Warner v. Vill. of Ruidoso

• Decision Date: 30 September 2013
• Docket Number: No. 12cv0627 MCA/GBW,12cv0627 MCA/GBW
• Parties: DAVID WARNER, Plaintiff, v. VILLAGE OF RUIDOSO, a municipal corporation; Village of Ruidoso Attorney DAN BRYANT; Ruidoso Police Officer NELSON; Ruidoso Police Officer JONAS WADE PROCTOR; and Retired Ruidoso Police Chief WOLFGANG BORN, individually and in their official capacities, Defendants.
• Court: U.S. District Court — District of New Mexico

DAVID WARNER, Plaintiff, v. VILLAGE OF RUIDOSO, a municipal corporation;

Village of Ruidoso Attorney DAN BRYANT;

Ruidoso Police Officer NELSON;

Ruidoso Police Officer JONAS WADE PROCTOR; and

Retired Ruidoso Police Chief WOLFGANG BORN,

individually and in their official capacities, Defendants.

No. 12cv0627 MCA/GBW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

SO ORDERED: September 30, 2013

MEMORANDUM OPINION AND ORDER

AND ORDER TO SHOW CAUSE

THIS MATTER is before the Court on Defendants Village of Ruidoso's, Detective Arthur Nelson's, Officer Jonas Wade Proctor's, and former Police Chief Wolfgang Born's Motion for Summary Judgment, filed February 13, 2013 [Doc. 42]. Defendants assert that they are entitled to qualified immunity on all of pro-se Plaintiff David Warner's constitutional claims brought under 42 U.S.C. §1983, and that they also are entitled to dismissal of Warner's supervisory-liability claims as a matter of law. See Doc. 42 at 1. Having considered the parties' submissions, the record, and the applicable law, and being otherwise informed in the premises, the Court denies the motion in part and grants it in part. The Court will further order the Defendants to show cause why, on the undisputed facts as set forth by the parties, the Village and Officers Nelson and Proctor should not be held liable for violation of Warner's First-Amendment right to free speech and why injunctive relief should not issue, all as set forth herein below.

I. APPLICABLE STANDARDS

On a motion for summary judgment , the Court

view[s] the evidence and its reasonable inferences in the light most favorable to the non-movant. Summary judgment is appropriate if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party on the issue. An issue of fact is material if under the substantive law it is essential to the proper disposition of the claim.

Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (internal quotation marks and citations omitted). The ultimate inquiry in a summary-judgment disposition is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).¹

When a defendant asserts qualified immunity at the summary judgment stage, the burden shifts to the plaintiff, who must clear two hurdles to defeat the defendant's motion. The plaintiff must demonstrate, on the facts alleged, that (1) the defendant violated a constitutional right, and (2) the right was clearly established at the time of the alleged unlawful activity. . . . .

A constitutional right is clearly established when, at the time of the alleged violation, the contours of the right were sufficiently clear that a reasonable official would understand that his actions violate that right. . . . While the plaintiff does not have to present a case with an identical factual situation, the plaintiff must show legal authority making it apparent that in the light of pre-existing law a reasonable official would have known that the conduct in question violated the constitutional right at issue. In determining whether a right was clearly established, we look for Supreme Court or Tenth Circuit precedent on point or clearly established weight of authority from other courts finding the law to be as the plaintiff maintains.

Lundstrom v. Romero, 616 F.3d 1108, 1118 (10th Cir. 2010) (internal quotation marks and citation omitted); Storey v. Taylor; 696 F.3d 987, 992 (10th Cir. 2012). "Once the district court determines that the right at issue was 'clearly established,' it becomes defendant's burden to prove that her conduct was nonetheless objectively reasonable." Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1251 (10th Cir. 2003).

