier Dashboard Camera at 23:46:55–47:30; Reply at 2–3 (not disputing this fact). Taylor then observed both Frazier and D. Tanner holding Frazier's flashlight. See Memorandum in Support of Motion ¶ 6, at 2–3 (setting forth this fact); Taylor Statement ¶¶ 12–13, at 2; Taylor Interview ¶¶ 7–8, at 5–6; Response at 6–7 (not disputing this fact). D. Tanner asserts that he attempted to push the flashlight away from his throat and larynx, because his airway was blocked and he was unable to breathe. See Response ¶ 8, at 7 (setting forth this fact); Affidavit of Donovan Tanner ¶¶ 14–15, at 3 (executed June 25, 2011), filed June 27, 2011 (Doc. 21–6)(“D. Tanner Aff.”); Reply at 2–3...