The qualified-immunity doctrine "provides ample protection to all but the plainly incompetent or those who knowingly violate the law," Malley v. Briggs, 475 U.S. 335, 341 (1986), and is intended to protect officers not only from "costly and harassing litigation,"but also so that officers will not be unduly "inhibit[ed] . . . in performing their official duties," Medina v. Cram, 252 F.3d 1124, 1127 (10th Cir. 2001). Thus, at the second stage of the qualified-immunity analysis (after the Court concludes that the plaintiff has alleged facts to show that the defendant violated a clearly-established constitutional right), a defendant is entitled to qualified immunity if he can show "in light of the clearly established principles governing [the constitutional question], he could, as a matter of law, reasonably have believed that [his action] was lawful." Anderson v. Creighton, 483 U.S. 635, 641 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 818-29 (1982) ("If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained. But again, the defense would turn primarily on objective factors."). In situations in which, as here, the plaintiff seeks discovery,

it should first be determined whether the actions the [plaintiffs] allege [the defendant police officer] to have taken are actions that a reasonable officer could have believed lawful. If they are, then [the officer] is entitled to dismissal prior to discovery. If they are not, and if the actions [the officer] claims he took are different from thosethe [actions the plaintiffs] allege (and are actions that a reasonable officer could have believed lawful), then discovery may be necessary before [the officer's] motion for summary judgment on qualified immunity grounds can be resolved.

Anderson, 483 U.S. at 646 n.6.

II. ALLEGATIONS IN WARNER'S AMENDED COMPLAINT/UNDISPUTED FACTS AND PROCEDURAL HISTORY

In September, 2008, Warner created a non-profit "Foundation for the Truth" to support his attempts to put pressure on the Village of Ruidoso police department to more fully investigate the shooting death and alleged robbery of his son. See Am. Compl. at 4; Doc. 45 at 10 (Warner's Aff.); see also Doc. 42-1 (Detective Nelson's Aff.). To raise money for the foundation, Warner requested public donations. Warner parked on the Village of Ruidoso's main street. He taped

numerous signs and posters [] to his truck indicating that the Ruidoso police did not take prints, do ballistics, powder residue or any kind of forensics at all in the investigation of the shooting death and robbery of plaintiff's son, and a sign depicting the first amendment to the United States Constitution, "Redress," to name a few as well as a jar in which donations were being accepted².

Am. Compl. at 4. Warner states that he did "not shout[] or chant[] slogans, nor did [he] prevent others (passer byes) from walking along the sidewalk or interfere with others in any way except to ask if they wanted a flier." Id. In May 2009, while Warner was parked on the main street "advocating" and handing out fliers, Ruidoso Police Officer Chavez (who is not a named defendant) told Warner "to remove several signs that were placed on plaintiff's truck or he would be arrested." Id. at 3. Warner "went to Village Hall to procure a permit and was directed by the clerk to go toPlanning and Zoning and was told by Planning and Zoning that a permit was not required" to do what he was doing. Id. at 4. In June 2009, a Village Officer (apparently Defendant Ruidoso Police Officer Jonas Wade Proctor) cited Warner cited for violating N.M. Code of Ordinances ch. 58, art. III, § 58-84(b) (1998) (the "Ordinance"). This Ordinance makes it a crime to "solicit" on public property:

Solicitation on public property. The practice by itinerant vendors or solicitors of going onto public property for the purpose of soliciting money . . . shall be considered a nuisance and punishable under this Code, except as otherwise provided by law or authorized by the council.

Officer Proctor (or whoever cited Warner) further "order[ed] plaintiff to remove all signs from his vehicle and leave the area." Am. Compl. at 4-5. Warner was tried and convicted in municipal court, but his conviction was dismissed after he sought a de novo trial in the state district court. See id. at 4. In July 2009, Detective Nelson, after allegedly receiving "complaints . . . about him soliciting for money," asked Warner if he had a "permit to solicit for funds," and when he responded that he did not, again issued a citation for violation of Ordinance 58-84(b). Doc. 42-1. Detective Nelson also "stated to plaintiff that he could not be on the street with his signs on plaintiff's pickup truck" and "order[ed] plaintiff to remove all signs from his vehicle and leave the area." Am. Compl. at 5. Officer Proctor provided "backup" for Detective Nelson during the citation. See id. Nelson contends that he cited Warner "based on observing that [Warner] was handing out flyers and that we had received complaints from the community that he was handing out flyers and asking for donations." Doc. 42-1. Warner was again convicted in municipal court and, after a de novo trial in the district court, he was again convicted. But he successfully appealed to the New Mexico Court of Appeals, which reversed his conviction. See Am. Compl. at 5.

Warner contends that he was "selectively" cited and prosecuted under the Ordinance, stating that neither the firemen who collect donations for the Muscular Dystrophy charitable organization on the main street "while standing in traffic," nor private musicians who perform on public property in the same area, and "who accept...